McCormick v. SSA

                     UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW HAMPSHIRE



Jonathan Theodore McCormick

   v.                                Civil No. 16-cv-321-LM
                                     Opinion No. 

Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration


                              O R D E R


    Pursuant to 

(g), Jonathan McCormick moves to

reverse the Acting Commissioner’s decision to deny his

applications for Social Security disability insurance benefits,

or DIB, under Title II of the Social Security Act, 

, and for supplemental security income, or SSI, under Title

XVI, 

.     The Acting Commissioner, in turn, moves

for an order affirming her decision.      For the reasons that

follow, this matter is remanded to the Acting Commissioner for

further proceedings consistent with this order.


                         I. Standard of Review

    The applicable standard of review in this case provides, in

pertinent part:

    The [district] court shall have power to enter, upon
    the pleadings and transcript of the record, a judgment
    affirming, modifying, or reversing the decision of the
    Commissioner of Social Security, with or without
    remanding the cause for a rehearing. The findings of
    the Commissioner of Social Security as to any fact, if
    supported by substantial evidence, shall be conclusive
    . . . .

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

decisions); see also 

(c)(3) (establishing

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

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

benefits unless ‘the [Acting Commissioner] has committed a legal

or factual error in evaluating a particular claim.’”       Manso-

Pizarro v. Sec’y of HHS, 

 (1st Cir. 1996) (per

curiam) (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

draw inferences from the record evidence.    Indeed, the


                                2
resolution of conflicts in the evidence is for the [Acting

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

 (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, 

 (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, 

 (quoting

Rodriguez v. Sec’y of HHS, 

 (1st Cir. 1981)).


                           II. Background

    The parties have submitted a Joint Statement of Material

Facts.   That statement, document no. 11, is part of the court’s

record and is summarized here, rather than repeated in full.

    McCormick worked as a self-employed carpenter until June of

2012.    His medical records include diagnoses of physical

conditions affecting his left elbow (bursitis), his left hip

(osteoarthritis), his shoulders (high-grade acromioclavicular

shoulder separations/instability), his right wrist (joint pain),

and his lower back (thoracic or lumbosacral neuritis or




                                  3
radiculitis, unspecified;1 spinal stenosis without neurogenic

claudication;2 and lumbosacral spondylosis without myelopathy3).

He has also been diagnosed with peripheral neuropathy4 and a mood

disorder.

     McCormick applied for both DIB and SSI in June of 2013.

Because he submitted insufficient evidence, the initial review

of his applications included no assessment of either his

physical or mental residual functional capacity (“RFC”).5




     1 Neuritis is the “[i]nflammation of a nerve.” Stedman’s
Medical Dictionary 1308 (28th ed. 2006). Radiculitis is a
synonym for radiculopathy, which is a “[d]isorder of the spinal
nerve roots.” Id. at 1622.

     2 Stenosis is “[a] stricture of any canal or orifice.”
Stedman’s, supra note 1, at 1832. Claudication means limping.
See id. at 389. Neurogenic means “[o]riginating in, starting
from, or caused by, the nervous system or nerve impulses.” Id.
at 1310.

     3 Spondylosis is “[a]nkylosis of the vertebra; often applied
nonspecifically to any lesion of the spine of a degenerative
nature.” Stedman’s, supra note 1, at 1813. Ankylosis is the
“[s]tiffening or fixation of a joint as a result of a disease
process, with fibrous or bony union across the joint; fusion.”
Id. at 95. Myelopathy is a “[d]isorder of the spinal cord.”
Id. at 1270.

     4 Neuropathy is “a disease involving the cranial nerves or
the peripheral or autonomic nervous system.” Stedman’s, supra
note 1, at 1313.

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

 & 416.919.



                                4
    In January of 2014, McCormick saw Dr. Shawn Harrington for

a re-evaluation of his back pain.   Several weeks later, Dr.

