UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ryan Joseph Swain

v. Case No. 18-cv-145-PB Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Ryan Swain moves to reverse the decision of the Acting

Commissioner of the Social Security Administration (“SSA”) to deny

his applications for Social Security disability insurance

benefits, or DIB, under Title II of the Social Security Act,

, and for supplemental security income, or SSI, under

Title XVI,

. The Acting Commissioner, in turn,

moves for an order affirming her decision. For the reasons that

follow, this matter is remanded to the Acting Commissioner for

further proceedings.

I. Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

1

(g) (setting out standard of review for decisions

on claims for DIB); see also

(c)(3) (applying §

405(g) to SSI decisions). However, I “must uphold a denial of

social security disability benefits unless ‘the [Acting

Commissioner] has committed a legal or factual error in evaluating

a particular claim.’” Manso-Pizarro v. Sec’y of HHS,

(1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson,

(1989)).

II. Background

The parties have submitted a Joint Statement of Material

Facts. That statement, document no. 8, is part of the court’s

record and will be summarized here, not repeated in full.

Swain graduated from Boston University in 2011. He remained

in Boston until he moved in with his parents in October of 2012.

In January of 2017, Swain was working: (1) four hours a week as a

math tutor; (2) five hours a week as a classroom paraprofessional

at the school where his mother worked as a nurse; and (3) 10 hours

a week as a recess monitor, also at his mother’s school. At the

hearing he received after the SSA denied his applications, Swain

testified that he was late for his recess-monitor job two or three

times a week, but that the school accommodated his inability to

get to work on time.

In November of 2011, Swain saw his primary-care provider, Dr.

Joseph Nosiff, complaining of depression. Dr. Nosiff gave Swain a

diagnosis of “depressive disorder not elsewhere classified,”

2 Administrative Transcript (hereinafter “Tr.”) 362, and later

prescribed him anti-depressants. In addition to receiving

medication for his mental impairments from both Dr. Nosiff and a

psychiatrist, Swain has also received counseling and therapy from

psychologists and psychiatrists.

In May of 2013, Swain was picked up by the police, who found

him wandering the streets in the middle of the night. They

transported him to a hospital emergency room where he was

diagnosed with recurrent severe major depressive disorder, without

psychotic features.

In June of 2013, Dr. Bruce Altman, a psychologist, referred

Swain to Dr. Karen Pearson for psychological testing. 1 In the

summary of her Psychological Testing Report, Dr. Pearson stated:

[W]hat is seen is supportive of a Major Depressive Episode without psychotic features in a young man with Generalized Anxiety Disorder. There is a situational piece to Ryan’s current dysfunction and thus an Adjustment Disorder with Mixed Anxiety and Depression may layer on top of that which is more biologically based. Finally . . . it would appear that Ryan has prominent dependent, schizotypal and obsessive compulsive personality features.

Tr. 316.

1In the decision from which Swain appeals, the Administrative Law Judge referred to this as a “consultative examination,” Tr. 31, but because it pre-dated Swain’s applications for benefits, it was probably not a consultative examination within the scope of the applicable regulations, which define “[a] consultative examination [as] a physical or mental examination or test purchased for [a claimant] at [the SSA’s] request,”

& 416.919.

3 In August of 2013, Swain filed applications for DIB and SSI,

claiming that he had been disabled since July of 2011 as a result

of depression, anxiety, attention-deficit disorder, and obsessive-

compulsive disorder.

In December of 2015, Dr. Edward Martin, a non-examining

state-agency psychological consultant, reviewed Swain’s medical

records, including a November 2015 Mental Impairment Questionnaire

completed by Dr. Christianna Skoczek, a treating psychologist.

Based upon his review of those records, Dr. Martin performed a

psychiatric review technique (“PRT”) assessment. 2 In performing

the PRT, Dr. Martin considered two impairments, affective

disorders and anxiety disorders. He determined that Swain had:

(1) mild restrictions in his activities of daily living; (2) mild

difficulties in maintaining social functioning; (3) mild

difficulties in maintaining concentration, persistence or pace;

and (4) no repeated episodes of decompensation, each of extended

duration. Based upon those findings, Dr. Martin determined that

neither of Swain’s two mental impairments was severe enough to

qualify as a “listed” impairment under the applicable SSA

regulations, and he also concluded that Swain’s impairments did

not even meet the lesser standard under which an impairment

2 The SSA uses the PRT to evaluate the severity of mental impairments. See

.1520a & 416.920a.

