Morse v. SSA

                     UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW HAMPSHIRE



Charles Morse, Jr.

   v.                                       Civil No. 14-cv-18-LM
                                            Opinion No. 

Carolyn Colvin, Acting
Commissioner, Social
Security Administration



                              O R D E R

    Pursuant to 

(g), Charles Morse 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.


                          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)).


                            Background

    The parties have submitted a Joint Statement of Material

Facts (document no. 19).   That statement is part of the court’s

record and will be summarized here, rather than repeated in

full.

    Over the years, Morse has received extensive medical

treatment, resulting in diagnoses of both physical and mental

conditions.   Physically, he has been diagnosed with, among other

things, degenerative disc disease of the lumbar spine,




                                  3
uncontrolled diabetes mellitus, and “[s]evere complex sleep

disordered breathing [i.e., sleep apnea] in the setting of

morbid obesity,” Administrative Transcript (“Tr.”) 651.

Mentally, he has been diagnosed with major depression and panic

disorder.   In a disability report completed in conjunction with

his application for social security benefits, Morse identified

his impairments as: “Bipolar [disorder], mental health issues,

[posttraumatic stress disorder], low back pain, breathing

problems, obesity, [gastroesophageal reflux disease], gout,

sleep apnea, diabetes, learning disability, memory loss,

herniated disc, and degenerative disc [disease].”   Tr. 378.

    With regard to the interplay between Morse’s various

conditions, the record includes the diagnosis quoted above,

which links Morse’s obesity with his sleep apnea.   In addition,

Dr. Lawrence Jasper, a consulting psychologist, wrote a

“Comprehensive Psych Profile – Adult” that includes the

following relevant passage:

    He reports that he will go to bed at 8:00 or 9:00 p.m.

    . . . .

    Asked about the reasons [why] he cannot get to sleep
    until 3:00 in the morning even though he goes to bed
    at 8:00 or 9:00 he reports that he is awake because
    “I’m afraid to go to sleep because I’m afraid I’m
    going to stop breathing in my sleep.” Despite this
    report of a high degree of fear he reports that he



                                 4
     will not wear a face mask designed to alleviate sleep
     apnea because it dries up his mouth excessively.

Tr. 791.1

     Morse applied for DIB and SSI in May 2009.       His claim

worked its way through the administrative process, which

concluded with an unfavorable decision from an administrative

law judge (“ALJ”).   See Tr. 99-107.

     Thereafter, the Decision Review Board (“DRB”) remanded

Morse’s claim to the ALJ with a set of instructions including

the following: “Further evaluate the nature and severity of all

of the claimant’s impairments at step 2 of the sequential

evaluation process and beyond.”2       Tr. 116 (emphasis added).

     On remand, the ALJ conducted a second hearing.       After that

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 lumbar spine, obesity
     and diabetes mellitus, uncontrolled (20 CFR
     404.1520(c) and 416.920(c)).

     . . . .



     1 At his hearing, Morse testified that he was then using a
breathing machine at night, but also testified that it did not
help him much with respect to sleepiness during the day. See
Tr. 44.

     2 The sequential evaluation process to which the DRB remand
order refers is described in the section that follows.


                                   5
     4. The claimant does not have an impairment or
     combination 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,
     I find that the claimant has the residual functional
     capacity to perform sedentary work as defined in 20
     CFR 404.1567(a) and 416.967(a) except he can lift ten
     pounds frequently and can stand or walk for two hours
     in an eight-hour workday and sit for six hours in an
     eight-hour workday. The claimant has unlimited use of
     the feet and hands to operate controls and to push and
     pull. He requires the opportunity to change positions
     as need[ed] to alleviate discomfort and pain, which
     may include brief standing or walking. He can
     occasionally, balance, stoop, kneel[,] crouch, crawl
     and climb ramps and stairs, but must never climb
     ladders, ropes and scaffolds. He must avoid exposure
     to extreme temperatures, vibrations and hazards. He
     should avoid concentrated exposure to humidity and
     respiratory irritants.