Harrington completed an RFC Questionnaire on McCormick.   In it,

Dr. Harrington identified diagnoses of lower back pain, spinal

stenosis, shoulder pain, and hip osteoarthritis.    Dr. Harrington

stated that McCormick’s impairments resulted in pain, numbness,

and back stiffness and that those symptoms were often “severe

enough to interfere with the attention [and] concentration

required to perform simple work-related tasks.”    Administrative

Transcript (hereinafter “Tr.”) 372.   Dr. Harrington opined that

McCormick: (1) needed to recline or lie down more often than

would by permitted by the breaks typically given during a normal

workday; (2) could sit and could stand/walk for 30 minutes at a

time; (3) could sit and could stand/walk for a total of two

hours each in an eight-hour workday; (4) needed a job that

permitted shifting positions at will from sitting, standing, or

walking; (5) needed to take hourly unscheduled breaks of unknown

duration; (6) could frequently lift and carry less than 10

pounds; (7) could never lift and carry any more than that; (8)

had unspecified limitations on his capacity for repetitive

reaching, handling, or fingering due to wrist arthritis; and (9)

was likely to be absent from work more than four times a month

due to his impairments or treatment for them.




                                5
     In March of 2014, McCormick’s primary care physician, Dr.

Lora McClintock, completed an RFC Questionnaire on McCormick.

In it, she identified diagnoses of severe degenerative disc

disease of the lumbosacral spine, a condition affecting both

shoulders, and a condition affecting McCormick’s left hip.6    She

also identified the following symptoms: low back pain, bilateral

shoulder pain and limited range of motion, paresthesias,7 and

chronic pain.   Dr. McClintock opined that McCormick: (1) needed

to recline or lie down more often than would by permitted by the

breaks typically given during a normal workday; (2) could walk

several city blocks without rest or significant pain; (3) could

sit and could stand/walk for 30 minutes at a time; (4) could sit

and could stand/walk for a total of four hours each in an eight-

hour workday; (5) needed a job that permitted shifting positions

at will from sitting, standing, or walking; (6) needed to take

unscheduled breaks of unpredictable duration at unpredictable

intervals; (7) could occasionally lift and carry up to 10

pounds; (8) could never lift and carry any more than that; (9)

could grasp, turn, and twist objects with each hand for 25



     6 The entry on the “Diagnosis” line of the questionnaire
reads: “severe DDD l-s spine, bl shoulders, L hip.” Tr. 394.

     7 Paresthesia is “[a] spontaneous abnormal usually
nonpainful sensation (e.g., burning, pricking); may be due to
lesions of both the central and peripheral nervous systems.”
Stedman's, supra note 1, at 1425.


                                 6
percent of an eight-hour workday; (10) could perform fine

manipulation with the fingers of each hand for 25 percent of an

eight-hour workday; (11) could never reach with his arms; and

(12) was likely to be absent from work three or four times a

month due to his impairments or treatment for them.

     The record also includes a Mental Capacity Assessment

completed by Jan Manwaring, a licensed clinical social worker.

In it, she considered 23 specific abilities and determined that

McCormick had: (1) unknown limitations in two abilities; (2)

moderate limitations in six abilities; (3) marked limitations in

nine abilities; and (4) extreme limitations in six abilities.

     After McCormick’s applications were denied at the initial

level of review, he received a hearing before an Administrative

Law Judge (“ALJ”).   At the hearing, the ALJ took telephonic

testimony from Dr. Arthur Brovender, a board certified

orthopedic surgeon who had neither treated nor examined

McCormick, but had reviewed McCormick’s medical records.     After

describing the medical records he reviewed, Dr. Brovender stated

that McCormick had been diagnosed with degenerative disc disease

of the lumbosacral spine, grade one spondylosis, and

“osteoarthritis of the set.”8   Tr. 46.   He then testified that

McCormick did not have a spine disorder that was, under the


     8 The court presumes that instead of “set,” Dr. Brovender
actually said “hip.”


                                 7
relevant regulatory criteria, sufficiently severe to qualify as

a per se disabling impairment.    Dr. Brovender did not assess the

severity of McCormick’s osteoarthritis nor did he acknowledge

McCormick’s diagnosis of peripheral neuropathy.

    The ALJ’s examination of Dr. Brovender continued in the

following manner:

    Q Based upon your experience, education, and review
    of this medical record, do you have an opinion as to
    whether there would be functional limitations that
    would exist based upon these conditions that you’ve
    identified?

