UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jo-Ann Scott Cooley Case No. 19-cv-679-PB v. Opinion No.

Andrew Saul,1 Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Jo-Ann Scott Cooley challenges the denial of her claim for

Disability Insurance Benefits (“DIB”) pursuant to

(g) (“Section 405(g)”). She contends that the

Administrative Law Judge (“ALJ”) erred by failing to properly

conduct the full residual functional capacity (“RFC”) analysis

at step four of the five-step evaluation required by

(a)(4)(iv). The Commissioner, in turn, moves for an

order affirming the ALJ’s decision (Doc. No. 13). For the

following reasons, I grant Cooley’s motion (Doc. No. 11) and

remand this matter to the Commissioner for further proceedings

consistent with this order.

1 On June 17, 2019, Andrew Saul was sworn in as the Commissioner of the Social Security Administration. Pursuant to Federal Rule of Civil Procedure 25(d), he automatically replaces the nominal defendant, the Acting Commissioner of the Social Security Administration.

1 I. BACKGROUND2

A. Procedural Facts

Cooley is a fifty-five-year-old woman who previously worked

as a U.S. Navy seaman, Tr. at 207, and in private company doing

“material handling, shipping/receiving, and production work,”

Mem. of Law in Supp. of Mot. to Reverse, Doc. No. 11-1 at 2

(citing Tr. at 41–48). She filed her claim for DIB on November

20, 2017, alleging a disability onset date of June 15, 2016, Tr.

at 16, based on injuries she sustained that day in a motor

vehicle accident, Tr. at 18, 302. After an initial denial on

April 26, 2018, she requested a hearing in front of an ALJ. Tr.

at 16. This hearing took place in front of ALJ Edward Malvey on

November 7, 2018. Tr. at 16, 27. The ALJ issued an unfavorable

decision on December 3, 2018, Tr. at 26—27, which Cooley

appealed to the Appeals Council, Tr. at 1–6. The Appeals Council

denied her request. Tr. at 1. The ALJ’s decision, therefore, is

the Commissioner’s final decision. Tr. at 1.

2 The parties have submitted statements of material facts as required by Local Rule 9.1(b), and I draw on the entire administrative record (“Tr.”) to construct a brief factual history of Cooley’s case.

2 B. Medical Evidence3

Cooley’s disability claim is based principally on injuries

she sustained in a motor vehicle accident on June 15, 2016, her

alleged disability onset date. See Tr. at 18, 302. Upon

examining Cooley the day of the accident, Dr. Jack Huse found

that she was suffering from a scalp hematoma and laceration,

multiple contusions and abrasions, and a fractured right ankle.

Tr. at 302–03.

Prior to the accident, Cooley had been diagnosed with

“insulin-dependent diabetes,” “mild hypertension[,] and migraine

headaches,” as well as “allergic asthma.” Tr. at 302. She also

had had several surgeries. Tr. at 302. I provide a brief

accounting of her accident-related injuries and her conditions

that predate the accident.

1. Accident-Related Injuries

Cooley suffered a fractured ankle in the June 2016 accident

that required extended treatment, including surgery. See Tr. at

22; accord Tr. at 412, 487. After surgery, Cooley experienced

loss of strength, altered gait, low tolerance for activities of

daily living, limited range of motion, no tolerance for working,

and no ability to drive. Tr. at 414. In response, Cooley started

3 I decline to recite a full history of Cooley’s medical treatment, opting instead to focus on the treatment records necessary to provide context for my analysis.

3 a course of physical therapy with Karen Poplaski, MPT. Tr. at

413. By January 2017, the range of motion and strength in her

ankle had regained normal function. Tr. at 22. Given these

improvements, Tr. at 126, Cooley did not receive further

treatment after April 13, 2017, Tr. at 22.

In the months following the accident, Cooley also developed

back pain. See Tr. at 22, 550. She engaged in physical therapy

for her back and made progress strengthening it, though her pain

persisted. See Tr. at 22. To alleviate her pain, Cooley received

multiple epidural steroid injections. Tr. at 172, 703.

Cooley also sought medical care in the fall of 2016 for

concussive symptoms resulting from the accident. Tr. at 18;

see also Tr. at 19, 55–56, 163, 493–94, 496. In November 2016,

she showed signs of post-concussive vestibular dysfunction. Tr.

at 18; accord Tr. at 496. She did not, however, “continue with

any treatment” for her post-concussive symptoms. Tr. at 19.

Cooley’s migraines have persisted, though, and she testified

before the ALJ that she has headaches every day and migraines at

least twice a month. Tr. at 55–56.

2. Medical Conditions at the Time of the Accident

Prior to the accident, Cooley was suffering from diabetes,

multiple mental impairments, and headaches. See Tr. at 39, 260.

She was diagnosed with type 2 diabetes mellitus in 2015. Tr. at

260. In February 2016, she began exhibiting neuropathy as her

4 diabetes worsened. Tr. at 162. By August 2018, she had been

diagnosed with “very mild sensory peripheral neuropathy.” Tr. at

699.

