Jenness v. SSA

                     UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW HAMPSHIRE



Wayne H. Jenness

  v.                                 Civil No. 15-cv-005-LM
                                     Opinion No. 

Carolyn W. Colvin, Acting
Commissioner, Social
Security Administration


                              O R D E R


    Pursuant to 

(g), Wayne Jenness moves to

reverse the Acting Commissioner’s decision to deny his

application 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 consistent with this order.


                         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
    . . . .

(g) (setting out the standard of review for DIB

decisions); see also 

(c)(3) (establishing §

405(g) as the standard of review for SSI decisions).   However,

the court “must uphold a denial of social security . . .

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) (quoting

Sullivan v. Hudson, 

 (1989)).

    As for the statutory requirement that the Acting

Commissioner’s findings of fact be supported by substantial

evidence, “[t]he substantial evidence test applies not only to

findings of basic evidentiary facts, but also to inferences and

conclusions drawn from such facts.”    Alexandrou v. Sullivan, 

 (S.D.N.Y. 1991) (citing Levine v. Gardner,

 (2d Cir. 1966)).    In turn, “[s]ubstantial

evidence is ‘more than [a] mere scintilla.   It means such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’”   Currier v. Sec’y of HEW, 

 (1st Cir. 1980) (quoting Richardson v. Perales, 

 (1971)).   But, “[i]t is the responsibility of the

[Acting Commissioner] to determine issues of credibility and to



                                2
draw inferences from the record evidence.      Indeed, the

resolution of conflicts in the evidence is for the [Acting

Commissioner], not the courts.”       Irlanda Ortiz v. Sec’y of HHS,

 (1st Cir. 1991) (citations omitted).

Moreover, the court “must uphold the [Acting Commissioner’s]

conclusion, even if the record arguably could justify a

different conclusion, so long as it is supported by substantial

evidence.”    Tsarelka v. Sec’y of HHS, 

 (1st

Cir. 1988).   Finally, when determining whether a decision of the

Acting Commissioner is supported by substantial evidence, the

court must “review[] the evidence in the record as a whole.”

Irlanda Ortiz, 

 (quoting Rodriguez v. Sec’y of

HHS, 

 (1st Cir. 1981)).


                           II. Background

    The parties have submitted a Joint Statement of Material

Facts, document no. 9.    That statement is part of the court’s

record and will be summarized here, rather than repeated in

full.

    Jenness has a history of complaints about pain and numbness

in his left shoulder and arm as well as back pain.      Jenness has

also been diagnosed with mental impairments including




                                  3
depression,1 generalized anxiety disorder, panic disorder without

agoraphobia, and alcohol abuse in partial remission.    The record

includes several opinions on Jenness’s mental residual

functional capacity (“RFC”).2

     In early October of 2012, Jenness was seen by Dr. Cheryl

Bildner, who gave him a mental status examination and reviewed

various records including individual therapy notes.     Dr. Bildner

diagnosed Jenness with depressive disorder and generalized

anxiety disorder, and gave a “rule out” diagnosis of alcohol

abuse.3   Based upon her examination, she offered the following

opinions on Jenness’s then current level of functioning:

     Claimant is able to complete activities of daily
     living.

     . . . .

     Claimant is unable to sustain appropriate social
     interaction with others. He reports becoming verbally
     aggressive towards others and further reports losing his
     temper several times a week. He has worked alone for the

     1 Jenness’s diagnoses for depression include depressive
disorder, major depression, recurrent major depression, and
“major depressive disorder, recurrent, mild.” Tr. 579.

     2 “Residual functional capacity” is a term of art that means
“the most [a claimant] can still do despite [his] limitations.”

(a) & 416.945(a).

     3 “‘Rule-out’ in a medical record means that the disorder is
suspected but not confirmed – i.e., there is evidence that the
criteria for a diagnosis may be met, but more information is
needed to rule it out.” Byes v. Astrue, 

, 916 n.3
(8th Cir. 2012) (citing United States v. Grape, 

,
593 n.2 (3d Cir. 2008)).


                                 4
      past 20 years. He described how he was his “own boss” and
      had limited social interactions with others.

      . . . .