Tr. 21, 24.    Based upon his assessment of Morse’s residual

functional capacity,3 and in reliance upon testimony from a

vocational expert [“VE”] at Morse’s first hearing,4 the ALJ




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

(a)(1) & 416.945(a)(1).

     4  Given the analysis and disposition that follows, the
court need not address the matter of the ALJ’s reliance upon VE
testimony from Morse’s first hearing when issuing a decision
after his second hearing.



                                  6
determined that Morse was able to perform the job of charge-

account clerk.5

                              Discussion

     According to Morse, the ALJ’s decision should be reversed,

and the case remanded, because the ALJ did not: (1) properly

consider his major depressive disorder, panic disorder, and

sleep apnea; (2) properly weigh the expert opinions in the

record; or (3) carry his burden of establishing that there are

jobs that exist in significant numbers in the national economy

that Morse can perform despite his impairments.     Morse’s first

argument is persuasive and dispositive.


     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

case is whether Morse was under a disability.


     5 That job was the only job the VE was able to identify that
could be performed by a person with the RFC included in the
ALJ’s hypothetical question to the VE. See Tr. 89.


                                  7
    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
    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) and 416.920 (SSI).

    The steps are: 1) if the [claimant] is engaged in
    substantial gainful work activity, the application is


                                 8
    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)).




                                9
       B. Morse’s Argument

       Morse makes a series of interconnected arguments concerning

the manner in which the ALJ handled three of his impairments,

i.e., major depressive disorder, panic disorder, and sleep

apnea.   Specifically, he argues that the ALJ erred at step two

of the sequential evaluation process by finding that none of

those three impairments was severe, and also erred at the RFC

stage by: (1) failing to expressly mention any of those

impairments in his RFC discussion; (2) failing to consider the

combined effects of all of his impairments; (3) failing to

evaluate the credibility of statements he made about the effects

of his mental impairments and his sleep apnea; and (4)

fashioning an RFC that does not include any mental limitations

flowing from his mental impairments and his sleep apnea.     Morse

is entitled to a remand because the ALJ did not adequately

consider the combined effects of all of Morse’s impairments.

       Morse frames his argument on that point in the following

way:

       Morse has co-occurring physical and mental impairments
       with overlapping symptoms which affect mental work
       abilities. Morse’s uncontrolled diabetes, morbid
       obesity, severe sleep apnea, depression and anxiety
       are co-existing conditions in his case. These co-existing impairments affect mental work abilities, and
       when combined, the limiting effects are greater than
       when considered individually.



                                 10
Clm’t’s Mem. of Law (doc. no. 14-1) 11 (emphasis in the

original).   Based upon that argument, Morse goes on to describe

the manner in which his physical impairments, i.e., diabetes,

obesity, and sleep apnea can affect the mental functioning of a

person suffering from them.

    Morse’s argument is based upon the following provision

drawn from the relevant regulations:

         In determining whether your physical or mental
    impairment or impairments are of a sufficient medical
    severity that such impairment or impairments could be
    the basis of eligibility under the law, we will
    consider the combined effect of all of your
    impairments without regard to whether any such
    impairment, if considered separately, would be of
    sufficient severity. If we do find a medically severe
    combination of impairments, the combined impact of the
    impairments will be considered throughout the
    disability determination process.

 & 416.923; see also 

(d)(2)(B).   Morse, however, identifies no case law explaining

how, precisely, an ALJ is supposed to demonstrate his or her

compliance with that provision.    Neither does the Acting

Commissioner identify such a standard.   Rather, she relies upon

the principles articulated in Coppola v. Colvin, that an ALJ:

(1) need not “expressly address each of a claimant’s diagnoses,”

No. 12-cv-492-JL, 

, at *2 (D.N.H. Feb. 21, 2014)

(emphasis in the original); and (2) is only required “to

consider ‘the limiting effects of all of the claimant’s


                                  11
impairments,’ both severe and non-severe,” 

 (citation

omitted, emphasis added by Coppola).

     The court of appeals for this circuit has yet to set a

standard for how an ALJ is to carry out his or her

responsibilities under 

 & 416.923.

However, a panel of the Fifth Circuit has recently explained

that “an ALJ must ‘adequately explain his or her evaluation of

the combined effects of [a claimant’s] impairments.’”     Tanner v.