    A Yes, he has no limitations for sitting, standing,
    and walking. His limitations would be postural;
    occasional bending, stooping, squatting, and kneeling,
    stairs and ramps occasional, ropes, ladders, and
    scaffolds occasional. I would not have him crawl.
    Occasional unprotected heights, he could lift 10
    pounds continuously, 20 pounds frequently, and 50
    pounds occasionally.

    Q   Any other limitations?

    A   That’s all I can think of, your honor.

Tr. 46-47.

    When McCormick’s attorney asked Dr. Brovender about the

discrepancy between the RFC he gave McCormick and the RFCs

assessed by Drs. Harrington and McClintock, Dr. Brovender

explained that McCormick’s “physical examinations show that his

motor neurological and sensory examinations were normal, his

reflexes were normal, he had no sensory changes, he had no

muscle weakness.”   Tr. 47.   In response to another question from



                                  8
McCormick’s attorney, Dr. Brovender testified that McCormick’s

ability to use his upper extremities was unlimited.

    After taking testimony from Dr. Brovender, the ALJ took

testimony from a vocational expert (“VE”).    He began by asking

the VE about a hypothetical individual with the following

limitations:

    [H]e can lift 50 pounds occasionally, 20 pounds
    frequently, no limitations with standing, sitting,
    walking, or manipulation. He should not crawl but all
    the rest of the posturals are at occasional and he
    occasionally [can] be exposed to unprotected heights.

Tr. 68-69.    According to the VE, a person with the foregoing

limitations could do carpentry, as that job is generally

performed, i.e., at the medium exertional level.    The VE also

testified that a person with those limitations could do the job

of cleaner, kitchen helper, and packer, all of which are

unskilled jobs at the medium exertional level.     The applicable

regulations provide that “[m]edium work involves lifting no more

than 50 pounds at a time with frequent lifting or carrying of

objects weighing up to 25 pounds.”    

(c) &

416.967(c).    In addition, “[a] full range of medium work

requires standing or walking, off and on, for a total of

approximately 6 hours in an 8-hour workday in order to meet the

requirements of frequently lifting or carrying objects weighing

up to 20 pounds.”    Social Security Ruling 83-10, 

,

at *6 (S.S.A. 1983).


                                  9
    In response to a hypothetical question that incorporated

Dr. Harrington’s limitations, the VE testified there are no jobs

that a person with that RFC would be able to perform.   In

response to a hypothetical question that incorporated Dr.

McClintock’s limitations, the VE testified that, at most, a

person with that RFC could perform the job of surveillance

system monitor, but that “if this individual is going to require

unscheduled breaks [of] unknown duration or frequency, that

could be problematic in terms of performing any work,” Tr. 71.

    The VE’s testimony concluded with a question from

McCormick’s counsel:

    Q In your opinion, what are the maximum number of
    days per month an[] individual can be absent on a
    continu[ing] basis before it would be problematic?

    A For unskilled work, one day per month, month after
    month on a continuous basis or more would not be
    tolerated.

Tr. 72.

    After the hearing, the ALJ issued a decision in which he

gave little weight to Dr. Harrington’s opinion, little weight to

Dr. McClintock’s opinion, and great weight to Dr. Brovender’s

opinion.   The ALJ’s decision also 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, right
    elbow arthritis, alcohol-induced peripheral neuropathy
    (20 CFR 404.1520(c) and 416.920(c)).



                                10
    . . . .

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

    . . . .

    5. After careful consideration of the entire record,
    I find that the claimant has the residual functional
    capacity to perform medium work as defined in 20 CFR
    404.1567(c) and 416.967(c) except he has no
    limitations with sitting, standing, walking, or
    manipulation. He should never crawl, but could
    perform the remainder of the postural activities on an
    occasional basis. He can have occasional exposure to
    unprotected heights.

    . . . .

    6. The claimant is capable of performing past
    relevant work as a carpenter. This work does not
    require the performance of work-related activities
    precluded by the claimant’s residual functional
    capacity (20 CFR 404.1565 and 416.965).