      Claimant is able to understand and recall basic
      information. No gross deficits were observed in
      cognitive functioning.

      . . . .

      Claimant is unable to sustain concentration and
      complete tasks in a timely manner. He has been unable
      to sustain employment and exhibits as well as
      describes a lack of focus and motivation.

      . . . .

      Claimant is unable to manage stress common to a work
      place. He is unable to maintain a schedule. He is
      able to make basic decisions. He is unable to sustain
      appropriate social interaction.

Tr. 328.   Dr. Bildner also offered this prognosis:

           Claimant is currently engaged in treatment.
      Continuity of care is important. It is unclear if
      claimant is taking medications reliably and
      consistently. Return to work in the near future, on a
      consistent basis, is unlikely at this time.

      Shortly after Dr. Bildner provided her opinions, a

nonexamining state-agency psychological consultant, Dr. Laura

Landerman, provided a mental RFC assessment of Jenness.

Generally speaking, Dr. Landerman gave weight to Dr. Bildner’s

opinion, with some exceptions.   Substantively, Dr. Landerman

opined that Jenness had no limitations in either the realm of

understanding and memory or the realm of adaptation.    She also


                                 5
opined that Jenness had some limitations in the realm of

sustained concentration and persistence and the realm of social

interaction.   With regard to sustained concentration and

persistence, Dr. Landerman indicated that Jenness had no

significant limitations in five areas and moderate limitations

in three areas.   She also provided the following narrative

explanation:

    [Jenness] is able to maintain a schedule [and
    attendance] with[in] customary tolerances[.] Dr.
    [Bildner] opines otherwise but her opinion is not
    fully supported by available [medical evidence of
    record] nor self reported activities which includes
    caretaking of wife on a daily regular basis.

    [Jenness] is able to sustain concentration and
    [attention] for routine tasks for two [hour periods.]
    Dr. Bildner’s opinion that he is unable to do so is
    not fully supported in [the medical evidence of
    record] available[.]

    [Jenness] is able to persist to routine tasks at an
    acceptable pace within the context of an 8 hour day
    and 40 hour week without excessive interruptions from
    psych symptoms[.] Dr. Bildner opines otherwise which
    is not fully supported in available [medical evidence
    of record.]

Tr. 72.   While Dr. Landerman noted the lack of support for Dr.

Bildner’s opinion in the medical record, she did not identify

any support for her own opinion in the medical evidence of

record.   Moreover, to discredit Dr. Bildner’s opinion on

Jenness’s ability to maintain a schedule, Dr. Landerman relied

upon Jenness’s self-reported caretaking activities, which



                                 6
consisted of one or two hours per day of caring for his wife in

the home they shared.    See Tr. 201.   With regard to social

interaction, Dr. Landerman indicated that Jenness had no

significant limitations in three areas and moderate limitations

in two areas.    She also provided the following narrative

explanation: “needs a semi-or socially-isolated work station and

a supervisor who [delivers] feedback in a manner which is not

overly harsh or critical of his performance.”    Tr. 73.

    In May of 2013, Dr. Lester Nicholson, Jenness’s treating

psychiatrist, completed a “Mental Impairment Medical Source

Statement” on Jenness.    In the form he filled out, Dr. Nicholson

diagnosed Jenness with recurrent major depression, generalized

anxiety disorder, panic disorder without agoraphobia, and

alcohol abuse in partial remission.     He also identified 10

different signs and symptoms of the disorders he diagnosed.

    With regard to the mental abilities and aptitudes necessary

for unskilled work, Dr. Nicholson rated Jenness as “unlimited or

very good” in five areas and “limited but satisfactory” in three

other areas.    He also opined that Jenness was “seriously limited

but not precluded” in the area of accepting instructions and

responding appropriately to criticism from supervisors and the

area of dealing with normal work stress.     Tr. 543.   Finally, Dr.

Nicholson opined that Jenness was “unable to meet competitive



                                  7
standards” in six different abilities and aptitudes needed to do

unskilled work: maintaining attention for two hours at a time,

maintaining regular attendance and customary punctuality,

sustaining an ordinary routine without special supervision,

working in coordination with or proximity to others without

being unduly distracted, completing a normal workday and

workweek without interruptions from psychologically based

symptoms, and performing at a consistent pace without an

unreasonable number and length of rest periods.    Tr. 542-43.

