UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Beth Ann Grenier
v. Case No. 16-cv-210-JL
Opinion No. 2017 DNH 163
Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Beth Grenier moves to
reverse the Acting Commissioner’s decision to deny her
applications for Social Security disability insurance benefits,
or DIB, under Title II of the Social Security Act,
42 U.S.C. §
423, and for supplemental security income, or SSI, under Title
XVI,
42 U.S.C. § 1382. The Acting Commissioner, in turn, moves
for an order affirming her decision. For the reasons that
follow, the Acting Commissioner’s decision, as announced by the
Administrative Law Judge (“ALJ”) is reversed, and the Acting
Commissioner is directed to approve Grenier’s applications for
DIB and SSI.
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
. . . .
42 U.S.C. § 405(g) (setting out the standard of review for DIB
decisions); see also
42 U.S.C. § 1383(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,
76 F.3d 15, 16 (1st Cir. 1996) (per
curiam) (quoting Sullivan v. Hudson,
490 U.S. 877, 885 (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, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (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,
612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402
2
U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the
[Acting Commissioner] to determine issues of credibility and to
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,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (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,
842 F.2d 529,
535 (1st Cir. 1988) (per curiam). 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,
955 F.2d at 769 (quoting
Rodriguez v. Sec’y of HHS,
647 F.2d 218, 222 (1st Cir. 1981)).
II. Background
The parties have submitted a Joint Statement of Material
Facts. That statement, document no. 10, is part of the court’s
record and will be summarized here, rather than repeated in
full.
On three occasions, Grenier has been found eligible for
state-supported mental-health services by New Hampshire’s
Medicaid program. As a result, she has received treatment for
3
depression, posttraumatic stress disorder (“PTSD”), panic
disorder, and borderline personality disorder. Each time that
Grenier was determined eligible for mental-health services, the
determination was supported by a form (“DOE form”) that was
prepared by a social worker who provided her with mental-health
treatment and was co-signed by a treating psychiatrist. In each
of her DOE forms, Grenier was assessed to have moderate
limitations in each of four functional abilities: (1) activities
of daily living; (2) interpersonal functioning; (3) adaptation
to change; and (4) concentration, task performance, and pace.
See Administrative Transcript (hereinafter “Tr.”) 306-06
(October 18, 2011), 513-14 (July 19, 2012), 943 (July 6, 2014).
According to the rating system employed by the Medicaid program,
a person with “moderate limitations” requires help, assistance,
intervention, and/or prompting to perform adequately in each of
the four functional areas addressed by the form. See Tr. 516-
19.
In January of 2013, Grenier was awarded Aid to the
Permanently and Totally Disabled by the New Hampshire Medicaid
program, based upon her mental impairments (PTSD, depression,
and panic attacks). That award was supported by a Psychiatric
Evaluation prepared by Dr. Michael Schneider which also employed
the Medicaid rating system. Dr. Schneider opined that Grenier
had moderate limitations in two of the four listed abilities and
4
had marked limitations in the other two. See Tr. 343
In July of 2012, Grenier applied for DIB and SSI, claiming
that she was unable to work as a result of depression, PTSD, and
suicidal thoughts. After her claim was denied at the initial
level, Grenier received a hearing before an ALJ, who determined
that she was not eligible for benefits. In his decision, the
ALJ gave substantial weight to an assessment of Grenier’s mental
residual functional capacity (“RFC”) 1 by Dr. William Jamieson, a
non-examining state-agency consultant who reviewed Grenier’s
medical records. After spelling out his specific opinions on
Grenier’s mental RFC, Dr. Jamieson offered the following
additional explanation for his RFC assessment:
Weight given to [medical evidence of record] on file,
with increased weight to recent psych [consultative
examination by Dr. Richard Root]. Claimant does have
some limitations due to anxiety related [symptoms]. .
. .
Despite [symptoms], in a simple job[] setting, with
few social demands and reasonably supportive
supervision, claimant is able to maintain persistence
to task within acceptable tolerances, and to maintain
schedules and attendance without unreasonable
interruption. She does have limitations in stress
tolerance, and is able to deal with only simple and
routine changes in the work setting.
Tr. 86, 97.
1 “Residual functional capacity” is a term of art that means
“the most [a claimant] can still do despite [her] limitations.”
20 C.F.R. §§ 404.1519 & 416.919.
5
While the ALJ gave substantial weight to Dr. Jamieson’s
opinion, he effectively ignored the medical evidence from Dr.