Tr. 15, 17, 18, 25.   In addition to determining that McCormick

was capable of performing the skilled job of carpenter, as

generally performed, the ALJ also determined, in the

alternative, that McCormick could perform the jobs of cleaner,

kitchen helper, and packer.


                         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


                                11
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 only question in

this case is whether the ALJ correctly determined that McCormick

was not under a disability from June 30, 2012, through March 17,

2015.

    To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI benefits, an ALJ

is required to employ a five-step process.    See 

 (DIB) & 416.920 (SSI).

    The steps are: 1) if the [claimant] is engaged in
    substantial gainful work activity, the application is
    denied; 2) if the [claimant] does not have, or has not
    had within the relevant time period, a severe
    impairment or combination of impairments, the
    application is denied; 3) if the impairment meets the
    conditions for one of the “listed” impairments in the
    Social Security regulations, then the application is
    granted; 4) if the [claimant’s] “residual functional
    capacity” is such that he or she can still perform
    past relevant work, then the application is denied; 5)
    if the [claimant], given his or her residual
    functional capacity, education, work experience, and
    age, is unable to do any other work, the application
    is granted.

Seavey v. Barnhart, 

 (1st Cir. 2001) (citing 

).

    The claimant bears the burden of proving that he is

disabled.   See Bowen v. Yuckert, 

 (1987).    He


                                12
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 [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)).


    B. McCormick’s Claims

    McCormick claims that the ALJ: (1) erred in assessing his

RFC by giving too little weight to the opinions of Drs.

Harrington and McClintock and by giving too much weight to the

opinion of Dr. Brovender; and (2) failed to properly consider

his mental impairments.   The court agrees that the ALJ did not

give good reasons for discounting the opinions of Drs.

Harrington and McClintock.

    Under the applicable regulations, the opinions of treating

sources such as Drs. Harrington and McClintock are entitled to

controlling weight if they are “well-supported by medically

acceptable clinical and laboratory diagnostic techniques and

[are] not inconsistent with the other substantial evidence in [a




                                13
claimant’s] case record.”    

(c)(2) &

416.927(c)(2).   Given that the opinions offered by Drs.

Harrington and McClintock are not consistent with Dr.

Brovender’s opinions, there is no good argument to be made that

the opinions of McCormick’s two treating sources are entitled to

controlling weight.

    When an ALJ does not give controlling weight to a treating

source’s opinion, he must still determine how much weight to

give that opinion by considering the following factors: (1) the

length of the treatment relationship and the frequency of

examination; (2) the nature and extent of the treatment

relationship; (3) the supportability of the opinion; (4) the

consistency of the opinion with the record as a whole; (5) the

specialization of the source offering the opinion; and (6) any

other relevant factors.     See 

(c)(2)-(6) &

416.927(c)(2)-(6).    After an ALJ considers the applicable

factors, “[i]n many cases, a treating source’s opinion will be

entitled to the greatest weight and should be adopted, even if

it does not meet the test for controlling weight.”    Hunt v.

Colvin, No. 16-cv-159-LM, 

, at *7 (D.N.H. Dec. 5,

2016) (quoting Social Security Ruling 96-2p, 

, at

*4 (S.S.A. July 2, 1996)).




                                  14
    Finally, an ALJ must give “good reasons in [his] decision

for the weight [he] give[s] [a claimant’s] treating source’s

opinion.”    

(c)(2) & 416.927(c)(2).

    To meet the “good reasons” requirement, the ALJ’s
    reasons must be both specific, see Kenerson v. Astrue,
    No. 10-cv-161-SM, 

, at *4 (D.N.H. May
    20, 2011) (citation omitted), and supportable, see
    Soto–Cedeño v. Astrue, 

 (1st Cir.
    2010). In sum, the ALJ’s reasons must “offer a
    rationale that could be accepted by a reasonable
    mind.” Widlund v. Astrue, No. 11-cv-371-JL, 

, at *9 (D.N.H. Apr. 16, 2012) (citing Lema v.
    Astrue, C.A. No. 09–11858, 

, at *4 (D.
    Mass. Mar. 21, 2011)), report and recommendation
    adopted by 

 (D.N.H. May 14, 2012).