Comm’r of Soc. Sec., --- F. App’x ---, ---, No. 14-1271, 

, at *4 (4th Cir. Feb. 12, 2015) (per curiam) (emphasis

added) (quoting Reid v. Comm’r of Soc. Sec., 

(4th Cir. 2014); citing Walker v. Bowen, 

 (4th

Cir. 1989)).

     According to the Tanner court, the ALJ in that case

provided an adequate explanation by: (1) describing the

claimant’s non-severe impairments; (2) stating “that her obesity

‘combined with her musculoskeletal impairments does not result

in impairments that meet or equal listing severity,”6 

 at *4

(quoting the record, emphasis omitted); (3) described the

claimant’s severe impairments; and (4) “concluded that, ‘[t]he



     6 It is not clear from the opinion whether the claimant’s
obesity or her musculoskeletal impairments were severe or non-severe impairments.


                               12
claimant does not have an impairment or combination of

impairments that meets or medically equals the severity of one

of the listed impairments,’” 

    In other words, the Tanner

court appears to have held that it was sufficient for the ALJ

merely to proclaim that the claimant did not have a combination

of impairments that met or equaled the severity of a listed

impairment without describing the analysis that led him to that

conclusion.

    In Tuggerson-Brown v. Commissioner of Social Security, a

panel of the Eleventh Circuit provided the following analysis of

a claim that an ALJ failed to consider all of the claimant’s

impairments in combination:

         While the ALJ did not need to determine whether
    every alleged impairment was “severe,” he was required
    to consider all impairments, regardless of severity,
    in conjunction with one another in performing the
    latter steps of the sequential evaluation. Despite
    Tuggerson–Brown’s arguments to the contrary, it is
    apparent from the face of the ALJ’s decision and the
    RFC report relied upon by the ALJ that the ALJ did, in
    fact, consider all medical evidence in combination in
    concluding that Tuggerson–Brown was not disabled. In
    performing his analysis, the ALJ stated that he
    evaluated whether Tuggerson–Brown had an “impairment
    or combination of impairments” that met a listing and
    that he considered “all symptoms” in determining her
    RFC. Under our precedent, those statements are enough
    to demonstrate that the ALJ considered all necessary
    evidence. See Wilson [v. Barnhart], 284 F.3d [1219,]
    1224–25 [(11th Cir. 2002)].

 (11th Cir. 2014).



                               13
    Under the ALJ-friendly standard set out in Tanner and

Tuggerson-Brown, the decision by the ALJ in this case might

possibly be sufficient to satisfy the requirement imposed by 

 & 416.923.   In the section of his decision in

which he outlined the relevant law, the ALJ acknowledged that

when assessing Morse’s RFC, he was obligated to “consider all of

the claimant’s impairments, including impairments that are not

severe.” Tr. 20.   At step three, the ALJ found that Morse did

“not have an impairment or combination of impairments that [met]

or medically equal[ed] the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1,” Tr. 24.

However, in the discussion that followed that finding, the ALJ

mentioned only Morse’s three severe impairments.   See Tr. 24.

At the end of his discussion of Morse’s RFC, the ALJ wrote:

    Notably, claimant’s obesity has been considered in
    conjunction with the claimant’s other severe
    impairments in assessing the claimant’s residual
    functional capacity. I find that the records do not
    indicate that his obesity limits his ability to
    function further than the exertional capacity noted
    above.

    Based upon the totality of the evidence, I find the
    claimant’s impairments, in combination, comport with
    the residual functional capacity [stated] above.

Tr. 27.   However, those conclusions follow a discussion in which

the ALJ did not even mention Morse’s non-severe impairments, and

in the first of the two paragraphs quoted above, the ALJ


                                14
considered a combination that consisted only of Morse’s three

severe impairments.

