Higgins v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Brooke Higgins
v. Civil No. 18-cv-1136-LM
Opinion No. 2020 DNH 004
Andrew Saul,1 Commissioner,
Social Security Administration
O R D E R
Brooke Higgins moves to reverse the decision of the
Commissioner of the Social Security Administration denying her
application for supplemental social security income. She
contends that the Administrative Law Judge (“ALJ”) erred by
improperly considering and weighing the medical opinions in the
record. The Commissioner moves to affirm the ALJ’s decision.
For the reasons discussed below, the court denies the
Commissioner’s motion to affirm and grants Higgins’s motion to
reverse.
STANDARD OF REVIEW
In reviewing the final decision of the Commissioner in a
social security case, the court “is limited to determining
1 On June 17, 2019, Andrew Saul was sworn in as Commissioner
of Social Security. Pursuant to Fed. R. Civ. P. 25(d), he
automatically replaces the nominal defendant, Nancy A.
Berryhill, who had been Acting Commissioner of Social Security.
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whether the [Administrative Law Judge] deployed the proper legal
standards and found facts upon the proper quantum of evidence.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord Seavey
v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). The court defers to
the Administrative Law Judge’s factual findings as long as they
are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016).
“Substantial-evidence review is more deferential than it might
sound to the lay ear: though certainly ‘more than a scintilla’
of evidence is required to meet the benchmark, a preponderance
of evidence is not.” Purdy v. Berryhill, 887 F.3d 7, 13 (1st
Cir. 2018) (internal citation omitted). The court “must uphold
the Commissioner’s findings if a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate
to support her conclusion.” Id. (brackets and ellipses
omitted).
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis. 20 C.F.R. §
416.920(a)(4). The claimant “has the burden of production and
proof at the first four steps of the process.” Freeman v.
Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). The first three
steps are (1) determining whether the claimant is engaged in
substantial gainful activity; (2) determining whether she has a
severe impairment; and (3) determining whether the impairment
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meets or equals a listed impairment. 20 C.F.R. §
416.920(a)(4)(i)-(iii).
At the fourth step of the sequential analysis, the ALJ
assesses the claimant’s residual functional capacity (“RFC”),
which is a determination of the most a person can do in a work
setting despite her limitations caused by impairments, id. §
416.920(a)(1), and her past relevant work, id. §
416.920(a)(4)(iv). If the claimant can perform her past
relevant work, the ALJ will find that the claimant is not
disabled. See id. If the claimant cannot perform her past
relevant work, the ALJ proceeds to Step Five, in which the ALJ
has the burden of showing that jobs exist in the economy which
the claimant can do in light of the RFC assessment. See id. §
416.920(a)(4)(v).
BACKGROUND
A detailed factual background can be found in Higgins’s
statement of facts (doc. no. 9) and the Commissioner’s statement
of facts (doc. no. 11). The court provides a brief summary of
the case here.
Higgins initially applied for supplemental security income
in July 2011; however, the claim was denied in June 2013 after
Higgins failed to appear for an administrative hearing.
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On September 3, 2015, Higgins filed another application for
supplemental security income, alleging a disability onset date
of June 21, 2014, when she was 32 years old. She alleged she
was disabled due to fibromyalgia, post-traumatic stress disorder
(“PTSD”), anxiety, sleep apnea, gastroesophageal reflux
disorder, and migraine headaches. After her claim was denied at
the initial level in November 2015, she requested a hearing
before an ALJ.
The ALJ held an initial hearing on July 6, 2017, and a
supplemental hearing on November 21, 2017. The ALJ denied
Higgins’s claim for benefits in a written decision dated January
10, 2018.
At step two, the ALJ found that Higgins had the following
severe impairments: anxiety, a panic disorder, agoraphobia,
PTSD, depression, bipolar disorder, marijuana abuse, a back
disorder, headaches, and obesity. The ALJ found that Higgins
had not presented sufficient evidence to establish that her
alleged fibromyalgia was a medically determinable impairment.
The ALJ also found that Higgins had medically determinable, but
non-severe, chronic fatigue, torticollis, polycystic ovarian
syndrome, obstructive sleep apnea, and hypothyroidism.
The ALJ concluded Higgins retained the RFC to:
perform light work as defined in 20 C.F.R 416.967(b)
except she should avoid all ladders, ropes and
scaffolds and should avoid all hazards, unprotected
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heights, etc. She is limited to simple 1 to 2 step
tasks and is able to maintain attention and
concentration for two-hour increments throughout an
eight-hour workday and 40-hour work week, in a low
stress environment (which is defined as limited to
little or not change in the work setting, and limited
to little or no need for the use of judgment). Should
avoid interaction with the general public and can
sustain occasional interaction with coworkers and
supervisors (defined as no more than brief and
superficial and for no more than about one third of
the day).
