UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Maria Korfiatis

v. Case No. 18-cv-210-PB Opinion No.

Nancy A. Berryhill, Acting Commissioner Social Security Administration

MEMORANDUM AND ORDER

Maria Korfiatis challenges the denial of her applications

for supplemental security income and disability insurance

benefits pursuant to

(g). She contends that the

Administrative Law Judge (“ALJ”) who considered her applications

improperly evaluated her residual functional capacity and erred

in finding that she could perform her past relevant work.

The Acting Commissioner, in turn, moves for an order affirming

the ALJ’s decision. I grant Korfiatis’s motion and remand the

case to the agency because there is no indication in the record

that the ALJ considered a medical source’s opinion.

I. BACKGROUND

A. Procedural Facts

Korfiatis is a 35-year-old woman with two years of college

education. She has previously worked as a station cleaner, a

medical receptionist, and a security guard. Korfiatis has

allegedly been disabled since July 11, 2013, due to a combination of rheumatoid arthritis, right wrist impairment,

fibromyalgia, asthma, spinal impairment, obesity, and

depression.

Korfiatis’s applications were initially denied in October

2014. On September 20, 2016, she testified via video at a

hearing before ALJ Matthew Levin, who ultimately denied her

applications. See Administrative Transcript (“Tr.”) 36. The

Social Security Administration (“SSA”) Appeals Council denied

her request for review in November 2017, rendering the ALJ’s

decision the final decision of the Acting Commissioner. See Tr.

7-13. Korfiatis now appeals.

B. Medical Evidence

Korfiatis is 5’5” tall and weighed 360 pounds at the time

of the hearing. She fractured her right wrist in a work

accident on July 11, 2013. Following the accident, she had two

hand surgeries. Afterward, she continued complaining to her

treating providers of pain and numbness in the wrist.

Dr. Matthew Clarke, one of her providers, indicated in his

treatment notes in February, April and June 2014 that Korfiatis

was cleared to return to work, but was limited to lifting,

pushing, and pulling less than fifteen pounds without frequent,

forceful, or repetitive motions with the right wrist. Tr. 543,

552, 555. She did not return to work at that time.

2 Starting in November 2014, Dr. Clarke changed his

prognosis, indicating that Korfiatis could not return to work

because of her right-hand pain. See Tr. 808. He repeated this

observation in treatment notes from follow-up appointments

throughout the following year. See Tr. 813, 819, 822.

In addition to her right-wrist injury, Korfiatis suffered

from fibromyalgia and rheumatoid arthritis. She testified at

the hearing that her fibromyalgia has progressively worsened

since her initial diagnosis in 2007, that it affected her knees,

feet, back, and shoulders, and that it caused her constant pain.

Tr. 81. Rheumatoid arthritis exacerbated her pain and caused

swelling in her hands and legs. Tr. 82. She testified that she

could sit for about one hour on good days but only for

approximately 15 minutes on bad days, which occurred four to

five times per week. Tr. 82-83.

Family practitioner Dr. Concetta Oteri treated Korfiatis

for rheumatoid arthritis. Dr. Oteri opined in April 2016 that

due to this condition and the associated inflammation in the

joints, Korfiatis could never lift more than 10 pounds, could

occasionally lift less than 10 pounds, could stand, walk or sit

for 30 minutes without interruption, could stand or walk for a

total of 2 hours, and could sit for a total of 4 hours in an 8-

hour workday. He further opined that she could never climb,

3 stoop, crouch, kneel, crawl, push or pull, and could

occasionally bend, balance, reach, feel and handle. Tr. 883-84.

Rheumatologist Dr. Fredrick Ast, who treated Korfiatis over

a four-year period, opined that she could never carry any

weight, could never push or pull with her right hand, could

occasionally reach in all directions, handle, feel and finger

with the right hand, and could occasionally reach overhead,

handle and finger with the left hand. Dr. Ast further opined

that Korfiatis could never balance, stoop, kneel, crouch or

crawl, and that she could sit for 3 hours, stand for 30 minutes,

and walk for 20 minutes in an 8-hour work day. Tr. 665-74. 1

On September 25, 2014, Korfiatis underwent a physical

consultative examination by Dr. Sharon Revan. Dr. Revan opined

that she had (1) no limitation with upper extremities for fine

and gross motor activity; (2) moderate limitations walking,

sitting, standing, laying down, and climbing stairs due to joint

pain; (3) no limitations to personal grooming; and (4) mild

limitations to activities of daily living secondary to her joint

pain. Tr. 535-39.

