James Garneau v. SSA

                     UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW HAMPSHIRE


James Garneau

       v.                            Case No. 16-cv-448-SM
                                     Opinion No. 

Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration


                              O R D E R


       Pursuant to 

(g), James Garneau moves to

reverse the Acting Commissioner’s decision to deny his

application for Social Security disability insurance benefits

(“DIB”) under Title II of the Social Security Act, 

.   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).   However, the court “must uphold a denial of

social security disability 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)).

     With regard to 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

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



                                   2
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.

     Garneau has worked as a psychiatric aide, snowmaker,

rewinder, bakery manager, sales and delivery person, and truck

driver.   On January 10, 2013, he injured his back at work, while

lifting a dryer.   Shortly thereafter, he was given a diagnosis

of back pain with radiculopathy.1     His medical records include

additional diagnoses of: degeneration of the lumbar

intervertebral disc; mechanical low back pain with significant

nonphysiologic findings; disc derangement and lumbar strain with



     1 Radiculopathy is a “[d]isorder of the spinal nerve roots.”
Stedman’s Medical Dictionary 1622 (28th ed. 2006).


                                  3
disc protrusion; a cognitive disorder; an adjustment disorder;

and a possible learning disability.

        Garneau began receiving workers’ compensation benefits

shortly after his injury.      He applied for DIB in September of

2013.       He claimed that he was disabled as a result of two

medical conditions: (1) degenerative disc disease and disc

protrusion; and (2) an extra vertebrae in his back.

        After Garneau filed his application for DIB, he was

referred to Dr. Elizabeth Hess, for a consultative psychological

examination.2      After she examined Garneau, Dr. Hess prepared a

Comprehensive Psychological Profile.      In it, she gave diagnoses

of: (1) “[c]ognitive disorder, not otherwise specified secondary

to chronic pain with diminished concentration,” Administrative

Transcript (hereinafter “Tr.”) 309; (2) “[a]djustment disorder

with mixed anxiety and depression,” id.; and (3) “[p]ossible

learning disability, not otherwise specified,” 

      In addition,

Dr. Hess gave the following opinions on Garneau’s then-current

level of functioning:

        ACTIVITIES OF DAILY LIVING: This individual needs
        assistance with shopping, cooking, paying bills,
        maintaining his residence, grooming, and hygiene due
        primarily to pain and difficulty with bending or
        sustaining physical activity for any degree of time;

        2
       “A consultative examination is a physical or mental
examination or test purchased for [a claimant] at [the Social
Security Administration’s] request.” 

.



                                     4
     however, he also has difficulty with concentrating and
     needs his girlfriend to help him to remember
     appointments, make financial decisions, etc.

     SOCIAL FUNCTIONING: This individual interacts
     appropriately and communicates effectively with
     others. He does not see others as much as he used to
     due to physical limitations. He does state that he
     becomes irritable at times due to his pain.

     UNDERSTANDING AND REMEMBERING INSTRUCTIONS: This
     individual is capable of understanding and remembering
     basic instructions with the exception of occasional
     latency due to poor concentration. He may have some
     difficulty understanding detailed instructions and
     will have difficulty in remembering them due to poor
     concentration and possibly due to cognitive
     limitations.

     CONCENTRATION AND TASK COMPLETION: This individual
     can maintain attention and concentration for about
     one-half hour. His persistence is limited primarily
     by physical conditions, and also by limited
     concentration. His pace will be very slow. He will
     be slow in remembering what he is to do and keeping
     track of where he is in a task.

     REACTION TO STRESS AND ADAPATION TO WORK OR WORK-LIKE
     SETTINGS: This individual is capable of making simple
     decisions. He is not capable of maintaining regular
     attendance or schedule due to physical concerns
     primarily. He is able to interact appropriately with
     supervisors and others. He does become frustrated and
     irritable when he is not able to do things.

Tr. 308-09.

     The record also includes an assessment of Garneau’s mental

condition by a non-examining consulting psychologist, Dr. Lewis

Lester.   After identifying two mental impairments, mood

disorders and anxiety disorders, Dr. Lester conducted a

psychiatric review technique (“PRT”) assessment based upon


                                 5
Garneau’s medical records.3   Dr. Lester determined that Garneau

had no restrictions on his activities of daily living; had mild

difficulties in maintaining social functioning; had mild

difficulties in maintaining concentration, persistence or pace;

and had no repeated episodes of decompensation, each of extended

duration.   Then, Dr. Lester gave the following explanation for

his PRT assessment:

     Claimant does not allege any mental impairments,
     [medical evidence of record] does not reflect any
     history of mental health diagnosis, treatment, or
     psychiatric medication. When claimant was sent to a
     [consultative examiner] in an effort to establish a
     “Chronic Pain Syndrome”, his self-report of anxiety
     and depression garnered a [consultative examiner]
     diagnosis of Adjustment Disorder with mixed anxiety
     and depression. These self-reported symptoms of
     Anxiety [disorder] and Depressive [disorder] barely
     rise above the level of what are ordinary and expected
     reactions to his physical problems, pain and sequelae;
     [consultative examiner] diagnosis of Cognitive
     [disorder] is not supported by any evidence.
     Associated mental limitations are mild & non-severe by
     [Social Security Administration] standards.