Root to which Dr. Jamieson referred in his RFC assessment. That
medical evidence consists a Psychological Evaluation that Dr.
Root wrote after giving Grenier a consultative examination. 2 In
that evaluation, Dr. Root diagnosed Grenier with: chronic PTSD;
panic attacks with agoraphobia; alcohol dependence; depressive
disorder not otherwise specified; nicotine dependence; rule out
eating disorder; 3 rule out pain disorder with psychological and
medical factors; cocaine abuse in self-reported full remission;
and personality disorder traits of a depressed, narcissistic,
paranoid type. Based his examination, Dr. Root gave the
following opinions on Grenier’s then-current level of
functioning:
ACTIVITIES OF DAILY LIVING: . . . Ms. Grenier would
be able to handle her personal hygiene, cook, pay
bills and maintain her residence adequately. She will
have more difficulty with shopping, secondary to her
panic attacks. She likely could shop adequately with
a friend going with her.
2 “A consultative examination is a physical or mental
examination or test purchased for [a claimant] at [the Social
Security Administration’s] request.” 20 C.F.R. §§
404.1545(a)(1) & 416.945(a)(1).
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 in order to rule it out.” Byes v. Astrue, 687 F.3d 913,
916 n.3 (8th Cir. 2012) (citing United States v. Grape,
549 F.3d
591, 593 n.2 (3d Cir. 2008)).
6
SOCIAL FUNCTIONING: . . . Ms. Grenier is capable of
social functioning within a structured, supportive
setting, such as a one-on-one interview, as we
completed or within a work setting where tasks are
very clear and there is not significant emotional
intensity, confusion or demands. In settings that are
more emotionally charged, demanding or more
inconsistent, she will have significant problems
functioning.
UNDERSTANDING AND MEMORY: . . . [W]ithin a one-on-one
supportive structured setting, Ms. Grenier has
adequate skills and capabilities to understand and
remember short and simple, as well as slightly complex
[instructions], still has more difficulty with
situations where the instructions are more complicated
or there is more stress present.
CONCENTRATION AND TASK COMPLETION: . . . [W]ithin a
structured supportive one-on-one setting, Ms.
Grenie[r] is able to concentrate and compete tasks
adequately. In tasks that are more demanding and
emotionally, stressfully charged, she will have
difficulties. Her capability of concentrating on
tasks and completing tasks, likely would vary, based
on her self-reports. When she is having panic
attacks, she will have significantly more difficulty.
REACTION TO STRESS AND ADAPATION TO WORK-LIKE
SITUATIONS: . . . Ms. Grenier is able to maintain
attendance in a schedule and is able to interact
appropriately with supportive supervisors. In a
highly competitive, structured or fast paced stressful
environment, she likely will have more difficulty with
interacting appropriately with supervisors.
Tr. 338-39 (emphasis added).
At Grenier’s hearing, the ALJ posed questions to a
vocational expert (“VE”) that assumed a hypothetical worker with
Grenier’s education and work experience, and who
could do simple jobs with few social demands, and
persist with[in] acceptable tolerances, maintain
schedules and attendances without unreasonable
7
interruption, and can deal with only simple and
routine changes in a work setting.
Tr. 69. According to the VE, a person with those limitations
could not do Grenier’s past work as a private cook, but could
perform three other jobs. Later in the hearing, claimant’s
counsel asked the VE what jobs would be available to someone
with Grenier’s education and work experience who had to work “in
a one-on-one structured and supportive setting.” Tr. 72. The
VE testified that such a person would be virtually unemployable.
Ultimately, the ALJ found that Grenier could perform the
three jobs identified by the VE and, as a result, he determined
that she was not disabled. Grenier appealed the ALJ’s decision
to this court. On appeal, Judge Barbadoro ruled that “[t]he ALJ
erred by failing to address Dr. Root’s opinion regarding a one-
on-one work setting limitation.” Grenier v. Colvin, No. 14-cv-
153-PB, 2015 WL 5095899, at *4 (D.N.H. July 2, 2015). Based on
that ruling, Judge Barbadoro remanded the matter.
On remand, the ALJ conducted a second hearing. Before the
hearing, Grenier submitted two new pieces of evidence, the July
2014 DOE form and a January 2016 mental RFC assessment by Dr.
Gwendolyn Barros, a treating psychiatrist who also co-signed
both the 2011 and 2014 DOE forms.