4 qualifies as severe. 3 See Tr. 89, 99. Finally, Dr. Martin did not

assess Swain’s mental residual functional capacity (“RFC”), 4

presumably because he had found that Swain had no severe mental

impairments.

In December of 2015, the SSA denied Swain’s claims. He

requested a hearing before an Administrative Law Judge (“ALJ”),

and one was scheduled for January of 2017.

In December of 2016, Dr. Skoczek, who had treated

Swain twice a week since January of 2015, completed a form

captioned “Mental Impairment Questionnaire (RFC & Listings).” She

indicated diagnoses of major depressive disorder and anxiety.

With respect to the criteria the SSA uses to determine

whether those impairments are severe enough to qualify as listed

impairments, Dr. Skoczek found that Swain had: (1) marked

restrictions in his activities of daily living; (2) marked

difficulties in maintaining social functioning; (3) frequent

deficiencies in maintaining concentration, persistence or pace;

3 The SSA regulations define a “severe” impairment as “any impairment or combination of impairments which significantly limits [a person’s] physical or mental ability to do basic work activities.”

(c) & 416.920(c).

4 “An applicant’s residual functional capacity ‘is the most [he or she] can still do despite [his or her] limitations.’” Purdy v. Berryhill,

, 10 n.2 (1st Cir. 2018) (quoting

(a)(1), a regulation governing claims for SSI that is worded identically to

(a)(1), which governs claims for DIB) (brackets in the original).

5 and (4) continual episodes of deterioration or decompensation in

work or work-like settings.

With respect to Swain’s mental RFC, Dr. Skoczek opined that

he had: (1) an unlimited or very good capacity for one of 16

mental abilities and aptitudes necessary to do unskilled work; (2)

a good capacity for eight of them; (3) a fair capacity for four of

them; and (4) a variable capacity for the remaining two. With

respect to the five mental abilities and aptitudes necessary to

perform particular types of jobs, Dr. Skoczek opined that Swain

had a fair to good capacity for each of them. Finally, Dr.

Skoczek opined that Swain would be absent from work more than

three times a month because of his mental impairments or treatment

for them.

In January of 2017, Dr. Richard Naimark, a psychiatrist who

had treated Swain monthly since March of 2013, completed a Mental

Residual Functional Capacity Assessment on Swain. With respect to

understanding and memory, Dr. Naimark opined that Swain had

moderate limitations in one of three listed abilities and marked

limitations in the other two. 5 With respect to sustained

concentration and persistence, Dr. Naimark opined that Swain had

moderate limitations in one of eight listed abilities, marked

limitations in four abilities, and extreme limitations in the

5 The form Dr. Naimark completed defines a “marked” limitation as one in which “[t]he ability to function . . . is seriously limited.” Tr. 499.

6 remaining three. 6 With respect to social interaction, Dr. Naimark

opined that Swain had mild limitations in one of five listed

abilities, marked limitations in three abilities, and extreme

limitations in the remaining ability. With respect to adaptation,

Dr. Naimark opined that Swain had marked limitations in one of

five listed abilities and extreme limitations in the other four.

Finally, he opined that Swain’s limitations would interfere with

his ability to work on a regular and sustained basis at least 20

percent of the time, and that he would miss “many” days of work

each month because of his mental impairments or treatment for

them.

Just before his hearing, Swain submitted several pieces of

evidence to the ALJ, only some of which he accepted, but because

the ALJ’s decision on that matter is not a subject of claimant’s

appeal, there is no need to describe that evidence.

At Swain’s hearing, the ALJ took testimony from a vocational

expert (“VE”), to whom the ALJ posed three hypothetical questions.

In the first one, the ALJ asked the VE to consider

an individual of the same age, education, [and] work experience as the Claimant [and who] has no exertional limitations but is limited to simple routine work making simple work-related decisions; occasional interaction with the supervisors, coworkers, and the general public; and time off task can be accommodated by normal breaks and lunch periods.

6 The form Dr. Naimark completed defines an “extreme” limitation as one in which “[t]he ability to function . . . is precluded.” Tr. 499.