Tr. 87.4

     The record in this case includes approximately 40 documents

authored by six different medical professionals, each of which


     3 The Social Security Administration uses the PRT to
evaluate the severity of mental impairments. See 

.1520a (describing the PRT).

     4 “Sequelae” is the plural of “sequela,” which means “[a]
condition following as a consequence of a disease.” Stedman’s,
supra note 1, at 1752.



                                 6
expresses opinions on Garneau’s physical residual functional

capacity (“RRC”).5    Those documents include, but are not limited

to: (1) a summary of a functional capacity evaluation performed

by an occupational therapist at Androscoggin Valley Hospital;

(2) a report on an independent medical examination performed by

Dr. Daniel O’Neill, for Sedgwick Claims Management Services,

Inc.;6 (3) a Lumbar Spine Medical Source Statement (“Spine

Statement”) completed by Garneau’s primary care provider, Nurse

Amanda Dustin; and (4) a Spine Statement completed by a treating

orthopedist, Dr. Thomas Rock.

     Dr. Rock saw Garneau four times and examined him three

times.    In May of 2015, after Garneau’s most recent visit with

him, Dr. Rock completed a Spine Statement in which he identified

diagnoses of degenerative disc disease and multilevel lumbar

disc protrusion.     He also described the clinical findings

supporting those diagnoses, Garneau’s symptoms, and ten positive

objective signs of Garneau’s condition.    With respect to

functional limitations, Dr. Rock opined that Garneau: (1) could

sit for five minutes at a time before needing to get up; (2)



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

(a)(1).

     6   Sedgwick was managing Garneau’s workers’ compensation
claim.


                                   7
could not stand; (3) could sit and stand/walk for a total of

less than two hours in an eight-hour workday; (4) needed a job

that permits shifting positions at will from sitting, standing,

or walking; (5) needed to walk around during an eight-hour

workday; (6) needed to take unscheduled breaks; (7) could lift

less than 10 pounds, but only rarely; (8) could rarely twist;

(9) was likely to be “off task” for 20 percent of a workday;

(10) was incapable of even “low stress” work; and (11) was

likely to be absent from work more than four days per month as a

result of his impairment or treatment for it.

     Dr. Rock did not examine Garneau in connection with

preparing his Spine Statement, but in an office note he wrote

approximately six months earlier, Dr. Rock documented his

musculoskeletal examination of Garneau:

     On examination he is alert and oriented and in no
     distress. He has stiffness with flexion and extension
     and rotation of the lumbar spine. There is bilateral
     lumbar paravertebral muscle spasm with tenderness. He
     does have stiffness in his walking and lower extremity
     neurologic is intact but he does have radiation of
     pain and some numbness and tingling in the lower left
     leg. Straight leg raising is positive on the left.
     He has maintained strength in the lower leg with
     ability to dorsiflex and plantarflex the left foot.
     He has good circulation and sensation without
     lymphedema.




                                8
Tr. 420.7   In a New Hampshire Workers’ Compensation Medical Form

(“Comp Form”) that Dr. Rock filled out on the same day he wrote

the office note quoted above, he stated that Garneau had no work

capacity and had reached maximum medical improvement.   He

restated those opinions in a Comp Form he filled out on the same

day he completed his Spine Statement in May of 2015.

     After Garneau’s claim was denied at the initial level, he

received a hearing before an Administrative Law Judge (“ALJ”).

At the hearing, the ALJ took testimony from a vocational expert

(“VE”), to whom she posed a series of hypothetical questions.