In her mental RFC assessment, Dr. Barros gave 20 specific
opinions covering four broad functional abilities: understanding
8
and memory, sustained concentration and persistence, social
interaction, and adaptation. Among other things, Dr. Barros
opined that Grenier was markedly limited in her ability to: (1)
complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of
rest periods; (2) interact appropriately with the general
public; (3) get along with co-workers or peers without
distracting them or exhibiting behavioral extremes; and (4)
maintain socially appropriate behavior. According to the SSA’s
rating system, “markedly limited” is defined as a “[s]ubstantial
loss of ability [as a result of which a person] can sustain
performance only up to 1/3 of an 8-hour workday.” Tr. 992.
At Grenier’s second hearing, in 2016, her counsel elicited
testimony from the VE that a person who was off task for more
than 10 percent of the workday would be precluded from
employment. The VE also testified that all jobs would be
precluded for a person who “could only sustain performance for
up to one-third of the work day in the ability to interact
appropriately with the general public, and also could only
sustain performance for up to one-third of the work day in the
ability to get along with coworkers.” Tr. 602.
After the 2016 hearing, the ALJ issued a decision that
includes the following relevant findings of fact and conclusions
9
of law:
2. The claimant has not engaged in substantial
gainful activity since January 20, 2013, the alleged
onset date (20 CFR 404.1571 et seq., and 416.971 et
seq.).
. . . .
5. After careful consideration of the entire record,
I find that the claimant has the residual functional
capacity to perform a full range of work at all
exertional levels but with the following nonexertional
limitations: the claimant can do simple jobs with few
social demands, persist at tasks within reasonable
tolerances, maintain schedules and attendance without
unreasonable interruption, and deal with simple and
routine changes in the work setting.
. . . .
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. 562, 566, 572. As he had in his previous decision, the ALJ
found that Grenier was able to perform the three jobs identified
by the VE and, consequently, he determined that she was not
disabled.
The ALJ’s RFC includes no limitation to working in a
structured supportive one-on-one setting. In explaining the
basis for his RFC, the ALJ stated that he gave substantial
weight to the opinions in Dr. Jamieson’s RFC assessment and gave
little weight to the opinions in: (1) Dr. Root’s Psychological
Evaluation; (2) the 2014 DOE form, which was completed by Alissa
10
Gallo and Dr. Barros; (3) Dr. Barros’s RFC assessment; and (4)
Dr. Schneider’s Psychological Evaluation.
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. 42 U.S.C. §§ 423(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.
42 U.S.C. § 1382(a). The question in this
case is whether the ALJ correctly determined that Grenier was
not under a disability from January 20, 2013, thorough February
26, 2016.
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 20 C.F.R. §§
404.1520 (DIB) and 416.920 (SSI).
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
11
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, 276 F.3d 1, 5 (1st Cir. 2001) (citing
20
C.F.R. § 416.920).
The claimant bears the burden of proving that she is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v.
Chater,
944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker,
530 F. Supp. 808, 810-11 (D. Mass. 1982)). Finally,
[i]n assessing a disability claim, the [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, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS,
797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS,
690
F.2d 5, 6 (1st Cir. 1982)).
B. Grenier’s Claims
Grenier claims that the ALJ erred in determining her RFC by
mishandling the medical opinion evidence in at least three ways:
(1) basing his evaluation of the opinions in Dr. Barros’s 2016
RFC assessment on a misapprehension of the differences between
the rating systems used by the state Medicaid program and the
12
SSA; 4 (2) basing his evaluation of Dr. Root’s opinion on several
factual inaccuracies; and (3) giving substantial weight to Dr.
Jamieson’s opinion, which is not consistent with the record as a
whole. She also claims that the ALJ erred at step 5, by relying
upon VE testimony that was elicited in response to a
hypothetical question that incorporated the flawed RFC he
assigned her. The manner in which the ALJ handled Dr. Root’s
opinion merits the unusual remedy of reversal along with
instructions to the Acting Commissioner to approve Grenier’s
applications for benefits.
Judge Barbadoro remanded this matter because in the ALJ’s
first decision, he “fail[ed] to address Dr. Root’s opinion
regarding a one-on-one work setting limitation.” Grenier, 2015
WL 5095899, at *4. In his second decision, the ALJ did address
Dr. Root’s opinion and found it “unpersuasive and unsupported by
the record.” Tr. 570. He elaborated:
The opinion is not supported by any narrative within
Dr. Root’s report. [Grenier] told Dr. Root that she
could work if she had medical benefits for mental
health treatment. It is not supported by the
claimant’s work history as cook and self-employed
jewelry maker [not support limitation to unskilled
work]. Dr. Root noted that the claimant currently was
working at a market/store 30 hours per week, and was
using a computer. No prior work was in a 1-on-1
supportive work station. The claimant plays guitar
and writes music [not support limitation to unskilled
4 Indeed, the state Medicaid program uses the term
“moderate” to denote a more profound functional deficit than is
denoted by that same term in the SSI rating system.
