UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Douglas W. Brindley
v. Case No. 14-cv-548-PB
Opinion No. 2016 DNH 021
Carolyn W. Colvin,
Acting Commissioner,
U.S. Social Security
Administration
MEMORANDUM AND ORDER
Douglas Wayne Brindley is a fifty-three year old man with a
history of shoulder issues, polysubstance abuse, depression, and
anxiety. Brindley last worked, from 2004 until 2006, as a general
laborer. Here, Brindley challenges the Social Security
Administration’s denial of his claims for disability insurance
benefits (“DIB”) and supplemental Social Security income (“SSI”).
The Social Security Commissioner, in turn, seeks to have the ruling
affirmed.
I. BACKGROUND
In accordance with Local Rule 9.1, the parties have
submitted a joint statement of stipulated facts (Doc. No. 13).
See LR 9.1. Because that joint statement is part of the court’s
record, I need not recount it here. I discuss facts relevant to
the disposition of this matter as necessary below.
II. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), I have the authority to
review the pleadings submitted by the parties and the
administrative record, and to enter a judgment affirming,
modifying, or reversing the “final decision” of the
Commissioner. That review is limited, however, “to determining
whether the [Administrative Law Judge] used the proper legal
standards and found facts [based] upon the proper quantum of
evidence.” Ward v. Comm’r of Soc. Sec.,
211 F.3d 652, 655 (1st
Cir. 2000). I defer to the Administrative Law Judge’s (ALJ’s)
findings of fact, so long as those findings are supported by
substantial evidence.
Id. Substantial evidence exists “‘if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion.’”
Irlanda Ortiz v. Sec’y of Health & Human Servs.,
955 F.2d 765,
769 (1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of
Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981)).
If the substantial evidence standard is met, the ALJ’s
factual findings are conclusive, even where the record “arguably
could support a different conclusion.” Id. at 770. Findings
are not conclusive, however, if the ALJ derived his findings by
“ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st
Cir. 1999) (per curiam). The ALJ is responsible for determining
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issues of credibility and for drawing inferences from evidence
in the record. Irlanda Ortiz, 955 F.2d at 769. It is the role
of the ALJ, not the court, to resolve conflicts in the evidence.
Id.
III. ANALYSIS
Brindley applied for DIB and SSI in May 2011, alleging
disability as of November 2, 2006. Tr. at 147-61. After his
claims were initially denied in May 2011, a hearing was held
before an ALJ in September 2012. Tr. at 37-66 (hearing
transcript). Following that hearing, the ALJ issued a written
decision concluding that Brindley was not disabled. Tr. at 24-
33 (ALJ’s written decision).
In his decision, the ALJ evaluated Brindley’s claims under
the five-step sequential process described in 20 C.F.R. §§
404.1520(a)(4) and 416.920(a)(4). The ALJ found at step one
that Brindley had not engaged in substantial gainful activity
since November 9, 2009, the amended alleged onset date. Tr. at
26. At step two, the ALJ determined that Brindley had severe
impairments of status post left rotator cuff repair, right
shoulder impingement, polysubstance abuse, and depression with
anxiety. Tr. at 26. The ALJ then found at step three that
Brindley’s impairments did not meet or medically equal any of
the listed impairments, specifically considering listings 1.02,
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12.04, 12.06, and 12.09. Tr. at 27-28. Finally, relying
exclusively upon the Medical-Vocational Guidelines (the “Grid”),
the ALJ determined at step five that, despite his severe
exertional and non-exertional impairments, Brindley had the
residual functional capacity to perform work in the national
economy. Tr. at 32. The ALJ therefore concluded that Brindley
was not disabled. Tr. at 33.
In April 2014, the Appeals Council denied Brindley’s
request for review. Tr. at 14-16. As such, the ALJ’s decision
constitutes the Commission’s final decision, and this matter is
now ripe for judicial review.
Brindley argues that a remand is required for two principal
reasons: (1) the ALJ’s assessment of Brindley’s residual
functional capacity, or RFC, is not supported by substantial
evidence, and (2) the ALJ improperly relied upon the Grid at
step five to find that Brindley was capable of performing other
work in the national economy. For the reasons set forth below,
I conclude that the ALJ’s use of the Grid was inappropriate, and
that a remand is required.
At step five of the sequential process, “the burden shifts
to the Secretary to show the existence of other jobs in the
national economy that the claimant can perform” despite his
impairments. Guyton v. Apfel, 20 F. Supp. 2d 156, 162 (D. Mass.
1998) (quotations omitted). Where the claimant has only
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exertional limitations, the Commissioner can meet that burden by
relying on the Grid, a “matrix of the applicant's exertional
capacity, age, education, and work experience. If the facts of
the applicant's situation fit within the Grid's categories, the
Grid directs a conclusion as to whether the individual is or is
not disabled.” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir.