Jenness v. Colvin, No. 15-cv-005-LM, 

, at *6

(D.N.H. Aug. 27, 2015).    With regard to the specificity

component of the good reasons requirement,

    [a]n AJL must provide specific reasons for assigning
    weight to a treating source’s opinion because
    “‘specific reasons’ . . . allow ‘subsequent reviewers
    [to know] . . . the weight the adjudicator gave to the
    treating source’s medical opinion and the reasons for
    that weight.’” Kenerson, 

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

,
    at *5 (1996)). “[W]here no such ‘specific reasons’
    are given, remand is appropriate if the failure
    renders meaningful review impossible.” 

 at *4
    (citing Lord v. Apfel, 

 (D.N.H.
    2000)).

Jenness, 

, at *7.

    Having outlined the applicable legal principles, the court

turns to the opinions of Drs. Harrington, McClintock, and

Brovender.




                                 15
            1. Dr. Harrington

    In his RFC Questionnaire, Dr. Harrington identified: (1)

limitations on sitting, standing, and walking that, according to

the VE, would preclude any work; (2) a limitation on lifting and

carrying and a limitation on standing and walking that would

preclude work at the medium exertional level; and (3) a

likelihood of absences from work with a frequency that,

according to the VE, would preclude all unskilled work.

    After describing the opinions in Dr. Harrington’s RFC

Questionnaire, the ALJ gave the following evaluation of those

opinions:

    This opinion is not well supported by or consistent
    with the evidence of record. Dr. Harrington
    identified limitations that are not consistent with
    the clinical examinations or the claimant’s own
    reports of pain and limitation. For example, [Dr.
    Harrington] opined that the claimant has wrist
    arthritis that would limit his ability to engage in
    certain activities, but in a function report, the
    claimant did not endorse any difficulty using his
    hands. Further, the claimant has been able to attend
    appointments as scheduled without no-shows or arriving
    late, which shows he is able to maintain a schedule.
    The claimant’s daily activities show that he is able
    to engage in work-related activities on a regular and
    consistent basis. Dr. Harrington did not cite to
    specific clinical examinations or deficits in support
    of his opinion statement. Overall, I find that his
    opinion is not well supported by or consistent with
    the evidence of record, despite his status as a
    treating provider. For these reasons, I give his
    opinion little weight.

Tr. 23-24.   There are several problems with the ALJ’s

explanation for the weight he gave Dr. Harrington’s opinions.


                                16
    First of all, while he addressed Dr. Harrington’s opinion

that McCormick: (1) had limitations on his capacity for

repetitive reaching, handling, or fingering; and (2) was likely

to be absent from work more than four times a month, he said

nothing about Dr. Harrington’s opinions on Harrington’s capacity

for sitting, standing, and walking and his capacity for lifting

and carrying.   The ALJ was obligated to give good reasons for

the weight he gave those opinions, see 

(c)(2) & 416.927(c)(2), and by giving no reasons at all,

he necessarily fell short of meeting the “good reasons”

requirement.

    To be sure, the ALJ stated that Dr. Harrington’s opinion,

as a whole, was “not well supported by or consistent with the

evidence of record,” Tr. 23, which echoes two of the factors for

evaluating treating source opinions.   But without identifying

either a particular opinion, such as the limitation on sitting,

standing, and waking, and without identifying particular

contradictory record evidence, the ALJ’s blanket assessment of

Dr. Harrington’s opinion is insufficiently specific to qualify

as a good reason.   See Jenness, 

, at *7.   The

ALJ’s statement that “[t]he claimant’s daily activities also

show that he is able to engage in work-related activities on a

regular and consistent basis,” Tr. 23, suffers from a similar

lack of specificity.   See Willey v. Colvin, No. 15-cv-368-JL,


                                17


, at *5 (D.N.H. Apr. 7, 2016) (rejecting ALJ’s

determination that claimant’s “reported daily activities

indicate[d] that she would be able to tolerate at least light

lifting and light exertion sitting and standing requirements”

when ALJ “did not point to any specific daily activities that

demonstrate[d] [claimant’s] capacity to meet those exertional

requirements”).