When asked to explain those limitations and “the

medical/clinical findings that support[ed] [his] assessment,”

Dr. Nicholson responded: “Patient report.”   Tr. 544.

    Finally, Dr. Nicholson opined that Jenness’s mental

impairments or treatment for those impairments would cause him

to be absent from work more than four days per month.   Dr.

Nicholson gave this prognosis: “Fair given lack of response to

treatment thus far.”   Tr. 541.   At the time he gave his opinion,

Dr. Nicholson had been treating Jenness for approximately four

months, seeing him once every four to six weeks.

    In a letter dated September 16, 2013, Dr. Nicholson

informed Jenness’s counsel that it was his “medical opinion that

[Jenness’s] limitations as assessed in the questionnaire sent to

[counsel] on 5/6/13 continue[d] to be appropriate and [were]



                                  8
consistent with [his] observations of Mr. Jenness as an ongoing

patient.”   Tr. 550.   Between May 6 and September 16, Dr.

Nicholson saw Jenness on no fewer than four occasions, and

during three of those visits, Dr. Nicholson administered mental

status examinations.

    After conducting a hearing, the ALJ issued a decision that

includes the following relevant findings of fact and conclusions

of law:

    3. The claimant has the following severe impairments:
    degenerative disc disease of the spine, depression,
    anxiety (panic disorder without agoraphobia) and
    alcohol abuse in early remission (20 CFR 404.1520(c)
    and 416.920(c)).

    . . . .

    4. The claimant does not have an impairment or
    combination of impairments that meets or medically
    equals the severity of one of the listed impairments
    in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
    404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
    and 416.926).

    . . . .

    5. After careful consideration of the entire record,
    the undersigned finds that the claimant has the
    residual functional capacity to perform light work as
    defined in 20 CFR 404.1567(b) and 416.967(b) except he
    can only occasionally climb, balance, stoop, kneel,
    crouch or crawl. He is limited to the performance of
    simple, unskilled-type work. He is able to maintain
    attention and concentration for 2-hour increments
    throughout an 8-hour workday and 40-hour workweek.
    The claimant should avoid social interaction with the
    general public but can sustain brief and superficial
    social interaction with co-workers and supervisors.



                                 9
    . . . .

    6. The claimant is unable to perform any past
    relevant work (20 CFR 404.1565 and 416.965).

    . . . .

    10. Considering the claimant’s age, education, work
    experience, and residual functional capacity, there
    are jobs that exist in significant numbers in the
    national economy that the claimant can perform (20 CFR
    404.1569, 404.1569(a), 416.969, and 416.969(a)).

Tr. 21, 22, 25, 31, 32.   Based upon his assessment of Jenness’s

residual functional capacity, and a hypothetical question posed

to a vocational expert (“VE”) that incorporated the RFC recited

above, the ALJ determined that Jenness was able to perform the

jobs of assembler of plastic hospital products, marker, and

automatic car-wash attendant.


                          III. Discussion

    A. The Legal Framework

    To be eligible for disability insurance benefits, 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 supplemental security income, a person must be aged, blind,

or disabled, and must meet certain requirements pertaining to

income and assets.   

(a).   The question in this




                                10
case is whether Jenness was under a disability from July 12,

2012, through the date of the ALJ’s decision, November 22, 2013.

    For the purpose of determining eligibility for disability

insurance benefits,

    [t]he term “disability” means . . . inability to
    engage in any substantial gainful activity by reason
    of any medically determinable physical or mental
    impairment which can be expected to result in death or
    which has lasted or can be expected to last for a
    continuous period of not less than 12 months.

(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A)

(setting out a similar definition of disability for determining

eligibility for SSI benefits).    Moreover,

    [a]n individual shall be determined to be under a
    disability only if his physical or mental impairment
    or impairments are of such severity that he is not
    only unable to do his previous work but cannot,
    considering his age, education, and work experience,
    engage in any other kind of substantial gainful work
    which exists in the national economy, regardless of
    whether such work exists in the immediate area in
    which he lives, or whether a specific job vacancy
    exists for him, or whether he would be hired if he
    [she] applied for work. . . .