2001) (quotations omitted).
In cases like this one, however, where a claimant suffers
from both exertional and non-exertional limitations, the
Commissioner typically cannot rely solely upon the Grid, and
must instead use other means, usually a vocational expert, to
meet her burden. Ortiz v. Sec’y of Health & Human Servs., 890
F.2d 520, 524 (1st Cir. 1989). Nonetheless, the ALJ may use the
Grid
where [the ALJ] concludes that these nonexertional
impairments or limitations impose no significant
restriction on the range of work a claimant is exertionally
able to perform. Moreover, if a non-strength impairment,
even though considered significant, has the effect only of
reducing that occupational base marginally, the Grid
remains highly relevant and can be relied on exclusively to
yield a finding as to disability.
Guyton, 20 F. Supp. 2d at 163 (quotations and citations
omitted). Thus, where the record “amply supports the conclusion
that the claimant's nonexertional limitations do not interfere
with a full range of work, reliance on the Grid is appropriate.”
Egan v. Astrue,
2012 DNH 025, 23 (internal punctuation omitted).
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In making this determination, the ALJ must consider (1) whether
the claimant can perform close to the full range of unskilled
work, and (2) whether he can conform to the demands of a work
setting, regardless of the skill level involved. Ortiz, 890
F.2d at 526; Lonardo v. Astrue,
2011 DNH 192, 16. “An inability
to satisfy either inquiry precludes [exclusive] reliance on the
Grid.” Lonardo,
2011 DNH 192, 16.
Accordingly, in cases where a claimant suffers from both
exertional and non-exertional impairments, the ALJ essentially
has two acceptable options at step five. He may, and typically
should, call a vocational expert to testify. Or, he may
explain, based upon the inquiries set out in Ortiz, why relying
upon the Grid is appropriate. Here, the ALJ did neither. Tr.
at 32. Instead, the ALJ merely stated, without explanation or
citation to record evidence, that Brindley’s non-exertional
“limitations have little or no effect on the occupational base
of unskilled light work.” Tr. at 32.
Noting this lack of detail, Brindley argues that the ALJ
failed to provide an adequate basis for his reliance upon the
Grid. Doc. No. 11-1 at 15-17. The Commissioner responds that
the ALJ’s conclusion, in assessing Brindley’s RFC, that Brindley
had only moderate non-exertional limitations, was sufficient to
justify the ALJ’s use of the Grid. Doc. No. 12-1 at 12-15. To
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assess these arguments, I turn to the inquiries outlined in
Ortiz.
A. Ability to Perform Close to Full Range of Unskilled Work
According to Ortiz, an ALJ must first consider whether a
claimant is able to perform close to the full range of unskilled
work. Ortiz, 890 F.2d at 526. The Commissioner has described
the mental demands of unskilled work to include “the abilities
(on a sustained basis) to understand, carry out, and remember
simple instructions; to respond appropriately to supervision,
coworkers, and usual work situations; and to deal with changes
in a routine work setting.” Id.; see SSR 85-15,
1985 WL 56857.
Here, record evidence raises doubts regarding Brindley’s ability
to meet those demands.
That evidence first includes Brindley’s treatment records
from the Manchester Mental Health Center. In February 2011,
Brindley underwent an intake evaluation at the Manchester Mental
Health Center, and was diagnosed with depressive disorder,
alcohol and cocaine dependence, and personality disorder with
antisocial traits. Tr. at 228. Brindley’s Global Assessment
Functioning (“GAF”) score upon intake was 45.1 Tr. at 228. When
1
A GAF score between 41 and 50 indicates “[s]erious symptoms
(e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) [or] any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to
keep a job).” Doc. No. 13 at 3 n.3.
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the Manchester Health Center closed Brindley’s case in April
2011 (because he did not attend sessions following his intake
evaluation) his GAF score was again reported as 45. Tr. at 227.
Brindley returned to Manchester Mental Health in July 2011,
when his symptoms included physical and verbal aggression,
agoraphobia, angry outbursts, anxiety, poor concentration,
depressed mood, irritability, and isolation. Tr. at 272. Dr.
Almos Nagy from the Manchester Mental Health Center continued to
monitor, and adjust, Brindley’s medication from July 2011 until
March 2012, but again closed Brindley’s case in May 2012. Tr.
at 269, 354. Upon closing Brindley’s case, Dr. Nagy noted that
Brindley’s goals to decrease his anger and depression were not
met, and that Brindley’s GAF score at discharge was 37.2 Tr. at
269.