    Not only are the ALJ’s explanations thin on specificity,

the specific explanations he did provide are not persuasive.

For example, he discounted Dr. Harrington’s opinion on

McCormick’s capacity for repetitive reaching, handling, or

fingering because McCormick “did not endorse any difficulty

using his hands,” Tr. 23, in a function report he completed

several months before Dr. Harrington gave his opinions.       That

function report asked McCormick to indicate any areas that his

condition affected.     He did not check the box for “Using Hands,”

but he did check the box for “Reaching.”     Tr. 250.   His

endorsement of a difficulty with reaching is, in turn,

consistent with Dr. Harrington’s opinion that McCormick had

limitations on his capacity for repetitive reaching, handling,

or fingering.     Moreover, in a treatment note that Dr. Harrington

wrote after McCormick filled out his function report, but before

he completed his RFC Questionnaire, McCormick complained of pain

in his right wrist which Dr. Harrington diagnosed as “[c]hronic


                                  18
[right] wrist pain ? [degenerative joint disease].”    Tr. 385.

So, the mere fact that McCormick did not check the box for

“Using Hands” in his function report is not a good reason for

discounting Dr. Harrington’s opinion that McCormick had a

limited capacity for reaching, handling, or fingering.

     The ALJ’s reason for discounting Dr. Harrington’s opinion

that McCormick was likely to be absent from work more than four

times a month due to his impairments or treatment for them is

even less persuasive.   Leaving aside the ALJ’s failure to offer

any citations to the record to support his observation that

McCormick has been able to attend all of his medical

appointments, there is a logical problem with the ALJ’s

explanation.   The ALJ does not say how many medical appointments

McCormack has attended without mishap.9    If that number is small,

then McCormick’s ability to make it on time to a few medical

appointments is hardly substantial evidence that he would be

able to get to work on a daily basis.     But if, on the other

hand, the ALJ’s observation is based upon a large enough number

of medical appointments to make McCormick’s attendance at them a

reasonable proxy for daily attendance at a job, then that would

support Dr. Harrington’s opinion that McCormick was likely to

have more than four absences from work each month on account of


     9 To her credit, the Acting Commissioner points out that
McCormick did actually miss one of his scheduled appointments.


                                19
medical treatment.    Either way, the ALJ’s explanation is

unpersuasive.

    In sum, the ALJ has not given good reasons for giving

little weight to Dr. Harrington’s opinions.     His explanation

generally lacks specificity, and when there is a link between a

specific opinion and evidence that purportedly undermines it,

the explanation is either unsupported by the record or logically

flawed.     Given that Dr. Harrington offered several opinions

that, if credited, would preclude McCormick’s employment, the

ALJ’s failure to give good reasons for discounting those

opinions merits a remand.


            2. Dr. McClintock

    In his RFC Questionnaire, Dr. McClintock identified: (1)

limitations on lifting and carrying and limitations on standing

and walking that would preclude work at the medium exertional

level; (2) a need for unscheduled breaks that would preclude

McCormick from any work; and (3) a likelihood of absences from

work that, according to the VE, would preclude all unskilled

work.

    After describing the opinions in Dr. McClintock’s RFC

Questionnaire, the ALJ gave the following evaluation of those

opinions:

    Dr. McClintock identified limitations that are not
    well supported by or consistent with the evidence of


                                  20
    record. For example, she also identified
    limitation[s] in the claimant’s use of his hands, but
    this is not something the claimant described in his
    function report. She also stated the claimant could
    only stand/walk for 30 minutes at a time, but the
    claimant’s function report shows that he is able to
    spend an hour grocery shopping, which would involve an
    hour’s worth of standing and walking. Treatment notes
    also show that the claimant did not complain of or
    present with side effects from medication. Overall, I
    find that Dr. McClintock’s opinion is not well
    supported by or consistent with the evidence of record
    and entitled to little weight.

Tr. 24.