Admin. Rec. at 26. In assessing Higgins’s RFC, the ALJ gave
“great weight” to medical opinions from Dr. Landerman, a non-
examining state agency psychologist who completed a paper record
review, and Dr. Fuess, a non-examining psychologist who reviewed
Higgins’s case record. Admin. Rec. 40-41. The ALJ gave “less
than great weight” to a medical opinion from Dr. Bildner, a
doctor who conducted a psychological evaluation at the request
of Disability Determination Services, and “little weight” to a
medical opinion from Dr. Murray, Higgins’s primary care
physician. Admin. Rec. 40-41.
At step five, the ALJ relied on a vocational expert’s
testimony, and concluded that Higgins was capable of performing
jobs that exist in the national economy including mail clerk and
fruit distributor. Accordingly, the ALJ found that Higgins was
not disabled.
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The Appeals Council denied Higgins’s request for review in
October 2018, making the ALJ’s decision the Commissioner’s final
decision. This action followed.
DISCUSSION
Higgins contends that the ALJ erred in considering and
weighing the medical opinions about Higgins’s mental function
limitations. Specifically, Higgins argues that the Commissioner
erred by: (1) not considering or evaluating a medical opinion in
the record from Dr. Ciri, a doctor who conducted a consultative
exam on Higgins in 2012; (2) giving too little weight to Dr.
Bildner’s opinion; (3) giving great weight to Dr. Landerman’s
opinion; and (4) giving little weight to Dr. Murray’s opinion.
The Commissioner argues that, to the extent the ALJ made any
errors, reversal is not mandated.
The ALJ is required to consider and evaluate every medical
opinion that she receives. See 20 C.F.R. §§ 416.927(b),(c).
“Medical opinions are statements from acceptable medical sources
that reflect judgments about the nature and severity of [the
claimant’s] impairment(s), including [the claimant’s] symptoms,
diagnosis and prognosis, what [the claimant] can still do
despite impairment(s), and [the claimant’s] physical or mental
restrictions.” 20 C.F.R. § 416.927(a)(1).
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The ALJ analyzes the opinions of state agency consultants,
treating sources, and examining sources under the same rubric.
See id.; 20 C.F.R. § 416.927(c). The ALJ must consider “the
examining relationship, treatment relationship (including length
of the treatment relationship, frequency of examination, and
nature and extent of the treatment relationship), supportability
of the opinion by evidence in the record, consistency with the
medical opinions of other physicians,” along with the doctor’s
expertise in the area and any other relevant factors. Johnson
v. Berryhill, No. 16-cv-375-PB, 2017 WL 4564727, at *5 (D.N.H.
Oct. 12, 2017).
I. Dr. Ciri
Dr. Ciri conducted a consultative examination on Higgins
during the pendency of Higgins’s initial application for
supplemental security income in January 2012. At that time, Dr.
Ciri noted that Higgins was visibly affected by depression and
anxiety. Dr. Ciri administered a Wechsler Adult Intelligence
test, and Higgins scored in the low average range. Dr. Ciri
assigned Higgins a 50 on the “GAF” (Global Assessment of
Functioning) scale. Dr. Ciri’s opinion states that “[Higgins’s]
testing performance was impacted by anxiety, and she had
significant difficulty, at times, producing answers on demand.”
Admin. Rec. at 443. Dr. Ciri observed that Higgins expressed
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difficulties with memory, rendering it “likely that she could
have difficulties remembering and carrying out instructions.”
Id. Dr. Ciri concluded that Higgins’s emotional status “would
predictably compromise her ability to respond appropriately to
supervision, co-workers, and work pressures in a work setting.”
Id.
The ALJ did not address Dr. Ciri’s medical opinion in the
written decision. As mentioned, an ALJ is required to evaluate
all medical opinions. Ordinarily, “an ALJ’s failure to consider
a medical opinion in the record at all is legal error that
requires remand.” Dimambro v US Soc. Sec. Admin., Acting
Comm’r, No. 16-CV-486-PB, 2018 WL 301090, *4 (D.N.H. Jan. 5,
2018) (citing Nguyen, 172 F.3d at 35–36).
The Commissioner acknowledges that the ALJ did not address
Dr. Ciri’s opinion but argues that this error does not mandate
reversal because: (1) Dr. Ciri’s opinion pre-dates the start of
the relevant period; (2) the ALJ had, and considered, five other
opinions regarding Higgins’s mental limitations; (3) Dr. Ciri’s
opinion did not include a detailed mental RFC assessment and did
not conclude that Higgins was precluded from performing all
work; and, (4) it is not clear that the RFC would have been more
restrictive if the ALJ had considered Dr. Ciri’s report. Thus,
the Commissioner contends that any error was harmless. The
court is not persuaded by the Commissioner’s arguments.