7 Tr. 77. The VE testified that the person the ALJ described could

not perform Swain’s past work but could perform the jobs of

cleaner-housekeeper, dishwasher, and trash collector. In his

second hypothetical question, the ALJ posited a person with the

same limitations as the person in the first question, but who

“would be off task 5 percent of the time in an eight-hour work

day.” Tr. 79. The VE testified that the additional limitation

would have no effect on a person’s ability to do the three jobs he

had previously identified. In his third hypothetical, the ALJ

posited a person with the same limitations as the person in the

second question, but who could “be expected to be absent from work

three or more days a month.”

The VE testified that there are

no jobs that could be performed by a person who would be absent

from work that frequently. Finally, in response to a question

from Swain’s counsel, the VE testified that a person who was 10 to

15 minutes late for work, four or more times a month, would be

precluded from working.

After the hearing, the ALJ issued a decision in which he

found that Swain: (1) had two severe impairments, “affective

disorder and anxiety disorder,” Tr. 27; but (2) did “not have an

impairment or combination of impairments that [met] or medically

equal[ed] the severity of one of the listed impairments” in the

Social Security regulations,

The ALJ gave Swain the following

RFC:

8 [T]he claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the individual is limited to simple, routine work, making simple work-related decisions. The individual can occasionally interact with supervisors, co-workers, and the general public. Time off task can be accommodated by normal breaks and lunch periods.

Tr. 29-30. In his discussion of Swain’s RFC, the ALJ said that he

was not persuaded by Dr. Skoczek’s opinion and found that Dr.

Naimark’s opinion had little probative value. He concluded his

discussion of the opinion evidence this way:

Additional medical evidence received in the course of developing the claimant’s case for review at the hearing, as well as evidence in the form of credible testimony at the hearing, consistent with medical evidence in the record justifies a conclusion that the claimant’s impairments are more limiting that was concluded by the state examiner, Dr. Martin Ph.D. Overall, the evidence as described above, supports the finding that the claimant is more limited than Dr. Martin determined but not as limited as alleged by other medical sources.

Tr. 33 (citations omitted).

Based upon the RFC the ALJ assigned Swain and the testimony

of the VE, the ALJ determined that Swain was capable of performing

the jobs of cleaner-housekeeper, dishwasher, and trash collector

and, as a consequence, was not disabled. Swain appealed his

unfavorable decision to the SSA’s Appeals Council (“AC”), which

declined review. The AC also declined to consider several pieces

of new evidence that Swain had attempted to submit, but because

the AC’s decision on that matter is not a subject of claimant’s

appeal, there is no need to describe that evidence.

9 III. Discussion

A. The Legal Framework

To be eligible for DIB, a person must: (1) be insured for such

benefits; (2) not have reached retirement age; (3) have filed an

application; and (4) be under a disability.

(a)(1)(A)-(D). To be eligible for SSI, a person must be aged,

blind, or disabled, and must meet certain requirements pertaining

to income and assets.

(a). The only question in

this case is whether the ALJ correctly determined that Swain was

not under a disability from July 1, 2011, through March 15, 2017,

which is the date of the ALJ’s decision.

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI, an ALJ is required

to employ a five-step sequential evaluation process. See

(DIB) & 416.920 (SSI).

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

10 Purdy v. Berryhill,

(1st Cir. 2018) (quoting Seavey

v. Barnhart,

(1st Cir. 2001); citing

).

At the first four steps in the sequential evaluation process,

the claimant bears both the burden of production and the burden of

proof. See Purdy,

(citing Freeman v. Barnhart,

(1st Cir. 2001)); see also Bowen v. Yuckert,

(1987). He must prove he is disabled by a

preponderance of the evidence. See Mandziej v. Chater,

(D.N.H. 1996) (citing Paone v. Schweiker,

(D. Mass. 1982)). 7 Finally,

[i]n assessing a disability claim, the [Acting Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the claimant or other witness; and (3) the [claimant]’s educational background, age, and work experience. Mandziej,

(citing Avery v. Sec’y of HHS,

(1st Cir. 1986); Goodermote v. Sec’y of HHS,

(1st Cir. 1982)).

B. Swain’s Claims

Swain claims that: (1) the ALJ and/or the AC erred at step 3

of the sequential evaluation process by failing to find that his

7 At step 5, the burden of proof shifts to the Acting Commissioner, see Seavey,

(citing Arocho v. Sec’y of HHS,

(1st Cir. 1982)), but the Acting Commissioner’s step 5 determination is not at issue here, so there is no need to describe the mechanics of step 5.