     Beyond that, the ALJ evaluated several expert opinions that

mentioned Morse’s non-severe impairments, which could be taken

to show that the ALJ did consider those impairments in

combination with Morse’s other impairments.   See Tuggerson-

Brown, 

.   Specifically, the ALJ evaluated:

(1) Dr. Hugh Fairley’s “Physical Residual Functional Capacity

Assessment,” in which he acknowledged Morse’s allegations that

he suffered from bipolar disorder, posttraumatic stress

disorder, obesity, sleep apnea, and diabetes, see Tr. 26, 841;

(2) Dr. Riccio’s “Physician/Clinician Statement of

Capabilities,” in which he acknowledged Morse’s diagnoses of

morbid obesity, moderate-severe back pain, lumbar disc disease,

diabetes, and depression, see Tr. 26-27, 904; (3) Dr. Lawrence

Jasper’s “Comprehensive Psych Profile – Adult,” in which he

acknowledged Morse’s diagnoses of dysthymic disorder7 and

probable generalized anxiety disorder and his reports of

obesity, hypertension, high cholesterol, gastroesophageal reflux

disease, type II diabetes and sleep apnea, see Tr. 23, 788, 793;



     7 Dysthymia is “[a] chronic mood disorder manifested by
depression for most of the day, more days than not . . . .”
Stedman’s Medical Dictionary 602 (28th ed. 2006).


                                15
and (4) Dr. Dennis Becotte’s “Comprehensive Psych Profile –

Adult,” in which he acknowledged Morse’s diagnoses of depressive

disorder, herniated discs, degenerative disc disease, diabetes,

high blood pressure, and asthma, see Tr. 23, 831.   While these

expert opinions identified co-occurring impairments, none of

them includes any analysis or discussion of the limiting effects

of those impairments in combination with each other.

    Turning from the law of the Fifth and Eleventh Circuits to

law developed in this circuit, several decisions from judges in

this district appear to employ a standard for applying §§

404.1523 & 416.923 that is more faithful to the “adequate-

explanation” requirement stated in Tanner than the standard

actually used in Tanner and Tuggerson-Brown.   For example, in

Forni v. Barnhart, Judge Barbadoro reversed the ALJ’s decision

and remanded “for consideration of whether, in light of Forni’s

combined mental and physical impairments, his RFC would allow

him to perform jobs that exist in significant numbers in the

economy,” No. 05-cv-406-PB, 

, at *9 (D.N.H. Oct.

17, 2006).   Judge Barbadoro explained his ruling that the ALJ

failed to consider the combined effect of all the claimant’s

impairments this way:

    [I]n assessing a claimant’s ability to work, the ALJ
    should not disregard individual, non-severe



                                16
    impairments where the claimant’s collective
    impairments are severe.

         Here, the ALJ did just that. Upon reviewing each
    impairment individually, he determined that Forni’s
    mental impairment was not severe but that his asthma
    and carpal tunnel syndrome were severe. He then
    completely (and improperly) dropped Forni’s depression
    from his analysis, thereafter analysing only the
    effects of asthma and carpal tunnel on Forni’s RFC.
    See Loza v. Apfel, 

, 392–93 (5th Cir.
    2000) (remanding for reconsideration where ALJ erred
    by only evaluating consequences of claimant’s mental
    and physical impairments individually and by not
    considering their combined effects); Dunn v. Apfel,
    No. 98–591–B, 

, at *8 (D.N.H. Dec. 10,
    1999) (finding improper analysis at severity stage may
    have caused failure to properly consider the total
    limiting effects of claimant’s mental and physical
    impairments when determining her RFC); MacLean v.
    Sec’y of Health & Human Servs., No. 93–384–SD, 

, at *2 (D.N.H. July 7, 1994) (remanding in part
    to determine whether claimant had more than one
    impairment, and if so, to consider combination of all
    impairments at each step of disability evaluation
    process); Edmond v. Sec’y of Health & Human Servs.,
    No. 88–360–D, 

, at *5 (D.N.H. Mar. 15,
    1989) (“ALJ failed to properly consider whether the
    combination of plaintiff’s impairments rendered him
    disabled”).

         Because [t]he ALJ failed to analyse Forni’s
    impairments in combination throughout the sequential
    analysis, I find that his decision was not supported
    by substantial evidence.

