Shaw v. SSA

                    UNITED STATES DISTRICT COURT
                      DISTRICT OF NEW HAMPSHIRE



Laura Kathleen Shaw

     v.                                      Civil No. 13-cv-503-JL
                                             Opinion No. 

Carolyn Colvin, Acting Commissioner,
Social Security Administration


                           ORDER ON APPEAL

     Laura Shaw appeals the Social Security Administration’s

(“SSA”) denial of her application for disability insurance

benefits.    An administrative law judge at the SSA (“ALJ”) ruled

that, despite Shaw’s severe impairments of major depressive

disorder, anxiety disorder, post-traumatic stress disorder versus

generalized anxiety disorder, and degenerative disc disease of

the lumbar spine, she retains the residual functional capacity to

perform substantial gainful activity which exists in the national

economy, and, as a result, is not disabled.      See 

(a).    The Appeals Council denied Shaw’s request for

review of the ALJ’s decision, see 

 § 404.968(a), with the

result that the ALJ’s decision became the SSA’s final decision on

Shaw’s application, see id. § 404.981.       Shaw then appealed the

decision to this court, which has jurisdiction under 

(g) (Social Security).

     Shaw has filed a motion to reverse the decision.      See L.R.

9.1(b)(1).   She argues, among other things, that the ALJ erred in
evaluating the opinions of the various medical professionals who

provided assessments of Shaw’s ability to perform work-related

activities.    The Commissioner of the SSA maintains that the ALJ

committed no error and has cross-moved for an order affirming the

decision.    See L.R. 9.1(d).     After careful consideration, the

court agrees with Shaw that the ALJ erred in evaluating at least

some of the opinion evidence, and therefore grants her motion to

reverse (and denies the Commissioner’s motion to affirm) the

ALJ’s decision.

     Although, as already mentioned, the ALJ found that Shaw

suffers from a combination of physical and mental impairments,

the ALJ concluded that Shaw’s mental impairments limit her to

“uncomplicated tasks,” but otherwise have no effect on her RFC.

All three medical sources to comment on that issue, however,

opined that her mental impairments impose greater restrictions.

Dr. Benjamin Garber, who conducted an in-person psychological

evaluation of Shaw, concluded that she is “able to understand and

remember instructions only with intense and immediate supports,”

can “concentrate to complete tasks only over the short term and

with immediate supports,” and “cannot tolerate work place

stresses.”    Admin. R. at 330.    Dr. Nicholas Kalfas, a non-

examining state agency medical consultant, opined not long

thereafter that Shaw’s mental impairments cause her marked



                                     2
difficulties in maintaining concentration, persistence, or pace,

and concluded that the evidence of record was sufficient to

establish a disability onset date of January 1, 2011.     Another

state agency consultant, Dr. William Jamieson, opined that Shaw

suffered moderate limitations in a number of functional areas,

and explained:

     Due to symptoms of anxiety and depression, the claimant
     is not consistently able to deal with extended or
     detailed instructions, to maintain attention and
     persistence to task consistently over extended periods,
     or to consistently perform activities within a
     schedule, including attendance. She cannot
     consistently sustain an ordinary routine without
     special supervision. She has very limited stress
     tolerance, and cannot consistently deal with common
     work-related stress.

Id. at 349.

     In her written decision, the ALJ addressed only the opinions

of Drs. Garber and Jamieson (the latter of whom she incorrectly

identified as Dr. Kalfas), affording “very limited weight” to

both.   She did not address the opinion of Dr. Kalfas at all--an

omission which by itself would arguably necessitate remand, since

the governing regulations require an ALJ to “explain in the

decision the weight given to the opinions of a State agency

medical or psychological consultant or other program physician,

psychologist, or other medical specialist.”   