The ALJ framed her second hypothetical this way:

     I want you to assume . . . a younger individual with a
     12th grade education, and past work as described. For
     the purposes of this hypothetical, I want you to
     assume that the individual can perform sedentary work
     as defined by the [Dictionary of Occupational Titles].
     But after one hour of sitting the individual would
     need to stand without leaving the work station and
     stretch for two to three minutes. I want you to
     assume that the individual would have to avoid
     climbing ladders, ropes, and scaffolds and crouching
     would be limited to a rare basis, which I am defining
     as less than or equal to 10 percent of the work day.
     I want you to assume that other postural activities
     could be performed on an occasional basis. I want you
     to assume that reaching would be limited to frequently

     7 “Dorsiflexion” is the “[u]pward movement (extension) of
the foot or toes or of the hand or fingers.” Dorland’s, supra
note 1, at 580. “Plantarflexion” is “bending the foot or toes
toward the plantar surface.” Id. at 753. “Lymphedema” is
“[s]welling (especially in subcutaneous tissues) as a result of
obstruction of lymphatic vessels or lymph nodes and the
accumulation of large amounts of lymph in the affected region.”
Id. at 1127.


                                 9
     as opposed to constantly. In addition, I want you to
     assume that lifting objects from the floor would be
     limited to a rare basis again, defined as less than or
     equal to 10 percent of the work day. In addition, the
     individual would have to avoid working on slippery wet
     or elevated flooring and would also have to avoid
     erratically moving surfaces.

Tr. 71-72.   According to the VE, a person with the foregoing RFC

could perform the jobs of surveillance systems monitor,

telephone solicitor, and fishing reel assembler.   The VE

testified that those same jobs would be available if the

hypothetical was amended to include these limitations:

     [T]he individual would be limited to uncomplicated
     tasks, which I have defined as tasks that typically
     can be learned in 30 days or less. And due to
     symptoms, concentration, persistence, and pace would
     be diminished. But productivity would not be more
     than 10 percent below the norm.

Tr. 73-74.   The VE further testified that the same jobs could be

performed by the person in the ALJ’s hypothetical if that person

also needed to stand and stretch every 30 minutes and was

limited to occasional overhead lifting.   However, the VE

testified that no jobs would be available to the person in the

ALJ’s hypothetical if he were to be absent from work at least

three days a month,8 or if his “concentration, persistence, and

pace was diminished to the point where productivity was 15 to 20

percent below the normal,” Tr. 74.


     8 According to the VE, the customary tolerance for absence
from work is “[n]o more than two days a month.” Tr. 74


                                10
     In response to questioning by claimant’s attorney, the VE

testified that the sedentary jobs he identified could be

performed by a person who “was limited to a maximum lift of 10

pounds and could only lift 12 inches off the ground to shoulder

level only, would need frequent postural changes every 15

minutes, was unable to crouch, balance, kneel, squat, or climb.”

Tr. 78.   But, he further testified that no jobs could be

performed by a person who: (1) “needed to change positions every

15 minutes and have a five minute break,” Tr. 79; or (2) was

limited to a total of two hours per day of sitting, standing,

and walking.

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

gave little weight to Dr. Rock’s opinions, little weight to Dr.

Hess’s report, and some weight to “the administrative findings

of fact made by the state agency non-examining medical and

psychological consultants,” Tr. 29.   The ALJ’s decision also

includes the following relevant findings of fact and conclusions

of law:

     3. The claimant has the following severe impairment:
     degenerative lumbar disc disease with evidence of
     annular tear (20 CFR 404.1520(c)).

     . . . .

     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



                                11
     in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
     404.1520(d), 404.1525 and 404.1526).

     . . . .

     5. After careful consideration of the entire record,
     the undersigned finds that the claimant has the
     residual functional capacity to perform sedentary work
     as defined in 20 CFR 404.1567(a) except that after one
     hour of sitting, he would need to stand without
     leaving the work station and stretch for two to three
     minutes. He would need to avoid climbing ladders,
     ropes, or scaffolds. He could crouch on only a rare
     basis (less than or equal to 10% of the workday). He
     could perform other postural activities on an
     occasional basis. He could reach on a frequent, but
     not constant, basis. He could lift objects from the
     floor on only a rare basis (again, meaning less than
     or equal to 10% of the workday). He needs to avoid
     working on slippery, wet, or elevated flooring, as
     well as erratically moving surfaces. He is limited to
     performing uncomplicated tasks (typically learned in
     30 days or less); and due to symptoms, his ability to
     concentrate, persist and maintain pace would be
     diminished, but his productivity would not be more
     than 10% below the norm.

     . . . .

     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 and 404.1569(a)).

Tr. 17, 19, 20, 30.   The ALJ concluded by finding that Garneau

was not disabled because he was capable of performing the three

jobs identified by the VE.




                                12
                          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.   

(a)(1)(A)-(D).   The only question

in this case is whether the ALJ correctly determined that

Garneau was not under a disability from January 10, 2013,

through July 27, 2015.

     To decide whether a claimant is disabled for the purpose of

determining eligibility for disability insurance benefits, an

ALJ is required to employ a five-step process.   See 

.

     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.




                                13
Seavey v. Barnhart, 

 (1st Cir. 2001) (citing 

, which outlines the same five-step process as

the one prescribed in 

).