Forni, 

, at *8-9; see also Stephenson v. Halter,

No. CIV. 00-391-M, 

, at *2 (D.N.H. Aug. 20, 2001)

(ruling that ALJ does not meet requirement of 

merely by finding that impairment is not severe either alone or

in combination with other impairments, but must actually address


                               17
non-severe impairment when assessing RFC).   Under the standard

employed in Forni and Stephenson, the decision by the ALJ in

this case falls short of satisfying the requirement imposed by

 & 416.923.

    Like the ALJ in Forni, the ALJ in this case discussed

Morse’s impairments individually at step two, but did not

discuss them in combination.   Then, at step three, the ALJ

explained how none of Morse’s three severe impairments

individually met or equaled the severity of a listed impairment,

but did not address the combination of those three impairments

or even mention Morse’s non-severe impairments.   And, like the

ALJ in Forni, the ALJ in this case said nothing at all about

Morse’s non-severe impairments in his discussion of Morse’s RFC.

In sum, the most that can be said about the ALJ’s consideration

of Morse’s impairments in combination is that he explained why

Morse’s severe impairment of obesity did not result in any

limitations beyond those resulting from his severe impairments

of degenerative disc disease and diabetes.   Moreover, while the

ALJ’s RFC assessment includes an assessment of the credibility

of Morse’s statements about the symptoms of his severe

impairments, that discussion does not mention Morse’s statements

about: (1) symptoms resulting from sleep apnea such as daytime

sleepiness, see Tr. 44; (2) symptoms resulting from depression,


                                18
such as loss of concentration, see Tr. 50; or (3) symptoms

resulting from panic disorder, see Tr. 51-52.

    Finally, the ALJ’s discussion of the weight he assigned to

expert opinions, which concludes his RFC assessment, refers only

to the opinions concerning Morse’s physical condition.    The ALJ

weighed the opinions of the mental-health experts earlier in the

opinion, in conjunction with his determination that Morse’s

mental impairments were not severe.   That, in turn, supports an

inference that the ALJ believed that opinions on Morse’s non-

severe mental impairments were irrelevant to his analysis beyond

step two.   This inference is strengthened by the ALJ’s failure

to mention those impairments in either his discussion of step

three or his RFC assessment.

    Based upon the foregoing, it is difficult to escape the

conclusion that the ALJ in this case, like the ALJ in Forni,

completely dropped Morse’s non-severe impairment from his

analysis at step two.   Thus, the only question that remains is

whether this court should adopt the standard Judge Barbadoro

applied in Forni or adopt the standard from Tanner and

Tuggerson-Brown.   Judge Barbadoro’s is the better approach.

    In Browning v. Colvin, Judge Posner referred to a phrase

from the ALJ’s credibility assessment as “a pernicious bit of

boilerplate to which the Social Security Administration


                                19
nevertheless clings,” 

 (7th Cir. 2014) (citing

Goins v. Colvin, 

 (7th Cir. 2014)).    While the

issue here is not the ALJ’s credibility assessment, the court is

concerned that by adopting the standard from Tanner and

Tuggerson-Brown, an ALJ could meet his or her responsibility

under 

 & 416.923 by doing nothing more than

reciting boilerplate assertions that he or she considered a

claimant’s impairments in combination without describing any

actual analysis.    As a practical matter, if the court were to

apply Tanner and Tuggerson-Brown, the ALJ would be allowed to

meet his responsibility under §§ 404.1523 & 416.923 by providing

less analysis on the rather complex issue of impairments in

combination than he provided when explaining his determinations

that several of Morse’s impairments, individually, were not

severe.   Judge Barbadoro’s standard avoids that counter-

intuitive result.

    In addition, while Tanner appears to apply a very relaxed

definition of “adequate explanation,” which allows conclusory

statements to stand in for analysis, one of the cases the Tanner

court cited in its opinion describes the adequate-explanation

requirement in terms that are similar to the rule Judge

Barbadoro applied in Forni:




                                 20
    The ALJ found that although claimant suffered from
    numerous ailments, he did not have an impairment or
    combination of impairments listed in, or medically
    equal to, one listed in Appendix 1, Subpart P, Reg.
    No. 4. This finding in itself, however, is not
    sufficient to foreclose disability. Congress
    explicitly requires that “the combined effect of all
    the individual’s impairments” be considered, “without
    regard to whether any such impairment if considered
    separately” would be sufficiently severe, 

(d)(2)(c), Hines v. Bowen, 

 (4th
    Cir. 1989). Therefore, a failure to establish
    disability under the listings by reference to a
    single, separate impairment does not prevent a
    disability award.