11 depression met the conditions for the impairment described in

Listing 12.04 in the Social Security regulations; 8 and (2) the ALJ

erred in assessing his RFC. Swain’s second claim warrants a

remand.

“With a few exceptions . . ., an ALJ, as a lay person, is not

qualified to interpret raw data in a medical record.” Manso-

Pizarro,

(citing Perez v. Sec’y of HHS,

(1st Cir. 1991); Gordils v. Sec’y of HHS,

(1st Cir. 1990)). Thus, when a claimant’s RFC is at issue,

and the ALJ must measure the claimant’s capacities, “an expert’s

RFC evaluation is ordinarily essential unless the extent of

functional loss, and its effect on job performance, would be

apparent even to a lay person.” Manso-Pizarro,

(quoting Santiago v. Sec’y of HHS,

(1st Cir. 1991)).

An expert’s RFC evaluation is typically presented in the form of a

medical opinion, and when considering an application for benefits,

the SSA is obligated to “evaluate every medical opinion [it]

receive[s],”

(c) & 416.927(c).

For applications such as Swain’s, which was filed before

March 27, 2017, medical opinions are evaluated according to the

factors described in

(c)(1)-(6) &

8 After Swain’s hearing, but before the ALJ issued his decision, Listing 12.04 was changed from “affective disorders” to “depression, bipolar, and related disorders,” and the conditions for establishing a listing-level impairment under that listing changed as well.

12 416.927(c)(1)-(6). 9 Moreover, because Drs. Skoczek and Naimark are

both treating sources, their opinions are “entitled to controlling

weight if they are ‘well-supported by medically acceptable

clinical and laboratory diagnostic techniques and [are] not

inconsistent with the other substantial evidence in [Swain’s] case

record.” McCormick v. Berryhill, No. 16-cv-321-LM,

, at *5 (D.N.H. Sept. 22, 2017) (quoting

(c)(2) & 416.927(c)(2)). But even when an ALJ does not

give controlling weight to the opinion of a treating source, he

must give good reasons for the amount of weight he does give it.

See

(c)(2) & 416.927(c)(2).

Here, Swain’s RFC is at issue; he claims that the ALJ erred

in assessing his RFC by “fail[ing] to take into account the

opinion evidence provided by [his] treating psychiatrist [Dr.

Naimark] and [his treating] psychologist [Dr. Skoczek],” Cl.’s

Mem. of Law (doc. no. 6-1) 3. That opinion evidence, in turn,

appears in several documents, including two the ALJ considered,

Dr. Skoczek’s December 2016 Mental Impairment Questionnaire and

Dr. Naimark’s January 2017 Mental Residual Functional Capacity

Assessment. While the ALJ devoted a full paragraph of his

decision to each of those two documents, he did not adequately

address the RFC opinions in Dr. Skoczek’s questionnaire.

9 For applications filed after March 27, 2017, different regulations apply, i.e.,

.1520c & 416.920c.

13 This is what the ALJ had to say about the opinions in Dr.

Skoczek’s questionnaire:

Dr. Skoczek surmised the claimant has marked restrictions in activities of daily living, maintaining social functioning, and concentration, persistence and pace. Dr. Skoczek suggested the claimant[] experienced “continual” episodes of decompensation, which waxed and waned. I am not persuaded by this assessment, as it is not supported by the overall record of evidence. As discussed [in] detail throughout this decision, the claimant’s mental status examinations showed no more than moderate findings (See Ex. 5F). The claimant simultaneously maintained multiple part-time jobs. Finally, by its very definition, there is no evidence that the claimant experienced a single episode of decompensation, never mind “continual” episodes.

Tr. 32. The problem with the ALJ’s evaluation of the opinions in

Dr. Skoczek’s questionnaire is that he said nothing about her

opinions on Swain’s RFC.

The caption of the form that Dr. Skoczek completed indicates

that it was designed for use in conducting both PRT assessments

and RFC assessments, which are two different things, see Social

Security Ruling 96-8p,

, at *4 (S.S.A. July 2, 1996)

(explaining that the PRT is used to assess severity at step 2 and

to determine whether an impairment meets or medically equals a

listing at step 3, while “[t]he mental RFC assessment used at

steps 4 and 5 of the sequential evaluation process requires a more

detailed assessment by itemizing various functions contained in

the broad categories found in paragraphs B and C of the adult

mental disorders listings in 12.00 of the Listing of Impairments,

and summarized on the PRT [form]”).