In terms of mental impairments, Korfiatis suffered from

depression and post-traumatic stress disorder (“PTSD”). On

1 The Commissioner disputes that this opinion is attributable to Dr. Ast. Because I reverse and remand on other grounds, I do not resolve the issue. 4 September 25, 2014, she presented to Dr. David Mahony for a

psychiatric evaluation. She reported depressive symptomatology,

including a depressed mood, hopelessness, loss of interests,

loss of energy, worthlessness, and social withdrawal. Dr.

Mahony noted depressed affect and dysthymic mood. A mental

status examination revealed mildly impaired memory skills and

below average cognitive functioning. Dr. Mahony opined that

Korfiatis was able to follow and understand simple directions

and instructions, perform simple tasks independently, maintain

attention and concentration, maintain a regular schedule, learn

new tasks, perform complex tasks independently, make appropriate

decisions, relate adequately with others, and appropriately deal

with stress. Tr. 530-33.

In October 2014, state agency psychologist Dr. R. Nobel

reviewed Korfiatis’s records. Dr. Nobel opined that her mental

impairments caused mild difficulties in maintaining

concentration, persistence, and pace. Tr. 103.

In May 2016, Maryanne Strong, a licensed clinical social

worker, completed a “Medical Assessment of Ability to Do Work

Related Activities (Mental)” on Korfiatis’s behalf. Counselor

Strong opined that her ability to maintain attention and

concentration was poor and that her PTSD, anxiety and depression

curtailed her ability to remain focused for any length of time.

Tr. 885-886. According to Counselor Strong, Korfiatis’s

5 “physical pain and limitations exacerbate her mental health to

the degree that she cannot function as needed on a consistent

basis, as required by work.” Tr. 885. As a result, she

believed that Korfiatis was unable to work. Tr. 886.

C. The ALJ’s Decision

The ALJ assessed Korfiatis’s claims under the five-step,

sequential analysis required by

. At step

one, he found that Korfiatis had not engaged in substantial

gainful activity since July 11, 2013, her alleged disability

onset date. At step two, the ALJ found that Korfiatis’s

fibromyalgia, rheumatoid arthritis of the right wrist, asthma,

and obesity qualified as severe impairments. The ALJ also found

that her depression, back pain, headaches, polycystic ovarian

syndrome, and hypothyroidism were not severe impairments. At

step three, the ALJ determined that none of Korfiatis’s

impairments, considered individually or in combination,

qualified for any impairment listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1. See

(d).

The ALJ then found that Korfiatis had the residual

functional capacity (“RFC”) to perform sedentary work, with the

following exceptions:

she can occasionally perform all postural maneuvers, occasionally climb stairs, should avoid all ladders, rope and scaffolds, avoid all hazards, should avoid forceful or repetitive motion with the right wrist, can occasionally perform overhead reaching

6 bilaterally, can sustain occasional exposure to vibrations and should avoid concentrated exposure to dust, gas, odors and poor ventilation.

Tr. 42.

In making the RFC determination, the ALJ gave “great

weight” to the opinion of consultative examiner Dr. Revan that

Korfiatis had only mild or moderate physical limitations. The

ALJ reasoned that Dr. Revan was an examining medical source and

that her opinion was “consistent with the findings made by other

doctors.” Tr. 44.

The ALJ also gave “great weight” to the April 2014 opinion

of treating physician Dr. Clarke that Korfiatis could return to

work with “no right lifting, pushing and pulling more than

fifteen pounds and no frequent, forceful or repetitive motions

of the right wrist.” Tr. 45. Dr. Clarke’s opinion was based on

a two-year treatment history and was “supported by the copious

pages of treatment notes in the record,” the ALJ observed. Tr.