(d)(2)(A) (pertaining to DIB benefits); see also

42 U.S.C. § 1382c(a)(3)(B) (setting out a similar standard for

determining eligibility for SSI benefits).

    To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI benefits, an ALJ

is required to employ a five-step process.    See 

 (DIB) & 416.920 (SSI).


                                  11
    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.

Seavey v. Barnhart, 

 (1st Cir. 2001) (citing 

).

    The claimant bears the burden of proving that he is

disabled.   See Bowen v. Yuckert, 

 (1987).    He

must do so by a preponderance of the evidence.   See Mandziej v.

Chater, 

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

Schweiker, 

) (D. Mass. 1982)).    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)).




                                12
    B. Jenness’s Claims

    Jenness claims that this case must be remanded because the

ALJ: (1) determined his physical RFC without the benefit of the

opinion of a medical expert; and (2) failed to give controlling

weight to the opinion of his treating psychiatrist, Dr.

Nicholson.   Jenness’s second argument, while not entirely

correct, is sufficient to warrant remand.

    Under the applicable Social Security regulations, if an ALJ

happens to

    find that a treating source’s opinion on the issue(s)
    of the nature and severity of [a claimant’s]
    impairment(s) is well-supported by medically
    acceptable clinical and laboratory diagnostic
    techniques and is not inconsistent with the other
    substantial evidence in [the claimant’s] case record,
    [the ALJ] will give it controlling weight.

(c)(2) & 416.927(c)(2).   Because Dr.

Nicholson’s opinion was not consistent with the opinion offered

by Dr. Landerman, the ALJ did not err by declining to give Dr.

Nicholson’s opinion controlling weight.   But that is not the end

of the story.

    When an ALJ declines to give controlling weight to the

opinion of a treating source, he or she must still determine the

amount of weight to give it.   When doing so, an ALJ should

consider the following factors: (1) the length of the treatment

relationship and the frequency of examination; (2) the nature



                                13
and extent of the treatment relationship; (3) supportability;

(4) consistency with the record as a whole; (5) the medical

specialization of the person giving the opinion; and (6) other

factors which tend to support or contradict the opinion.   See 

(c)(2)-(6) & 416.927(c)(2)-(6).   Here, after

weighing the medical opinions before him, the ALJ gave great

weight to the opinions of Dr. Landerman, and little weight to

the opinions of Drs. Nicholson and Bildner.

    The Social Security regulations pertaining to the

assessment of medical opinions provide that

    generally speaking, the greatest weight should be
    placed on opinions from treating sources, with less
    weight placed on opinions from medical sources who
    merely examine a claimant, and the least weight of all
    on opinions from medical sources who have neither
    treated nor examined a claimant.

McLaughlin v. Colvin, No. 14-cv-154-LM, 

, at *5

(D.N.H. June 8, 2015).   However, “[w]hile generic deference is

reserved for treating source opinions, the regulations also

presuppose that nontreating, nonexamining sources may override

treating doctor opinions, provided there is support for the

result in the record.”   Shaw v. Sec’y of Health & Human Servs.,

 (unreported table decision), 

, at *4

(1st Cir. 1994) (citations omitted); see also Berrios Lopez v.

Sec’y of Health & Human Servs., 

 (1st Cir.




                                14
1991) (collecting cases in which opinions of treating physicians

have been permissibly discounted).

    While it is for the ALJ to determine how much weight to

give the opinion of a treating source, the ALJ must “always give

good reasons in [his] notice of . . . decision for the weight

[he gives a claimant’s] treating source’s opinion.”      

(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).      Accordingly, the court turns

to the explanations the ALJ gave for according less weight to

the opinions of Dr. Nicholson than he accorded to the opinions

of Dr. Landerman.

    In his decision, the ALJ explained that he gave little

weight to Dr. Nicholson’s opinions because they were: (1) based

largely upon Jenness’s subjective allegations; (2) substantially



                                  15
different from Dr. Landerman’s opinions; (3) “provided on a

check-box-type form, which was offered merely for the purposes

of establishing disability,” Tr. 30; (4) inconsistent with Dr.