13
work] and spends fair amount of time on the Internet,
writing music on computer 2.5-3 hours per day. In
November 2014, she reported that she was going to work
at Applebee’s, not a 1-on-1 supportive work station.
She reported a strength of “good at helping other
people.”
Id. (citations to the record omitted, brackets in the original).
In her motion to affirm the ALJ’s decision, respondent
points out that because Dr. Root was “not a ‘treating source,’”
his opinion was “not subject to the ‘treating source’ rule,
pursuant to which a medical opinion may be rejected only for
good reasons,” Smythe v. Astrue, No. 2:10-cv-521-GZS, 2011 WL
2580650, at *5 (D. Me. June 28, 2011) (citing
20 C.F.R. §§
404.1527(d)(2) & 416.927(d)(2)), R. & R. adopted by
2011 WL
2942733 (July 21, 2011). Still, the inapplicability of the
treating source rule to the opinion of an examining source
cannot be a license for an ALJ to give reasons for discounting
such opinions that are not supported by substantial evidence.
For example, in Ryder v. Colvin, in which Magistrate Judge Rich
cited Smythe, he rejected the claimant’s argument that an ALJ
had rejected the opinion of a consultative examiner “out of
hand,” but only after determining that the ALJ’s reasons for
discounting the examiner’s opinions were supported by the
record, see No. 1:15-cv-00509-GZS,
2016 WL 7048690, at *4 (D.
Me. Dec. 5, 2016), R. & R. adopted by
2017 WL 79943 (Jan. 9,
2017). Here, by contrast, the ALJ’s reasons for discounting Dr.
14
Root’s opinion are unsupported by the record.
The ALJ said that Dr. Root’s opinion was “not supported by
any narrative within Dr. Root’s report.” Tr. 570. But Dr. Root
did not present his opinions by means of a check-box form that
required further discussion; he presented his opinions in a
narrative format.
The ALJ said that Grenier “told Dr. Root that she could
work if she had medical benefits for mental health treatment.”
Tr. 570. What Grenier actually said was that “she would not be
able to work without [mental-health] services.” Tr. 334.
Moreover, the record shows that in January of 2013, about a
month after she saw Dr. Root, and while she was receiving
mental-health services, Grenier quit her job at a market because
she “was so stressed out, having major panic attacks.” Tr. 54.
In other words, even with mental-health services, Grenier felt
that she was unable to work. Thus, the statement to which the
ALJ refers does not contradict Dr. Root’s opinion that Grenier
requires a structured supportive one-on-one work setting.
The ALJ said that “Dr. Root noted that the claimant
currently was working at a market/store 30 hours per week, and
was using a computer.” Tr. 570. But Dr. Root also noted “that
the market accommodate[d] her panic attacks,” Tr. 334, which
supports, rather than contradicts, his opinion that Grenier
required a structured supportive one-on-one work setting. And
15
while the record supports the ALJ’s finding that Grenier “was
using a computer,” Tr. 570, the ALJ does not explain how
Grenier’s ability to use a computer contradicts Dr. Root’s
opinion.
The ALJ said that “[n]o prior work was in a 1-on-1
supportive work station.” Tr. 570. But, as the court has
noted, Grenier’s market job included accommodations for her
panic attacks. Moreover, her job as a cook was one in which she
“did all the cooking, grocery shopping and cleaning for a
private home,” Tr. 212, and her jewelry-making job involved
“making bracelets when [she] was in the truck with [her]
husband,” Tr. 51. Thus, at least three of Grenier’s previous
jobs involved either support or work that was performed with
very few other people around. Moreover, even if the record did
support the ALJ’s finding that none of Grenier’s prior work was
performed in a one-on-one setting, that would not contradict Dr.
Root’s opinion, in light of the record evidence that Grenier
felt compelled to leave a number of previous jobs because of
stress associated with working in a job setting in which she was
obligated to interact with other people.
The ALJ said that “[t]he claimant . . . spends [a] fair
amount of time on the Internet, writing music on [a] computer
2.5-3 hours per day.” Tr. 570. Leaving aside the ALJ’s failure
to explain how music-writing and Internet usage contradict Dr.