14 Here, while Dr. Skoczek addressed issues pertaining to both

her PRT analysis and Swain’s RFC in her questionnaire, it is clear

that the ALJ limited his discussion to the PRT aspect of Dr.

Skoczek’s questionnaire, see

.1520a(c)(3) &

416.920a(c)(3) (2016) (describing components of the PRT assessment

in force when Dr. Skoczek completed her questionnaire). 10 In other

words, the ALJ said nothing about the opinions that Dr. Skoczek

expressed in the portion of her form devoted to Swain’s RFC,

including her opinion that he would be absent from work more than

three times a month due to his mental impairments or treatment for

them. Given the ALJ’s obligation to evaluate every opinion in

Swain’s case file, see

(c) & 416.927(c), his

failure to address Dr. Skoczek’s opinions on Swain’s RFC merits a

remand. A remand seems especially appropriate in light of: (1)

Dr. Skoczek’s opinion that Swain would be absent from work more

than three times a month because of his impairments or treatment

for them; and (2) the VE’s testimony, in response to a question

from the ALJ, that three or more absences per month would preclude

all employment. See Hunt v. Colvin, No. 16-cv-159-LM,

, at *8 (D.N.H. Dec. 5, 2016) (remanding where, among other

things, VE testified that four absences per month would preclude

10The regulation governing the PRT was amended, effective January 18, 2017, to track the simultaneous changes to the mental- impairment listings. See note

15 all work but ALJ failed to address treating-source opinion that

claimant would be absent from work four or more days per month).

Of course, the ALJ did evaluate the PRT aspect of Dr.

Skoczek’s questionnaire, but even if I were to construe the ALJ’s

reasons for discounting Dr. Skoczek’s PRT opinions as reasons for

discounting her RFC opinions, the ALJ’s decision falls short of

the mark. As noted, an ALJ is obligated to give good reasons for

the weight he gives a medical opinion from a treating source. See

(c)(2) & 416.927(c)(2).

To meet the “good reasons” requirement, the ALJ’s reasons must be both specific, see Kenerson v. Astrue, No. 10–cv–161–SM,

, at *4 (D.N.H. May 20, 2011) (citation omitted), and supportable, see Soto– Cedeño v. Astrue,

(1st Cir. 2010). In sum, the ALJ’s reasons must “offer a rationale that could be accepted by a reasonable mind.” Widlund v. Astrue, No. 11–cv–371–JL,

, at *9 (D.N.H. Apr. 16, 2012) (citing Lema v. Astrue, C.A. No. 09– 11858,

, at *4 (D. Mass. Mar. 21, 2011)), report and recommendation adopted by

(D.N.H. May 14, 2012).

Jenness v. Colvin, No. 15–cv–005–LM,

, at *6

(D.N.H. Aug. 27, 2015).

The ALJ offered two reasons for discounting Dr. Skoczek’s

opinions: (1) their lack of support from the relatively moderate

findings from Swain’s mental-status examinations; and (2) their

inconsistency with the fact that Swain “simultaneously maintained

multiple part-time jobs,” Tr. 32. 11 Supportability and consistency

11The ALJ also mentioned his finding that Swain had experienced no episodes of decompensation, but that finding is so clearly and directly addressed to one of the four Paragraph B

16 with the record are both factors an ALJ should consider when

evaluating a medical opinion, see

(c)(3)-(4)

& 416.927(c)(3)-(4), but neither factor provides a good reason for

discounting Dr. Skoczek’s opinion on Swain’s probable absences

from work.

Turning first to supportability, the ALJ says that Dr.

Skoczek’s opinion is not supported by Swain’s mental-status

examinations, which “showed no more than moderate findings,” Tr.

32. In support of that explanation, the ALJ generally cites 42

pages of Dr. Skoczek’s treatment notes. Leaving aside the lack of

specificity in the ALJ’s explanation, see McCormick,

, at *7 (remanding where, among other things, ALJ stated

that treating-source opinion “as a whole” was unsupported by and

inconsistent with the record, but did not identify specific

opinions or specific contradictory evidence), there are two

significant problems with the ALJ’s supportability analysis.

The first is the ALJ’s citation of Exhibit 5F as record

support for his statement that “the claimant’s mental status

examinations showed no more than moderate findings,” Tr. 32.