    The ALJ’s evaluation of Dr. McClintock’s opinions suffers

from the same shortcomings as his evaluation of Dr. Harrington’s

opinions.   Again, the ALJ did not address the limitation on

lifting and carrying or the limitation on standing and walking,

either of which would preclude work at the medium exertional

level, nor did he address Dr. McClintock’s opinion that

McCormick would require unscheduled breaks that would preclude

any work.   Moreover, apart from the ALJ’s discussion of the

limitation related to McCormick’s capacity for repetitive

reaching, handling, or fingering, discussed above, the ALJ

provided only two other explanations that are specific enough

for the court to review, see Jenness, 

, at *7,

but neither explanation pertains to an opinion of any

significance.

    The ALJ challenged Dr. McClintock’s opinion that McCormick

can only stand/walk for 30 minutes at a time, but even without


                                21
that limitation, the remaining limitations in Dr. McClintock’s

RFC Questionnaire would support a determination that McCormick

is disabled.   Similarly, the ALJ stated that “[t]reatment notes

also show that the claimant did not complain of or present with

side effects from medication,” Tr. 24, but Dr. McClintock did

not assess any limitations based upon side effects of

medication.    Rather, she simply responded to a question asking

her to “[i]dentify the side effects of any medications which may

impact [claimant’s] capacity for work, i.e., dizziness,

drowsiness, stomach upset, etc.”       Tr. 394.   Rather than saying

that McCormick was suffering from any specific side effects, Dr.

McClintock merely stated that “imbalance [and] uncoordination

[were] likely from gabapentin.”    

     That was a statement about

the nature of gabapentin, not a statement about McCormick’s

functional capacity.    Thus, the statement the ALJ challenges was

not even an opinion in the first place.       See 

(a)(2) & 416.927(a)(2) (“Medical opinions are statements

from physicians . . . that reflect judgments about the nature

and severity of [a claimant’s] impairment(s), including [his]

symptoms, diagnosis and prognosis, what [he] can still do

despite impairment(s), and [his] physical or mental

restrictions.”).    So, while the ALJ did make specific criticisms

of two statements in Dr. McClintock’s RFC Questionnaire, neither

criticism pertained to anything in the questionnaire that, if


                                  22
disregarded, would undermine the support that Dr. McClintock’s

opinions provide for an RFC that, if adopted by the ALJ, would

result in a determination that McCormick lacks the functional

capacity to engage in substantial gainful activity.

    To sum up, the ALJ’s failure to give good reasons for

discounting the opinions in Dr. McClintock’s RFC Questionnaire

also merits a remand.


    3. Dr. Brovender

    The lack of good reasons for discounting the opinions

provided by McCormick’s two treating sources is enough to

warrant a remand.   However, there also appear to be problems

with the ALJ’s evaluation of Dr. Brovender’s opinion.

    In two different spots in his decision, the ALJ described

his evaluation of Dr. Brovender’s opinion and his decision to

give that opinion great weight.    See Tr. 20, 24.   At one point,

the ALJ characterized Dr. Brovender as testifying

    that the testing and physical examinations within the
    record showed that the claimant had a normal pelvis,
    normal right elbow, normal gait, no muscle weakness,
    normal motor, sensory and reflex findings, and normal
    neurological findings except for slight weakness of a
    big toe.

Tr. 24.   Claimant takes issue with the foregoing statement, and

his point is well taken, for two reasons.

    First, it is not so clear that Dr. Brovender actually said

what the ALJ says he said.   With respect to neurological and


                                  23
sensory findings, Dr. Brovender’s testimony consists of the

following:

    In [Exhibit] 12F [Tr. 415-418], he has numbness and
    tingling in his hands and feet with no familiar
    sensory are essentially normal except for a very
    slight decrease of the big toe. Negative for that.
    [Exhibit] 14F [Tr. 425-449], they talk about sensory
    changes with that. . . . He had shoulder pain on the
    right and in [Exhibit] 15F [Tr. 450-467], his
    laboratories, [Exhibit] 16F [Tr. 468-74], his low back
    pain is neurological sensory examination was normal.
    And [Exhibit] 17F, is a form [INAUDIBLE]. The sensory
    is fine, your honor.

    . . . .