16
Root’s opinion, Grenier testified at her second hearing that she
went on the Internet “[m]aybe once a week,” Tr. 600. Thus, the
ALJ’s finding that Grenier spent several hours a day on the
Internet is not supported by substantial evidence.
The ALJ said that “[i]n November 2014, [Grenier] reported
that she was going to work at Applebee’s, not a 1-on-1
supportive work station.” Tr. 570. That may be, but earlier in
his decision, the ALJ found that Grenier had “not engaged in
substantial gainful activity since January 20, 2013,” Tr. 562,
so her stated intention to get a job at Applebee’s, which came
to nothing, does not contradict Dr. Root’s opinion that she
requires a structured supportive one-on-one work setting.
Finally, the ALJ said that Grenier “reported a strength of
‘good at helping other people.’” Tr. 570. In fact, two
Service/Treatment plans that appear to have been drafted by
Gallo include the following notation: “Client Strengths: Inner
strength, being a survivor, good at helping other people.” Tr.
949, 951. Even if the characterization of Grenier as being
“good at helping other people” is fairly attributed to Grenier
herself, rather than to Gallo, an ability to help other people
does not contradict Dr. Root’s opinion that Grenier requires a
structured supportive one-on-one work setting.
Based on the foregoing, the court concludes that the ALJ’s
reasons for discounting Dr. Root’s opinions are unsupported by
17
the record. As the court has explained, because Dr. Root was
not a treating source, the ALJ was not required to give good
reasons for discounting his opinion. If that were the standard,
the ALJ’s handling of Dr. Root’s opinion would plainly amount to
reversible error. See Martinage v. Berryhill, No. 16-cv-245-PB,
2017 WL 1968291, at *8 (D.N.H. Apr. 20, 2017) (describing the
“good reasons” requirement). But even if the ALJ was not
required to give good reasons for discounting Dr. Root’s
opinion, he was obligated to support the reasons he did give
with substantial evidence from the record, and his decision
fails to pass muster under even that lower standard. In light
of Judge Barbadoro’s previous remand for failure to address Dr.
Root’s opinion in the first instance, the ALJ’s failure to
identify substantial evidence to support the weight he assigned
to that opinion in his second decision requires at least a
remand. See, e.g., Durgin v. Berryhill, No. 16-cv-451-SM,
2017
WL 3432611, at *7 (D.N.H. July 24, 2017) (remanding “[b]ecause
none of the ALJ’s three reasons for discounting [a consultative
examiner’s] opinion [were] supported by substantial evidence”),
R. & R. adopted by
2017 WL 3431956 (Aug. 9, 2017); Hunter v.
Colvin, No. 15-cv-421-PB,
2016 WL 6496238, at *9 (D.N.H. Oct.
13, 2016) (same), R. & R. adopted by
2016 WL 6496219 (Nov. 2,
2016).
Beyond the lack of record support for the ALJ’s evaluation
18
of Dr. Root’s opinion, the ALJ’s evaluation of the relevant
opinions contains a fundamental inconsistency. Specifically:
(1) the ALJ gave substantial weight to Dr. Jamieson’s opinion,
see Tr. 570; (2) Dr. Jamieson gave “increased weight” to Dr.
Root’s opinion, and identified no aspect of that opinion that he
did not credit, including the limitation to a structured
supportive one-on-one work setting, see Tr. 86, 97; yet (3) the
ALJ says he gave little weight to Dr. Root’s opinion. Given Dr.
Jamieson’s endorsement of Dr. Root’s opinion, along with his own
limitation to work “in a simple job setting, with few social
demands and reasonably supportive supervision,” id. (emphasis
added), it is difficult to see how, as a logical matter, the
weight the ALJ gave to Dr. Jamieson’s opinion did not extend to
Dr. Root’s opinion, especially in light of the ALJ’s failure to
explain how he could credit Dr. Jamieson’s opinion without also
crediting Dr. Root’s opinion.
This case has much in common with Payne v. Colvin, No. 15-
cv-274-JD, 2016 WL 8674486 (D.N.H. May 20, 2016), R. & R.
adopted by
2016 WL 3351004 (June 15, 2016), which resulted in a
remand. In Payne, the ALJ gave great weight to the opinion of
an examining psychologist, but the ALJ did not include a
significant limitation from that opinion in the RFC he assigned
to the claimant. See id. at *6. Since there was no other
evidence in the record to support an RFC that did not include
19
the limitation at issue, the case was “remanded because the
ALJ’s RFC assessment [was] not supported by substantial
evidence.” Id. This case presents a two-fold embodiment of the
Payne scenario. The ALJ gave substantial weight to Dr.