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First, an ALJ is not free to disregard a medical opinion
because the opinion predates the alleged onset of disability.
Although such opinions may be of limited relevance in isolation,
evidence that predates the onset of disability may help
establish disability when considered and evaluated in
combination with later evidence. See Hartford v. Berryhill, No.
17-CV-467-SM, 2018 WL 1385913, at *6 (D.N.H. Mar. 19, 2018),
DeBoard v. Comm'r of Soc. Sec., 211 F. App'x 411, 414 (6th Cir.
2006). Accordingly, “ALJs should not ignore medical reports
simply because they predate the alleged onset of disability.”
Beth v. Astrue, 494 F. Supp. 2d 979, 1007 (E.D. Wis. 2007).
Second, the presence of multiple medical opinions on an
issue does not obviate the requirement that an ALJ “always
consider the medical opinions” in the claimant’s case record.
20 C.F.R. § 416.927(b). Although an ALJ does not need to
address every individual piece of evidence that is cumulative or
unhelpful to the claimant, “an ALJ is not free to simply ignore
medical opinions supporting a claimant’s position.” Dimambro,
2018 WL 301090, *4. Here, Dr. Ciri’s opinion was neither
cumulative nor unhelpful. On the contrary, her opinion
contained objective evidence, including IQ test results and a
GAF number, that were not duplicated elsewhere in the record.
This objective evidence supported Dr. Ciri’s conclusion that
Higgins’s mental impairments limited her ability to function in
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a work setting. Accordingly, this court cannot conclude that
the ALJ’s failure to consider Dr. Ciri’s opinion was rendered
harmless by the presence of other medical opinions in the
record.
In addition, the ALJ’s failure to consider and evaluate Dr.
Ciri’s opinion may have caused the ALJ to erroneously give
lesser weight to other favorable medical opinions. For example,
the ALJ gave “less than great weight” to Dr. Bildner’s opinion
that Higgins was “unable to sustain prolonged attention and
concentration,” “unable to manage stress common to a work
setting,” and “unable to maintain a consistent schedule,”
because Dr. Bildner’s opinion purportedly did not “state what
objective evidence [Dr. Bildner] relied upon in making her
assessment.” Admin. Rec. 41. However, Dr. Bildner’s opinion
explicitly states that she reviewed Dr. Ciri’s opinion in
rendering her own opinion. Admin. Rec. 654. The ALJ also gave
“little weight” to Dr. Murray’s opinion, Higgins’s treating
physician, because the “objective evidence does not support
extreme or marked limitations.” Admin. Rec. 41. However, Dr.
Ciri’s opinion contains objective evidence that supports Dr.
Murray’s opinion. Therefore, if the ALJ had considered Dr.
Ciri’s opinion and the objective evidence contained therein, the
ALJ may have afforded greater weight to the other favorable
opinions and assessed Higgins as having a more restrictive RFC.
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Although the Commissioner argues that reversal is not
required, the Commissioner has not provided the court with legal
authority that supports this outcome. On the contrary, numerous
courts have remanded in similar circumstances. See, e.g.,
Nguyen, 172 F.3d at 35-36 (remanding when ALJ did not mention
favorable medical opinion because “[t]he ALJ was not at liberty
to ignore medical evidence”); Kneeland v. Berryhill, 850 F.3d
749, 761 (5th Cir. 2017) (remanding after ALJ failed to mention
a medical opinion in the decision); Adorno v. Shalala, 40 F.3d
43, 48 (3d Cir. 1994) (remanding after ALJ failed to mention a
medical opinion because an ALJ must “provide some explanation
for a rejection of probative evidence which would suggest a
contrary disposition”); Perry v. Colvin, 91 F. Supp. 3d 139, 153
(D. Mass. 2015) (remanding because “if the opinions had been
properly evaluated by the ALJ, the weight of the evidence could
have shifted in Plaintiff’s favor”).
Therefore, because it is the task of the ALJ, not this
court, to resolve conflicts in the evidence and determine
whether a claimant is disabled, this court remands the case to
the ALJ. See Rodriguez v. Sec'y of Health & Human Servs., 647
F.2d 218, 222 (1st Cir. 1981).
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II. Remaining Arguments
Because the court concludes that the ALJ’s failure to
address Dr. Ciri’s medical opinion requires reversal, the court
need not address Higgins’s additional challenges regarding the
weight the ALJ afforded the other medical opinions in the
record. Indeed, the ALJ may decide to assign different weights
to those opinions after considering and evaluating Dr. Ciri’s
opinion. See 20 C.F.R. § 416.927(c).
CONCLUSION
For the foregoing reasons, Higgins’s motion to reverse
(doc. no. 8) is granted, and the Commissioner’s motion to affirm
(doc. no. 10) is denied. The clerk of court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
January 7, 2020
cc: Counsel of Record.
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