That evidence also includes consultative psychological
examiner Juliana Read’s July 2011 medical opinion. Dr. Read
opined that Brindley (1) was capable of attending to his
activities of daily living, but struggled to complete those
tasks due to anxiety and depression, (2) could interact
2 A GAF score of 31-40 indicates “[s]ome impairment in reality
testing or communication (e.g., speech is at times illogical,
obscure, or irrelevant) [or] major impairment in several areas,
such as work or school, family relations, judgment, thinking, or
mood (e.g., depressed man avoids friends, neglects family, and
is unable to work; child frequently beats up younger children,
is defiant at home, and is failing at school).” Doc. No. 13 at
8 n.4.
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appropriately and communicate effectively with others, (3) was
able to understand and remember material, but struggled to do so
at times due to depression and anxiety, (4) could maintain
attention, but could not consistently hold concentration due to
anxiety and mood, and (5) “presently [was] not capable of
maintaining a schedule due to high anxiety and depression.” Tr.
at 249-50.
The record further contains state agency reviewing
psychologist Laura Landerman’s July 2011 opinion. According to
Dr. Landerman, Brindley had no limitations with social
interaction, and was not significantly limited in his ability to
carry out very short and simple instructions, to sustain an
ordinary routine without special supervision, to work in
coordination or proximity to others without being distracted by
them, or to make simple work-related decisions. Tr. at 74, 85.
Dr. Landerman further stated, however, that Brindley was
moderately limited in his ability to carry out detailed
instructions, maintain attention and concentration for extended
periods, to perform activities within a schedule, maintain
regular attendance, be punctual within customary tolerances, and
to complete a normal workday and workweek without interruptions
from psychologically based symptoms. Tr. at 74, 85.
Finally, the record contains treatment notes from
Brindley’s July 2012 sessions with therapist Sandra Volkman.
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During those sessions, Brindley complained of anti-social
tendencies, worried about his temper, described getting into
fights outside of the homeless shelter where he was living, and
feared he could “kill someone in a blackout state.” Doc. No. 13
at 8-9 (citing Tr. at 262-65). Brindley’s symptoms at that time
included aggressive behavior, angry outbursts, anxiety,
attention problems, depressed mood, memory problems, paranoid
thoughts, and social impairment. Id. And, although Brindley’s
mental status examination was within normal limits, he was
diagnosed with major depressive disorder. Id. at 9. Brindley
continued to see Ms. Volkman on a bi-weekly basis through the
date of his hearing before the ALJ. See Tr. at 44.
The evidence thus calls into question Brindley’s ability to
meet the mental demands – understanding and executing simple
instructions; responding appropriately to supervision,
coworkers, and usual work situations; and dealing with changes
in a routine work setting - of unskilled work. Yet, in deciding
to rely upon the Grid, the ALJ did not mention, let alone
analyze, this evidence. Tr. at 32. Instead, the ALJ merely
stated that Brindley’s non-exertional impairments “have little
or no effect on the occupational basis of unskilled light work.”
Tr. at 32. That statement, without more, was insufficient. See
Lonardo, 2011 DNH 192, 18.
10
Nonetheless, citing Falcon-Cartagena v. Commissioner of
Social Security, 21 F. App’x 11 (1st Cir. 2001) and Hines v.
Astrue,
2012 DNH 121, the Commissioner argues that the ALJ
properly concluded that Brindley’s mental impairments did not
prevent him from performing close to the full range of unskilled
work. Doc. No. 12-1 at 14. More specifically, the Commissioner
asserts that, because the ALJ’s RFC assessment indicated that
Brindley was only moderately limited with respect to the demands
of unskilled work, there was adequate support for the ALJ’s
finding that Brindley’s mental impairments did not significantly
affect his occupational base. Id.; see Hines,
2012 DNH 121, 31
(“The First Circuit has recognized that moderate mental
limitations impose no significant restriction on the range of
work a claimant can perform.”). Under the facts of this case,
however, where the ALJ’s decision did not address several pieces
of relevant evidence, I disagree.
An “ALJ’s written decision need not directly address every
piece of evidence in the administrative record” if that evidence
is cumulative of materials that the ALJ does address, or does
not support the claimant's position. Lord v. Apfel, 114 F.
Supp. 2d 3, 13 (D.N.H. 2000). At the same time, though, “an ALJ
may not simply ignore relevant evidence, especially when that
evidence supports a claimant's cause.”
Id. (collecting cases).
An ALJ therefore may not adopt one view of the evidence,
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“without addressing the underlying conflict.” Dube v. Astrue,
2011 DNH 031, 16. “Moreover, a court must be able to determine
whether the ALJ considered the contrary evidence and chose to
discredit it, or whether it was simply ignored.”
Id. (citation
and punctuation omitted). Thus, “[f]or a reviewing court to be
satisfied that an ALJ's decision was supported by substantial
evidence, that decision must take into account whatever in the
record fairly detracts from its weight.” Lord,
114 F. Supp. 2d
at 14 (quotations omitted).