Exhibit 5F consists of notes documenting more than 60 office

visits with Dr. Skoczek between January 5, 2015, and November 16,

criteria of Listings 12.04 and 12.06 that it cannot reasonably be construed as a reason for discounting Dr. Skoczek’s RFC opinions.

17 2015. However, it does not appear that a single one of Dr.

Skoczek’s notes actually documents a mental-status examination. 12

Moreover, even if Dr. Skoczek had recorded moderate findings

on mental-status examinations, or if I were to construe the ALJ’s

reference to mental-status examinations not as a supportability

argument, see

(c)(3) & 416.927(c)(3), but as

an argument that Dr. Skoczek’s opinion was inconsistent with the

results of mental-status examinations administered by other

providers, see

(c)(4) & 416.927(c)(4), the

ALJ’s argument is not persuasive. That is because he did not

explain how moderate findings on mental- status examinations are

inconsistent with an opinion that Swain would be absent from work

more than three times a month due to his impairments or treatment

for them.

Thus, this case is similar to Hatch v. Colvin, which resulted

in a remand where, among other things, the ALJ rejected a

treating-source opinion as “inconsistent with treatment records

showing ‘mostly normal exams, with nonfocal motor examination, no

spinal tenderness, normal mood and appropriate affect’” but “did

not indicate how nonfocal motor examinations, a lack of spinal

12The fact that Swain saw Dr. Skoczek 60 times in less than 11 months would seem to support her opinion that he would be absent from work more than three times a month because of his impairments or treatment for them. See McCormick,

, at *8 (suggesting that large number of medical appointments would support treating source’s opinion that claimant would have more than four absences per month due to impairments or treatment for them).

18 tenderness, normal mood, and appropriate affect were inconsistent

with an opinion that [the claimant] would be absent from work more

than four days per month . . .,” No. 15-cv-251-JL,

, at *7 (D.N.H. Aug. 5, 2016) (emphasis added, citation to

the record omitted); see also Willey v. Colvin, No. 15-cv-368-JL,

, at *6 (D.N.H. Apr. 7, 2016) (remanding where,

among other things, “ALJ stated that [the claimant’s] capacities

for light lifting and light-exertion sitting and standing were

‘supported by the objective findings during the period, including

normal gait, good strength, and good range of motion’” but “did

not explain how normal gait, good strength, and good range of

motion translate into a capacity for ‘light lifting and light

exertion sitting and standing’”) (citations to the record

omitted), R. & R. adopted by

(Apr. 29, 2016).

The ALJ’s second reason for discounting Dr. Skoczek’s

opinion, i.e., Swain’s ability to hold down multiple part-time

jobs, is also not a good reason. While Swain was working three

part-time jobs at the time of his hearing, it is undisputed that,

several days a week, he was between 15 and 30 minutes late for his

10-hour-a-week recess monitoring job. Swain’s ability to hold

down a job where he was allowed to be at least 15 minutes late for

a two-hour workday, at least twice a week, is not evidence a

rational mind could accept as a sufficient basis for rejecting Dr.

Skoczek’s opinion that Swain would be absent from work more than

three times a month.

19 In sum, presuming that the ALJ even evaluated Dr. Skoczek’s

RFC opinions in the first place, his decision presents no good

reason for discounting Dr. Skoczek’s opinion that Swain would be

absent from work more than three times a month, a limitation that

would preclude any employment. Because the ALJ either failed to

evaluate Dr. Skoczek’s opinion on probable absence from work, or

failed to give a good reason for discounting it, this matter must

be remanded. Moreover, because the ALJ’s evaluation of Dr.

Skoczek’s RFC opinions requires a remand, there is no need to

consider his evaluation of Dr. Naimark’s opinions on Swain’s RFC.

IV. Conclusion

For the reasons described above, the Acting Commissioner’s

motion for an order affirming her decision, document no. 7, is

denied, and Swain’s motion to reverse that decision, document no.

6, is granted to the extent that this matter is remanded to the

Acting Commissioner, pursuant to sentence four of

(g), for further proceedings consistent with this order. The

clerk of the court shall enter judgment in favor of Swain and

close the case.

SO ORDERED. /s/ Paul Barbadoro Paul Barbadoro United States District Judge

October 29, 2018

cc: Christopher G. Roundy, Esq. Luis A. Pere, Esq.

20