Jamieson’s opinion, which gave substantial weight to Dr. Root’s
opinion, and each opinion included a significant limitation that
the ALJ did not include in his RFC, i.e., Dr. Jamieson’s
limitation to working in “reasonably supportive supervision,”
Tr. 86, 97, and Dr. Jamieson’s analogous limitation to working
“within a structured, supportive setting,” Tr. 338. Absent
another opinion that supports an RFC that does not include a
limitation to a structured supportive one-on-one work setting,
and neither the ALJ nor the Acting Commissioner has identified
such an opinion, the ALJ’s RFC assessment is not supported by
substantial evidence.
Under ordinary circumstances, the lack of substantial
evidence to support the ALJ’s weighing of Dr. Root’s opinion,
along with the Payne problem, would counsel in favor of remand.
However, “a remand for further proceedings is unnecessary if the
record is fully developed and it is clear from the record that
the ALJ would be required to award benefits.” Holohan v.
Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001) (citing
Ghokassian v. Shalala,
41 F.3d 1300, 1303 (9th Cir. 1994);
Pitzer v. Sullivan,
908 F.2d 502, 506 (9th Cir. 1990); Varney v.
20
Sec’y of HHS, 859 F.2d 1396, 1399 (9th Cir. 1988)). Rather, as
the court of appeals for this circuit has explained, “a judicial
award of benefits [is] proper where the proof of disability is
overwhelming or where the proof is very strong and there is no
contrary evidence.” Seavey,
276 F.3d at 11 (citing Mowery v.
Heckler,
771 F.2d 966, 973 (6th Cir. 1985)).
The circumstances of this case warrant application of the
principles articulated in Massanari and Seavey. First, there a
lack of substantial evidence to support either the ALJ’s
weighing of Dr. Root’s opinion or his omission of Dr. Root’s
limitation to a structured supportive one-on-one work setting
from Grenier’s RFC. Second, the court can find no evidence in
the record that would support an RFC that does not include Dr.
Root’s limitation. To the contrary, Dr. Root’s opinion that
Grenier requires a structured supportive one-on-one work setting
is consistent with all seven of the other opinions in the
record. These include: (1) the 2011 DOE form prepared by Leslie
Jones and Dr. Barros in which they opined that Grenier had
moderate limitations in all four functional abilities; 5 (2) the
2012 DOE form prepared by Jones and Dr. Marianne Marsh in which
they also opined that Grenier had moderate limitations in all
5 As the court has already pointed out, that is a degree of
limitation that denotes a need for assistance to perform
adequately in each of those areas. See Tr. 516-19.
21
four abilities; (3) the 2012 Psychiatric Evaluation by Dr.
Schneider in which he opined that Grenier had moderate
limitations in two of the four listed abilities and marked
limitations in the other two; (4) the 2012 in opinion which Dr.
Jamieson gave weight to Dr. Root’s opinion and expressly
identified Grenier’s need for “reasonably supportive
supervision,” Tr. 86, 97; (5) a 2013 RFC assessment by Dr.
Barros in which she opined Grenier had marked limitations in
eight different abilities, see Tr. 508-12; (6) the 2014 DOE form
prepared by Gallo and Dr. Barros in which they opined,
consistent with the two previous DOE forms, that Grenier had
moderate limitations in all four abilities; and (7) the 2016 RFC
assessment by Dr. Barros in which she determined that Grenier
had marked limitations in four different abilities.
Because there is no evidence to support an RFC that does
not include a limitation to a structured supportive one-on-one
work setting and there is overwhelming evidence in support of
such a limitation, and because the VE testified that such a
limitation would preclude all work, this is one of those very
rare cases in which the appropriate result is not a remand but a
reversal with instructions to award benefits. See Seavey, 276
F.3d at 11.
22
IV. Conclusion
For the reasons detailed above, the Acting Commissioner’s
motion for an order affirming her decision, document no. 9, is
denied; Grenier’s motion to reverse that decision, document no.
8, is granted; and the Acting Commissioner is directed to
approve Grenier’s applications for DIB and SSI. The clerk of
the court shall enter judgment in accordance with this Order and
close the case.
SO ORDERED.
__________________________
Joseph N. Laplante
United States District Judge
August 25, 2017
cc: Bennett B. Mortell, Esq.
Terry L. Ollila, Esq.
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