Nicholson’s treatment notes; and (5) inconsistent Jenness’

activities of daily living.   While it is a close call, the court

concludes that the ALJ has not articulated an adequate rationale

for discounting Dr. Nicholson’s opinions.

    The court begins with two overarching concerns.    First, the

ALJ did not consider three of the six factors mentioned in 

(c)(2)-(6) & 416.927(c)(2)-(6), i.e., those

pertaining to Dr. Nicholson’s area of specialization and the

length and nature of his treatment relationship with Jenness.

    Second, the ALJ’s decision suffers from a general lack of

specificity.   An AJL must provide specific reasons for assigning

weight to a treating source’s opinion because “‘specific

reasons’ . . . allow ‘subsequent reviewers [to know] . . . the

weight the adjudicator gave to the treating source’s medical

opinion and the reasons for that weight.’”   Kenerson, 

, at *4 (quoting Social Security Ruling 96-2p, 

, at *5 (1996)).   “[W]here no such ‘specific reasons’ are

given, remand is appropriate if the failure renders meaningful

review impossible.”   

 at *4 (citing Lord v. Apfel, 

 (D.N.H. 2000)).   Here, Dr. Nicholson’s Mental



                                 16
Impairment Medical Source Statement included many different

opinions, including his conclusion that Jenness could not meet

competitive standards in six different abilities and aptitudes

needed to perform unskilled work.     However, no more than two of

the ALJ’s five explanations are tied to a specific opinion

offered by Dr. Nicholson; the rest are generic criticisms

seemingly directed to Dr. Nicholson’s statement as a whole.

Beyond that, there are significant problems with most of the

ALJ’s individual explanations.

    The ALJ “gave Dr. Nicholson’s opinions little weight

because they also appeared to be based largely on the claimant’s

subjective allegations, which, as I indicated above, I did not

find to be entirely credible.”   Tr. 30.   On its face, that is an

acceptable reason for discounting a treating source’s opinion.

See Haggblad v. Astrue, No. 11-cv-028-JL, 

, at

*12 (D.N.H. Nov. 17, 2011) (citations omitted), report and

recommendation adopted by 

 (D.N.H. Dec. 6, 2011).

But here, the ALJ noted Dr. Nicholson’s reliance upon Jenness’s

subjective reports without also noting that Dr. Nicholson

reaffirmed his opinions in his letter of September 16, 2013,

which he wrote after he had given Jenness several mental status

examinations.   Nowhere in his discussion of Dr. Nicholson’s

opinions did the ALJ mention either the September 16 letter or



                                 17
the mental status examinations that proceeded it.   The Acting

Commissioner attempts to fill that gap in her memorandum of law,

arguing that the results of Jenness’s September 9 mental status

examination support the ALJ’s decision to discount Dr.

Nicholson’s opinion.   However, the court cannot affirm the ALJ’s

decision based upon rationales left unarticulated by the ALJ.

See High v. Astrue, No. 10-cv-69-JD, 

, at *6

(D.N.H. Mar. 17, 2011).   And, in any event, the Acting

Commissioner does not explain how, precisely, the findings from

the mental status examination contradict Dr. Nicholson’s

opinions.

    The ALJ “gave Dr. Nicholson’s opinion that the claimant was

suffering from moderate limitations in performing his activities

of daily living, and marked limitations in social functioning,

and with respect to maintaining concentration, persistence and

pace, little weight because these conclusions were so

drastically divergent from the opinion of Dr. Landerman as to

render them somewhat less reliable.”   Tr. 30.   That Dr.

Nicholson’s opinions differed from Dr. Landerman’s opinions

provides no logical basis for deeming Dr. Landerman’s opinions

more reliable than Dr. Nicholson’s opinions, especially where

Dr. Nicholson’s opinions were largely consistent with Dr.




                                18
Bildner’s opinions, making Dr. Landerman’s opinions the

outliers, not Dr. Nicholson’s.

    The ALJ next criticizes Dr. Nicholson’s opinions for being

presented on a check-box form.      But that criticism applies with

equal force to Dr. Landerman’s opinions, which are presented in

a similarly generic manner.   The court also notes that the bulk

of the narrative in Dr. Landerman’s mental RFC assessment

consists of her attempt to discredit Dr. Bildner’s opinions.