45. The ALJ did not, however, address Dr. Clarke’s subsequent

opinions recorded in his treatment notes in late 2014 and

throughout 2015 that Korfiatis could not return to work due to

right-hand pain.

The ALJ gave “less than great weight” to the opinion of

treating physician Dr. Oteri that Korfiatis could only stand and

walk for 2 hours and sit for 4 hours total in an 8-hour workday.

Dr. Oteri’s opinion was “not wholly supported by the medical

7 evidence,” according to the ALJ. Tr. 45-46. The ALJ stated

that he considered Dr. Oteri’s opinion in limiting Korfiatis to

sedentary work, but he discarded the other limitations because

Dr. Oteri relied in part on Korfiatis’s subjective reports when

“contemporaneous treatment notes showed normal examinations.”

Tr. 46.

The ALJ next addressed the opinion that Korfiatis

represented as belonging to Dr. Ast. Noting that the opinion

was undated and unsigned, the ALJ did not give it “any weight.”

Tr. 46. Assuming it was Dr. Ast’s opinion, the ALJ noted that

there was “no medical evidence to support such a restrictive

functional capacity.” Tr. 46. Dr. Ast’s treatment notes “show

no more than mild objective findings” and merely report

Korfiatis’s subjective complaints, observed the ALJ. Tr. 46.

In terms of Korfiatis’s mental impairments, the ALJ gave

“great weight” to the state agency psychological consultants’

opinions “because they are consistent with the record as a

whole.” Tr. 46. But the ALJ gave no indication that he had

considered Counselor Strong’s more recent opinion on the matter.

Relying on the testimony of a vocational expert, the ALJ

then found at step four that Korfiatis could performing her past

relevant work as a medical receptionist. Tr. 46. Accordingly,

the ALJ concluded that Korfiatis had not been disabled from the

alleged onset date through the date of his decision. Tr. 47.

8 II. STANDARD OF REVIEW

I am authorized to review the pleadings submitted by the

parties and the administrative record and enter a judgment

affirming, modifying, or reversing the “final decision” of the

Commissioner. See

(g). That review is limited,

however, “to determining whether the [Commissioner] used the

proper legal standards and found facts [based] upon the proper

quantum of evidence.” Ward v. Comm’r of Soc. Sec.,

(1st Cir. 2000). I defer to the Commissioner’s

findings of fact, so long as those findings are supported by

substantial evidence.

Substantial evidence exists “if a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support [her] conclusion.”

Irlanda Ortiz v. Sec’y of Health & Human Servs.,

(1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of

Health & Human Servs.,

(1st Cir. 1981)).

If the Commissioner’s factual findings are supported by

substantial evidence, they are conclusive, even where the record

“arguably could support a different conclusion.” Id. at 770.

The Commissioner’s findings are not conclusive, however, “when

derived by ignoring evidence, misapplying the law, or judging

matters entrusted to experts.” Nguyen v. Chater,

(1st Cir. 1999) (per curiam). “Issues of credibility and the

drawing of permissible inference from evidentiary facts are the

9 prime responsibility of the Commissioner, and the resolution of

conflicts in the evidence and the determination of the ultimate

question of disability is for her, not for the doctors or for

the courts.” Purdy v. Berryhill,

(1st Cir. 2018)

(internal quotation marks and brackets omitted).

III. ANALYSIS

Korfiatis makes four arguments in this appeal. First, she

argues that remand is warranted because the ALJ failed to

consider the opinion evidence from Counselor Strong. Second,

she claims that the ALJ improperly failed to give controlling

weight to the opinions of her treating physicians, Dr. Oteri and

Dr. Ast. Third, she maintains that the ALJ failed to address

the limiting effects of her headaches. Finally, she asserts

that the ALJ erred in finding that she could perform her past

relevant work as a medical receptionist. Because I conclude

that the ALJ committed legal error by failing to indicate that

he had considered Counselor Strong’s opinion, I need not address

Korfiatis’s remaining arguments.