    His physical examinations . . . show that his motor
    neurological and sensory examinations were normal, his
    reflexes were normal, he had no sensory changes, he
    had no muscle weakness.

Tr. 45-46, 47.   That testimony is difficult to follow, and the

court does not understand Dr. Brovender’s acknowledgement of a

medical record documenting “talk about sensory changes” in

conjunction with his subsequent statement that “physical

examinations . . . show . . . no sensory changes.”   In light of

that apparent contradiction, and the somewhat garbled nature of

Dr. Brovender’s testimony as reported in the hearing transcript,

the court simply cannot tell whether Dr. Brovender actually said

that McCormick’s sensory and neurological findings were normal.

    However, if Dr. Brovender did say that McCormick’s sensory

and neurological findings were normal (except for weakness in a

big toe), that appears to be a mischaracterization of the



                                24
medical record.    A January 6, 2014, physical examination

resulted in the following finding: “Neurologic: . . . Sensation:

abnormal; toes.”   Tr. 385 (Ex. 7F) (boldface in the original).

That same finding appears in a report on a February 12, 2014,

physical exam.    See Tr. 380 (Ex. 7F).   An April 1, 2014,

physical examination resulted in the following finding:

“Neurologic: . . . Sensation: abnormal, stocking distribution,

glove distribution.”    Tr. 445 (Ex. 14F) (boldface in the

original).10   That same finding appears in reports on physical

exams administered on April 30, and June 26, 2014.     See Tr. 425

(Ex. 14F), 429 (Ex. 14F).    The medical records quoted above

appear to document no fewer than five physical examinations that

resulted in sensory and neurological findings that were

something other than normal.




     10“Stocking distribution refers to a sensory neuropathy of
several peripheral nerves in the limbs wherein there is a loss
of pain, touch, temperature, position and vibration sensation,
accompanied by paresthesia, which is an abnormal touch
sensation, such as burning or prickling, often in the absence of
an external stimulus.” Potter v. Colvin, No. 14-CV-424-PJC,

, at *5 n.9 (N.D. Okla. Aug. 28, 2015) (citing
Dorland’s Illustrated Medical Dictionary, 1287, 1404, 1513, 1718
(31st ed. 2007); see also Cohen v. Astrue, No. 07 Civ.
535(DAB)(HBP), 

, at *8 n.43 (S.D.N.Y. May 17,
2011), R. & R. adopted by 

 (June 28, 2011) (“The
Commissioner states that ‘glove anesthesia is a loss of feeling
in the hands in the area which would be covered by gloves.’”)
(quoting the record; citing Attorney’s Medical Dictionary G-98,
Vol. 3).


                                 25
    In addition, a report on a battery of tests conducted at

the Monadnock Neurology Center includes the following findings:

    1. Essentially normal nerve conduction studies in the
    right upper and lower extremity.

    2. Slight chronic changes in the right tibialis
    anterior - ? Related to old L5 radiculopathy?

    3. There were mild active changes noted in the right
    lower lumbar paraspinal, raising possibility for mild
    active right lower lumbosacral radiculopathy.

Tr. 443 (Ex. 14F).   Without knowing the full ramifications of

those findings, the court feels safe in concluding that the

“slight chronic changes” and “mild active changes” documented in

McCormick’s radiology report fall short of being completely

normal sensory and neurological findings.

    Based upon the foregoing, the court must conclude that to

the extent that Dr. Brovender testified that McCormick’s sensory

and neurological findings were normal, he could only have done

so by ignoring evidence from multiple physical examinations that

uncovered signs of peripheral neuropathy, an impairment that the

ALJ deemed severe but Dr. Brovender did not even mention, much

less identify as a medically determinable impairment.   In light

of the problems with Dr. Brovender’s appraisal of the medical

record, his opinion does not appear to qualify as substantial

evidence in support of the ALJ’s RFC assessment.




                                26
                          IV. Conclusion

      For the reasons described above, the Acting Commissioner’s

motion for an order affirming her decision, document no. 11, is

denied, and McCormick’s motion to reverse that decision,

document no. 9, 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


September 22, 2017

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




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