Whether Dr. Landerman’s criticisms of Dr. Bildner’s opinions

constitute substantial evidence in support of Dr. Landerman’s

opinions is an interesting question the court need not address.

    The ALJ also found Dr. Nicholson’s “opinion to be

inconsistent with treatment notes that reflected improved

symptoms with the claimant having engaged [in] consistent mental

health treatment, and the claimant abstaining from alcohol use.”

Tr. 30.   There are two problems.     First, Dr. Nicholson offered

opinions on multiple aspects of Jenness’s mental RFC, and the

ALJ does not indicate which of Dr. Nicholson’s opinions is

inconsistent with his treatment notes.     Second, the ALJ does not

identify the treatment notes to which he is referring, which is

obviously an impediment to meaningful review.      The Acting

Commissioner, however, suggests that the relevant treatment




                                 19
notes are those generated by Jenness’s visits to Dr. Nicholson

on September 9 and October 7, 2013.

       In his note on the September 9 visit, Dr. Nicholson

recorded the following history: “Pt is still depressed with no

improvement in motivation, concentration, or energy but anxiety

and sleep are a little better.”       Tr. 577.   That visit resulted

in an increase in Jenness’s dosage of nortriptyline.4       See Tr.

579.       After the October 7 visit, Dr. Nicholson recorded the

following history: “Pt reports minimal improvement in depression

and anxiety on Nortriptyline 100 mg.”       Tr. 581.   However,

neither the ALJ nor the Acting Commissioner: (1) identifies any

specific opinion by Dr. Nicholson that is inconsistent with the

minimal improvement that resulted from the change in Jenness’s

medication; or (2) explains how that minimal improvement

contradicts Dr. Nicholson’s opinions that Jenness could not meet

competitive standards in six different abilities and aptitudes

needed to perform unskilled work.

       Finally, the ALJ “found Dr. Nicholson’s opinion

inconsistent with the claimant’s somewhat robust activities, and

his diminished credibility given his limited work history and

the exaggerated nature of the subjective allegations contained


       Nortriptyline is an antidepressant that is “also used to
       4

treat panic disorder.” Dorland’s Illustrated Medical
Encyclopedia 1291 (23rd ed. 2012).


                                    20
in his function report.”    Tr. 30.    But, as noted, that

explanation does not indicate the specific opinion(s) to which

the ALJ was referring.     Moreover, it does not indicate what

“robust activities,” in particular, were inconsistent with Dr.

Nicholson’s opinion(s).

    As the court has noted, the adequacy of the ALJ’s

explanation for giving little weight to Dr. Nicholson’s opinions

is a close question.     But, given the logical problems with some

of the ALJ’s explanations, and their significant lack of

specificity, the court concludes that the ALJ’s decision to

discount Dr. Nicholson’s opinions in favor of Dr. Landerman’s

opinions is not supported by substantial evidence.      Accordingly,

this case must be remanded.

    Because this case is being remanded because of the manner

in which the ALJ handled Dr. Nicholson’s opinions, the court

need not address Jenness’s first argument, concerning the ALJ’s

assessment of his physical RFC.       However, given the lack of any

expert opinion on Jenness’s physical RFC in the record, and

given Jenness’s alleged difficulties in using his left arm, the

Acting Commissioner may wish to consider purchasing a

consultative examination, to ensure that the record contains

adequate evidence to support a proper determination of Jenness’s

physical RFC.



                                  21
                           IV. Conclusion

      For the reasons detailed above, the Acting Commissioner’s

motion for an order affirming her decision, document no. 10, is

denied, and Jenness’s motion to reverse that decision, document

no. 7, is granted to the extent that the case is remanded to the

Acting Commissioner for further proceedings, pursuant to

sentence four of 

(g).   The clerk of the court

shall enter judgment in accordance with this order and close the

case.

      SO ORDERED.




                                __________________________
                                Landya McCafferty
                                United States District Judge


August 27, 2015

cc:     D. Lance Tillinghast, Esq.
        Terry L. Ollila, Esq.




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