An ALJ must consider both “medical opinions,” defined as

opinions provided by “acceptable medical sources,” and

“[o]pinions from medical sources who are not acceptable medical

sources,” along with other relevant evidence. See

, 416.927. Licensed clinical social workers, such as

Counselor Strong, fall in the latter category. See Social

10 Security Ruling (“SSR”) 06–03p (Aug. 9, 2006),

,

at *2. The SSA has recognized the reality that non-acceptable

medical sources, such as nurse practitioners, physician’s

assistants, and licensed clinical social workers, are

increasingly performing functions that were previously in the

exclusive domain of physicians, psychologists, and other

acceptable medical sources. See id. at *3. As a result, the

opinions of non-acceptable medical sources “are important and

should be evaluated on key issues such as impairment severity

and functional effects.” Id. Indeed, the ALJ may assign

greater weight to an opinion from a non-acceptable medical

source than from an acceptable medical source. See id. at *5.

The ALJ is instructed to consider the same factors when

evaluating opinions from both acceptable and non-acceptable

medical sources. See

(c),(f),

416.927(c),(f). Those factors include the nature of the

relationship between the medical source and the claimant, the

supportability of the opinion, the consistency of the opinion

with the record as a whole, and whether the source of the

opinion is a specialist. See

The ALJ generally should

explain the weight given to non-acceptable medical source

opinions or otherwise ensure that his discussion of evidence

makes his reasoning apparent. See

(f)(2),

416.927(f)(2); SSR 06–03p,

, at *6; Nichols v.

11 U.S. Soc. Sec. Admin., Acting Comm’r,

,

, at *9 (D.N.H. Mar. 13, 2018); Dumensil v. Astrue,

,

, at *5 (D.N.H. Aug. 4, 2010).

In the present case, the ALJ did not even mention Counselor

Strong’s opinion, let alone discuss at least some of the reasons

for the weight given to her opinion. It is thus “impossible to

determine whether this evidence was considered and implicitly

discredited or instead was simply overlooked.” Lord v. Apfel,

(D.N.H. 2000). The ALJ’s error warrants

remand. See Seavey v. Barnhart,

(1st Cir. 2001)

(“When an agency has not considered all relevant factors in

taking action, or has provided insufficient explanation for its

action, the reviewing court ordinarily should remand the case to

the agency.”).

I am unpersuaded by the Commissioner’s argument that the

ALJ’s error was harmless. The Commissioner claims that

Counselor Strong’s opinion is “of little probative value” and is

contradicted by the opinions of two acceptable medical sources,

Dr. Mahony and Dr. Nobel. See Doc. No. 16-1 at 5-6. 2 That may

2 The Commissioner further asserts that there is no evidence that Counselor Strong was a treating provider, which Korfiatis contests. I need not resolve this issue because the regulations obligating an ALJ to consider opinions from non-acceptable medical sources do not distinguish between treating and non- treating providers. See

(f), 416.927(f). In other words, even if Counselor Strong was not a treating source, the ALJ had a duty to consider her opinion. 12 be so, but it does not mean that remand would be an empty

exercise. Counselor Strong’s opinion was the most recent mental

health opinion in the record and the only opinion supporting

Korfiatis’s claim that her mental impairments significantly

impacted her ability to work. Unlike in the single case cited

by the Commissioner, consideration of this opinion may lead the

ALJ to a different conclusion. Cf. Ward,

(remand not necessary because “application of the correct legal

standard could lead to only one conclusion”) (internal quotation

marks omitted). Therefore, the ALJ’s error was not harmless.

IV. CONCLUSION

Pursuant to sentence four of

(g), I deny the

Commissioner’s motion to affirm (Doc. No. 16) and grant

Korfiatis’s motion for an order reversing the Commissioner’s

decision (Doc. No. 14). The case is remanded for further

proceedings in accordance with this memorandum and order. The

clerk is directed to enter judgment accordingly and close the

case.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

March 8, 2019

cc: Daniel A. Osborn, Esq. Roger B. Phillips, Esq. Luis A. Pere, Esq.

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