Cooley also has a history of depression, anxiety, and post-

traumatic stress disorder (“PTSD”). In 1986, while she was

serving in the U.S. Navy, she witnessed a fellow servicemember

shoot himself. Tr. at 51. She has identified this experience as

the onset of her depression. Tr. at 51. At the time of the

accident, she was “receiving treatment for depression . . .

[and] anxiety.” Tr. at 39. The accident and her subsequent

injuries exacerbated these conditions. Tr. at 39; accord Tr. at

51–52, 579. Cooley has taken Prozac daily for her depression

since before the accident. See Tr. at 312–13.

Cooley’s depression and PTSD were noted by multiple

examiners. State-appointed examiner Dr. Phillip Robbins

conducted a “comprehensive psych profile.” Tr. at 742. He noted

diagnoses for PTSD and “Major Depression, moderate.” Tr. at 745.

Dr. Robbins noted that Cooley’s prognosis is good with

appropriate treatment, but without counseling treatment for her

PTSD, “the prognosis would be guarded.” Tr. at 745. Donna Moore,

LICSW, another state-appointed examiner, found that Cooley also

had two non-severe medically determinable impairments: “trauma–

and stressor– related disorders” and “depressive, bipolar and

related disorders”. Tr. at 126. Moore found these non-severe

5 medical impairments to have a mild impact on Cooley’s ability to

“understand, remember, or apply information”; “interact with

others”; “concentrate, persist or maintain pace”; and “adapt or

manage” herself. Tr. at 127.

Additionally, Cooley has a history of mild hypertension and

migraine headaches, Tr. at 39; accord Tr. at 302, and she has

been previously diagnosed as “overweight or obese,” Tr. at 271.

C. The ALJ’s Decision

The ALJ assessed Cooley’s claims under the five-step

analysis required by

(a)(4). At step one, he

found that Cooley had not engaged in substantial gainful

activity since June 15, 2016, her alleged disability onset date.

Tr. at 18.

At step two, he found that Cooley had the following severe

impairments: “degenerative disc disease of the lumbar spine,

ankle fracture with subsequent open reduction internal fixation,

diabetes mellitus with peripheral neuropathy, obesity, and

migraine headaches.” Tr. at 18. He determined, however, that

Cooley “did not carry her burden in establishing [post-

concussive syndrome] as a medically determinable impairment.”

Tr. at 18. The ALJ also found that Cooley had “medically

determinable impairments of depression and [PTSD]” but that,

6 “considered singly and in combination,” these mental impairments

were non-severe. Tr. at 19.

At step three, the ALJ considered whether Cooley’s

impairments were severe enough to meet or medically equal the

criteria of any impairment listed in

, Subpart P,

Appendix 1. Tr. at 20. Specifically, the ALJ considered listings

1.03 and 1.04 and found that “the specified criteria were not

met.” Tr. at 20.

Next, at step four, the ALJ assessed Cooley’s RFC. He

determined that Cooley had the RFC

to perform light work as defined in 20 CFR [§] 404.1567(b)[,] except she can never climb ladders, ropes, or scaffolds. She can frequently climb ramps and stairs. She can occasionally balance. She can frequently stoop, kneel, crouch, and crawl. She is limited to occasional exposure to vibration and hazards, defined as heights and machinery.

Tr. at 20–21. Based upon this RFC, the ALJ concluded at step

four that Cooley could not perform her past work “as a

laminating machine operator, a materials handler, and a

shipping/receiving clerk.” Tr. at 25.

Moving on to step five, the ALJ found Cooley “not disabled”

because she could “mak[e] a successful adjustment to other work

that exists in significant numbers in the national economy.” Tr.

at 26.

7 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 Commissioner’s final

decision. See § 405(g). That review “is limited to determining

whether the ALJ 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 they are supported

by substantial evidence.”

(citing Nguyen v. Chater,

(1st Cir. 1999) (per curiam)). “[W]hatever the meaning of

‘substantial’ in other contexts, the threshold for such

evidentiary sufficiency is not high.” Biestek v. Berryhill, ___

U.S. ___,

,

(2019). It

means only “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”

(quoting

Consol. Edison Co. v. NLRB,

,

,

(1938)).

If the Commissioner’s factual findings are supported by

substantial evidence, they are conclusive, even where the record

“arguably could support a different conclusion.” Irlanda Ortiz

v. Sec’y of Health & Human Servs.,

(1st Cir.

1991) (per curiam). The Commissioner’s findings “are not

conclusive when derived by ignoring evidence, misapplying the

8 law, or judging matters entrusted to experts.” Nguyen,

. “‘Issues of credibility and the drawing of permissible

inference from evidentiary facts are the prime responsibility of

the Commissioner,’ and ‘the resolution of conflicts in the

evidence and the determination of the ultimate question of

disability is for [him], not for the doctors or for the

courts.’” Purdy v. Berryhill,

(1st Cir. 2018)

(brackets omitted) (quoting Rodriguez v. Sec’y of Health & Human

Servs.,

(1st Cir. 1981)). I apply these

standards to the arguments Cooley raises in her appeal.