         After finding that claimant failed to meet a
    listing, the ALJ went on to discuss each of claimant’s
    impairments but failed to analyze the cumulative
    effect the impairments had on the claimant’s ability
    to work. . . . It is axiomatic that disability may
    result from a number of impairments which, taken
    separately, might not be disabling, but whose total
    effect, taken together, is to render claimant unable
    to engage in substantial gainful activity. In
    recognizing this principle, this Court has on numerous
    occasions held that in evaluating the effect[s] of
    various impairments upon a disability benefit
    claimant, the Secretary must consider the combined
    effect of a claimant’s impairments and not fragmentize
    them. . . .

         As a corollary to this rule, the ALJ must
    adequately explain his or her evaluation of the
    combined effects of the impairments.

Walker, 

 (4th Cir. 1989) (emphasis added).

Plainly, according to the Walker court, adequate explanation

consists of analysis, not just conclusory findings.   Walker, in

turn, cites Reichenbach v. Heckler, which remanded a case

because the ALJ “failed to provide adequate explanation to show


                               21
that he had considered the combined effect of the impairments so

as to allow proper judicial review,” 

 (4th Cir.

1985) (emphasis added).   It is difficult to see how the mere

recitation of boilerplate phrases, which is acceptable under

Tanner, allows proper judicial review.    In sum, as between the

approaches employed in Tanner and Forni, Judge Barbadoro’s is

the better one, and this court adopts it.

    Because the ALJ’s discussion of Morse’s impairments in

combination falls short of the standard articulated in Forni,

the ALJ’s decision is not supported by substantial evidence.

See 

, at *9.   Consequently, this case must be

remanded, see 

 for a further evaluation of all of Morse’s

impairments, in combination, at step two of the sequential

evaluation process, and beyond.

    While the court need say no more, it offers the following

observation, which may be useful on remand.   As the court has

already noted, Morse argues that the ALJ erred at the RFC stage

by failing to evaluate the credibility of statements he made

about the effects of three of his non-severe impairments:

depression, anxiety, and sleep apnea.    The Acting Commissioner

does not appear to address that argument directly.   But, in her

argument that the ALJ properly considered the combined effects

of Morse’s impairments, she states that “[t]he ALJ recognized


                                  22
that Plaintiff alleged that his impairments resulted in fatigue,

dizziness, and an inability to complete tasks, beyond the

physically limiting effects of the conditions.”   Resp’t’s Mem.

of Law (doc. no. 16-1) 12.   In support of that argument, the

Acting Commissioner cites the following passage from the ALJ’s

decision:

    He states his obesity results in fatigue. The
    claimant testifies that his blood sugars fluctuate,
    which causes him to get dizzy and use the bathroom
    frequently. The claimant alleges that his impairments
    inhibit his ability to complete tasks such that he is
    disabled.

Tr. 25 (citations to the record omitted).   Because the symptoms

of fatigue and dizziness are clearly linked to two of Morse’s

severe impairments, and the symptom related to task completion

is not linked to any particular impairment, those statements in

the ALJ’s decision do not demonstrate that he considered any of

the symptoms that Morse attributed to his non-severe

impairments, such as sleepiness resulting from sleep apnea, see

Tr. 44, loss of concentration resulting from depression, see Tr.

50, and various symptoms resulting from panic disorder, see Tr.

51-52.   Accordingly, on remand, the ALJ should consider the full

range of Morse’s symptoms, not just those that are linked to his

severe impairments.




                                23
                            Conclusion

      For the reasons detailed above, the Acting Commissioner’s

motion for an order affirming her decision, document no. 16, is

denied, and Morse’s motion to reverse the decision of the Acting

Commissioner, document no. 14, 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


March 17, 2015

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




                                  24