(e)(2)(ii); see also Social Security Ruling (“SSR”) 96-

6p, Titles II and XVI: Consideration of Administrative Findings


                                 3
of Fact by State Agency Medical and Psychological Consultants,

, at *2 (S.S.A. 1996) (ALJs “are not bound by

findings made by State agency or other program physicians and

psychologists, but they may not ignore these opinions and must

explain the weight given to the opinions in their decisions”);

Dube v. Astrue, 

 (D.N.H. 2011) (ALJ’s

decision reversed for failure to discuss findings by state agency

consultant that contradicted ALJ’s conclusion).   Notwithstanding

that omission, however, the court would still be constrained to

reverse the ALJ’s decision.

     While ALJs are “afforded a substantial amount of discretion”

in weighing medical source opinions, that discretion is not

unbridled, and must be “exercised reasonably.”    Maio v. Astrue,

 (quoting Dumensil v. Astrue, 

).

An ALJ’s decision to discount the opinion of a medical source,

like an ALJ’s other findings, must be supported by substantial

evidence in the record.   See, e.g., Mackinley v. Astrue, 

.   Where an ALJ relies on inconsistencies between a

source’s opinion and the record to discount that opinion, “the

claimed inconsistencies must be adequately supported by the

record as well.”   Beck v. Astrue, 

.   Here, the

bulk of the ALJ’s stated reasons for discounting the opinions of

Drs. Garber and Jamieson do not find support in the record.



                                 4
     In rejecting those opinions, the ALJ relied principally on

her own observations of Shaw at the administrative hearing.

Discussing Dr. Jamieson’s opinion, she wrote:

     The opinions of Dr. [Jamieson] are given very limited
     weight, as they are highly inconsistent with the
     claimant’s presentation at the hearing. There, she was
     able to offer very articulate and detailed answers to
     the questions posed. She was also able to remember all
     of her medications, including dosing, and provided a
     list of past medications from memory as well. She
     appeared to have no difficulty building a rapport with
     the undersigned and maintaining attention over the
     duration of the period. Further, the claimant reported
     that she is able to attend church and [B]ible study
     weekly, which undoubtedly requires a good amount of
     concentration as well as social interaction. She also
     reported that she spends most of her time reading on
     her [K]indle, which again requires ample concentration
     over extended periods. As such, the undersigned finds
     that the claimant is able to sustain the concentration,
     persistence, and pace required for at least
     uncomplicated tasks over an 8-hour workday and 40-hour
     workweek.

Admin. R. at 22.   The ALJ cited similar reasons for discounting

Dr. Garber’s opinions (although she also noted inconsistencies

between his exam notes and findings).   

     The ALJ’s interactions with Shaw at the hearing did not

provide sufficient grounds for rejecting the opinions of Drs.

Garber and Jamieson.   To be sure, there may well be circumstances

in which the claimant’s presentation at the hearing runs so

counter to a medical opinion regarding the claimant’s limitations

as to effectively undermine it–-e.g., if a source opines that the

claimant is so socially anxious that she is incapable of carrying


                                 5
on a conversation, but then has no difficulty casually conversing

with the ALJ at the hearing.1   But that is not the case here.   At

best, the fact that Shaw could “remember all of her medications,

including dosing, and provided a list of past medications from

memory” might cast doubt on Dr. Garber’s opinion that Shaw is

“able to understand and remember instructions only with intense

and immediate supports.”   The ALJ’s other specific observations,

however–-Shaw’s ability “to offer very articulate and detailed

answers” and lack of “difficulty building a rapport” with the ALJ

or “maintaining attention” during the hearing–-are in no way

inconsistent (let alone “highly inconsistent”) with the other

opinions offered by the doctors.

     By way of example, that Shaw could maintain her attention

for the duration of the one-hour hearing does not show that,

contrary to Dr. Jamieson’s opinion, she can in fact “maintain

attention and persistence to task consistently over extended

periods.”   Along the same lines, that Shaw was able to interact

appropriately with the ALJ for that same relatively short period


     1
     Of course, an ALJ may also rely upon her own observations
of the claimant at the hearing when evaluating the credibility of
the claimant’s complaints. See, e.g., SSR 96-7p, Titles II and
XVI: Evaluation of Symptoms in Disability Cases, 

,
at *5 (S.S.A. 1996) (“In instances where the individual attends
an administrative proceeding conducted by the adjudicator, the
adjudicator may also consider his or her own recorded
observations of the individual as part of the overall evaluation
of the credibility of the individual’s statements.”).