In assessing Brindley’s RFC, the ALJ gave great weight to
Dr. Landerman’s opinion, and gave partial weight to Dr. Read’s
opinion. Tr. at 31. The ALJ also made passing reference to
Brindley’s treatment at the Manchester Mental Health Center,
noting that “[w]hile July 2011 treatment notes indicate a [GAF
score] of 37, such assessment is out of proportion with
objective medical findings and the claimant’s demonstrated
ability to achieve his activities of daily living.” Tr. at 31.
The ALJ did not address, however, Brindley’s GAF scores of 45 in
February and April 2011 – scores that indicate that Brindley
suffered from “serious” impairments during that time. Tr. at
227, 228. Likewise, in calculating Brindley’s RFC, the ALJ did
not comment on the records from Brindley’s July 2012 treatment
with therapist Sandra Volkman. Those treatment notes, which Dr.
Landerman did not consider during her July 2011 medical review,
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indicate that Brindley continued to complain of aggressive
behavior, angry outbursts, anxiety, and attention problems long
after his treatment at the Manchester Mental Health Center
ended. See Doc. No. 13 at 8-9.
Because the ALJ did not confront evidence that cast doubt
regarding Brindley’s mental RFC, and in light of the ALJ’s
cursory treatment of Brindley’s Manchester Mental Health Center
records, the ALJ’s decision does not “address[] the underlying
conflict” regarding Brindley’s non-exertional limitations.
Dube, 2011 DNH 031, 16. Based upon the limited analysis that
the ALJ did provide, then, I am unable “to determine whether the
ALJ considered the contrary evidence and chose to discredit it,
or whether it was simply ignored.”
Id. (citation and
punctuation omitted). I therefore decline to apply the
reasoning set out in Hines to the facts of this case.3
3
Because the ALJ did not address relevant evidence, I need not
consider Brindley’s further argument that the ALJ erred in
weighing the relevant medical opinions. Doc. No. 11-1 at 8-10.
I note, however, that an ALJ considers a number of factors when
weighing a medical opinion, including the relationship between
the claimant and the source of the opinion, and the opinion’s
supportability.
20 C.F.R. § 404.1527(c). Accordingly, an ALJ
generally will “give more weight to the opinion of a source who
has examined [the claimant] than to the opinion of a source who
has not . . . .”
Id. § 404.1527(c)(1). Moreover, “because
nonexamining sources have no examining or treating relationship
with [the claimant], the weight [the ALJ] will give their
opinions will depend on the degree to which they provide
supporting explanations for their opinions.” Id. §
404.1527(c)(3). The ALJ should address these and other relevant
factors in weighing opinion evidence on remand.
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B. Ability to Cope with Demands of Any Work Environment
The second prong of the Ortiz inquiry requires the ALJ to
consider whether a claimant can cope with the demands of any
work environment. “Conforming to the demands of a work setting
involves ‘getting to work regularly . . . and remaining in the
workplace for a full day.” Hines, 2012 DNH 121, 31 (citing SSR
85-15). Here, the ALJ’s decision contains no analysis on this
point.
Nonetheless, again citing Hines, the Commissioner argues
that the ALJ’s RFC assessment provides an adequate basis to
conclude that Brindley was only moderately limited with respect
to the demands of any work environment. Doc. No. 12-1 at 14-15.
I reject this argument for the same reasons provided above –
namely, because the ALJ’s residual functional assessment
analysis did not account for relevant evidence. And, more
fundamentally, I note that a reviewing court “cannot uphold the
ALJ’s decision based on rationales unarticulated in the record.”
Laplume v. Astrue, 2009 DNH 112, 17 n.20. Thus, the ALJ’s
refusal to provide any reasoned inquiry regarding Brindley’s
ability to cope with a work setting warrants remand. See
Lonardo,
2011 DNH 192, 18.
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In sum, I reverse the ALJ’s decision because he did not
adequately explain why, in light of Brindley’s non-exertional
impairments, reliance upon the Grid was appropriate. The First
Circuit has cautioned that “an ALJ typically should err on the
side of taking vocational evidence when a [non-exertional]
limitation is present in order to avoid needless agency
rehearings.” Ortiz, 890 F.2d at 528. Here, the ALJ neither
heeded the First Circuit’s warning nor supplied a sufficient
justification for his use of the Grid. A remand is therefore
required.
IV. CONCLUSION
For the foregoing reasons, Brindley’s motion to reverse the
decision of the Commissioner (Doc. No. 11) is granted. The
Commissioner’s motion to affirm (Doc. No. 12) is denied.
Pursuant to the fourth sentence of 42 U.S.C. § 405(g), I remand
the case to the Social Security Administration for further
proceedings consistent with this decision.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
January 29, 2016
cc: Counsel of Record
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