III. ANALYSIS

Cooley argues that a remand is required because the ALJ

failed to properly consider Cooley’s non-severe impairments, in

combination with her severe impairments, when determining her

RFC at step four. Doc. No. 11-1 at 13–23.4

An ALJ must “consider all of [the claimant’s] medically

determinable impairments of which [the ALJ is] aware, including

[the claimant’s] medically determinable impairments that are not

‘severe,’ . . . when [the ALJ] assess[es] [the claimant’s]

4 Cooley also argues that the ALJ improperly failed to explain how he considered the medical evidence supporting her claim as is required by Section 404.1520c. Doc. No. 11-1 at 5-13. Because the ALJ committed reversible error at step four by failing to consider Cooley’s non-severe mental impairments, I need not address Cooley’s alternative argument.

9 [RFC].” § 404.1545(a)(2). It is “simply a matter of common sense

that various physical, mental, and psychological defects, each

non-severe in and of itself, might in combination, in some

cases, make it impossible for a claimant to work.” McDonald v.

Sec’y of Health & Human Servs.,

(1st Cir.

1986).

Thus, in assessing a claimant’s ability to work, “[i]t is

reversible error for an ALJ not to consider a claimant’s non-

severe impairments in conjunction with her severe impairments

. . . when formulating her RFC.” Smith v. Saul,

,

, at *3 (D.N.H. Nov. 13, 2019); see also Morse v.

Colvin,

,

, at *9 (D.N.H. Mar. 17,

2015) (requiring the ALJ to address non-severe impairments when

assessing RFC); Forni v. Barnhart,

,

, at *8 (D.N.H. Oct. 17, 2006) (reversing the

Commissioner’s denial of benefits and remanding because, after

the ALJ identified the claimant’s depression as a non-severe

mental impairment at step two, the ALJ “completely (and

improperly) dropped [claimant’s] depression from his analysis,

thereafter analyzing only the effects of asthma and carpal

tunnel on [claimant’s] RFC”).

At step two, the ALJ identified Cooley’s depression and

PTSD as medically determinable, non-severe mental impairments.

Tr. at 19. He correctly noted then that

10 [t]he limitations identified in the “paragraph B” criteria are not a residual functional capacity assessment . . . . The mental residual functional capacity assessment used at step 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraph B of adult mental disorders listings in 12.00 of the Listing of Impairments (SSR 96–8p).

Tr. at 20. The ALJ did not, however, conduct the forecasted

analysis at step four.5 He makes no mention of Cooley’s

depression or PTSD at this step except for overly broad,

boilerplate language at the start of his RFC analysis. See Tr.

at 21 (“I have considered all symptoms and the extent to which

these symptoms can reasonably be accepted as consistent with the

objective medical evidence and other evidence . . . .”). An ALJ

does not “meet his . . . responsibility under 20 C.F.R.

[Sections] 404.1523 [and] 416.923 by doing nothing more than

reciting boilerplate assertions that he . . . considered a

claimant’s impairments in combination without describing any

actual analysis . . . . [A]dequate explanation consists of

analysis, not just conclusory findings.” Morse,

,

at *8–9.

5 Additionally, though Cooley did not contest the omission of obesity at step four, I note here, for the sake of efficiency, that it was also improperly omitted in the RFC analysis. The ALJ found obesity to be a severe medically determinable impairment at step two but did not mention this impairment in the step four RFC analysis. Tr. at 18.

11 The Commissioner’s admissions reveal the ALJ’s error of

law. In his answer to Cooley’s appeal, the Commissioner admits

that “the ALJ found [p]laintiff’s mental impairments were non-

severe at step two of the sequential” analysis, and that “the

ALJ did not include mental limitations in the functional

capacity finding.” Answer, Doc. No. 6 at 3 ¶¶ 17, 18.

Nevertheless, the Commissioner argues that the ALJ’s decision

should not be reversed because “[t]he findings of fact of the

Commissioner . . . are supported by substantial evidence and are

conclusive.” Doc. No. 6 at 5. Although it is true that “[t]he

findings of the Commissioner . . . as to any fact, if supported

by substantial evidence, shall be conclusive,” § 405(g), the

Commissioner’s findings “are not conclusive when derived by

ignoring evidence, misapplying the law, or judging matters

entrusted to experts.” Nguyen,

.

The ALJ committed reversible error by failing to discuss

Cooley’s depression and PTSD in combination with her other

medically determinable impairments at step four. See

§ 404.1545(a)(2). Accordingly, I reverse his decision and remand

the case for consideration of whether — in light of Cooley’s

combined medically determinable, severe and non-severe mental

and physical impairments — her RFC would allow her to perform

jobs that exist in significant numbers in the economy.

12 IV. CONCLUSION

For the foregoing reasons, I grant Cooley’s motion to

reverse (Doc. No. 11) and deny the Commissioner’s motion to

affirm (Doc. No. 13). Pursuant to sentence four of

(g), I remand the case to the Social Security

Administration for further proceedings consistent with this

Memorandum and Order.

SO ORDERED.

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

September 9, 2020

cc: Janine Gawryl, Esq. Candace H. Lawrence, Esq. Sarah E. Choi, Esq.

13