                                   6
does not show that, contrary to both doctors’ opinions, she can

tolerate the stresses commonly presented in an eight-hour workday

or 40-hour workweek.    And none of the ALJ’s other observations

from her brief interaction with Shaw rebut the doctors’ other

opinions, i.e., that Shaw cannot concentrate well enough to

complete tasks for more than a short term and without immediate

supports, cannot deal with extended or detailed instructions, and

is unable to consistently perform activities within a schedule or

sustain an ordinary routine.

     The other grounds on which the ALJ relied in discounting Dr.

Jamieson’s opinion–-Shaw’s reading and her attendance at church–-

are likewise lacking.    While the ALJ’s decision claims that Shaw

“spends most of her time reading on her [K]indle,” the record

shows that, in fact, Shaw testified only that she reads “to pass

the time.”   Admin. R. at 49.   She made no specific representation

as to the amount of time she spends reading, although she did

state that she had difficulty doing so “for any length of time

due to pain, fatigue and concentration problems,” 

 at 135–-

directly contradicting the conclusion the ALJ drew from Shaw’s

reading, that she is capable of “concentrat[ing] over extended

periods.”    Similarly, Shaw did not report that she was “able to

attend church and [B]ible study weekly,” only that she “tried”

to, id.–-and she in fact told Dr. Garber that she could “seldom



                                  7
get out to church,” id. at 329.        In any event, while attendance

at church may require “a good amount of concentration as well as

social interaction,” as the ALJ speculated, that does nothing to

undermine Dr. Jamieson’s opinions.       As already mentioned, the

ability to concentrate for short periods does not translate to an

ability to summon the concentration needed to perform tasks

consistently in a workplace environment over the course of an

eight-hour workday or 40-hour workweek.       And Dr. Jamieson opined

that Shaw’s mental impairments caused no significant limitations

in her ability to interact socially, see id. at 348, so evidence

that Shaw can interact socially is in fact wholly consistent with

his opinion.

     The long and the short of it, then, is that there is not

substantial evidence to support any of the reasons the ALJ gave

for discounting Dr. Jamieson’s opinion, or most of the reasons

she gave for discounting Dr. Garber’s opinion.       There may well be

good reasons to discount those opinions (and the apparent lack of

objective support for Dr. Garber’s conclusions in his exam notes

may well be one).    “But it is not the task of this court to re-

weigh the record evidence and ‘articulate for the first time at

the appeals stage good reasons for rejecting a [medical] source’s

opinion.’”     Coppola v. Colvin, 

 (quoting

Bergeron v. Astrue, 

).        The case must be remanded



                                   8
to the SSA so the opinions of Drs. Garber, Kalfas, and Jamieson

can be evaluated in accordance with 

.          The

court, of course, expresses no opinion as to the proper result on

remand.2

      For the foregoing reasons, Shaw’s motion to reverse the

SSA’s decision3 is GRANTED, and the Commissioner’s motion to

affirm it4 is DENIED.        See 

(g).   The clerk shall

enter judgment accordingly and close the case.


      SO ORDERED.




                                    Joseph N. Laplante
                                    United States District Judge

Dated: March 11, 2015

cc:   Janine Gawryl, Esq.
      Robert J. Rabuck, Esq.




      2
     Shaw also advances a number of other arguments in favor of
reversing the ALJ’s decision. The court is skeptical of those
arguments, largely for the reasons the Commissioner identifies in
her memorandum of law, but it ultimately need not reach them
because the errors identified in the main body of this opinion
necessitate reversal and remand in and of themselves.
      3
          Document no. 11.
      4
          Document no. 16.

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