     The claimant bears the burden of proving that he is

disabled.   See Bowen v. Yuckert, 

 (1987).   He

must do so by a preponderance of the evidence.   See Mandziej v.

Chater, 

 (D.N.H. 1996) (citing Paone v.

Schweiker, 

 (D. Mass. 1982)).   Finally,

     [i]n assessing a disability claim, the [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. Garneau’s Claims

     Garneau claims that the ALJ erred by: (1) determining that

he did not have a severe mental impairment; (2) failing to give

proper weight to the opinions of Dr. Rock and Nurse Dustin; (3)

crafting an RFC based upon her own lay interpretation of raw

medical data rather than the opinion of a medical source; (4)

concluding that he had the RFC to perform sustained work-related

activities in a work setting on a regular and continuing basis;



                                14
and (5) relying upon VE testimony given in response to a flawed

hypothetical question.   Garneau’s first claim is without merit,

but taken in combination, his criticisms of the ALJ’s assessment

of his RFC warrant a remand.

          1. Step Two

     Garneau claims that at Step 2 of the sequential evaluation

process, the ALJ erred by failing to find that he had a severe

mental impairment.   More specifically, he frames his claim this

way: “The ALJ erred in according Dr. Hess’ report ‘little

weight’ (Tr. 26), and minimizing the interrelated impact of pain

and mental health symptoms on [his] ability to maintain the

attention and concentration needed for any work.”    Cl.’s Mem. of

Law (doc. no. 8-1) 19.   The court does not agree.

     It is well established that “the Step 2 severity

requirement is . . . a de minimis policy, designed to do no more

than screen out groundless claims,” McDonald v. Sec’y of HHS,

 (1st Cir. 1986) (citing Social Security

Ruling (“SSR”) 85-28, 

 (S.S.A. 1985)), and that “a

finding of ‘non-severe’ is only to be made where ‘medical

evidence establishes only a slight abnormality or combination of

slight abnormalities which would have no more than a minimal

effect on an individual’s ability to work,’” 

 (quoting SSR

85-28, 

, at *3).   However, “[e]rrors at Step Two



                                15
are harmless as long as the ALJ found at least one severe

impairment, continued on with the sequential analysis, and

considered the effect of all impairments on the claimant’s

functional capacity.”   Therrien v. Berryhill, No. 16-cv-185-LM,

, at *4 (D.N.H. Apr. 21, 2017) (citing Fortin v.

Colvin, No. 3:16-cv-30019-KAR, 

, at *10 (D. Mass.

Mar. 31, 2017)).

     Here, after the ALJ deemed claimant’s mental impairments to

be non-severe, she found claimant’s back condition to be a

severe impairment, and continued on with the sequential

evaluation process.   It is beyond dispute that she considered

the effects of claimant’s non-severe mental impairment(s), given

both the limitation to uncomplicated tasks she included in

claimant’s RFC and her stipulation that claimant had a

diminished ability to concentrate, persist and maintain pace.

No more was necessary; if the ALJ erred at Step 2 by failing to

find that claimant had a severe mental impairment, any such

error was rendered harmless by the manner in which she

considered claimant’s mental impairment(s) thereafter.

     Beyond that, the ALJ’s determination that claimant did not

have a severe mental impairment is supported by substantial

evidence in the form of the conclusion that Dr. Lester reached

after conducting his PRT assessment.   For his part, claimant



                                16
does not argue that Dr. Hess’s report establishes a severe

impairment under 

.1520a(c)(4), or fails to

establish an impairment that is non-severe under §

404.1520a(d)(1).    Moreover, while claimant hints at a Step 2

argument based upon the ALJ’s purportedly erroneous evaluation

of Dr. Hess’s opinions, he does not actually make such an

argument.

     In sum, Garneau’s claim that the ALJ erred at Step 2

provides no basis for a remand.

            2. Claimant’s Physical RFC

     According to the VE, Garneau’s ability to work would be

completely precluded by any of one of four limitations presented

to him as Garneau’s, including three or more absences from work

each month.   While the ALJ did not specify in her RFC the number

of days per month that Garneau was likely to be absent from

work, she necessarily determined that he would not be absent

more than two days a month, given the VE’s testimony that the

customary tolerance for absence was “[n]o more than two days a

month.”   Tr. 74.

     In his Spine Statement, Dr. Rock opined that Garneau would

be absent from work more than four days per month due to his

back condition or treatment for it.      If the ALJ had credited




                                  17
that opinion, then she would have determined that Garneau was

disabled.   But she gave that opinion “little weight.”

       Under the applicable regulations, the opinions of treating

sources such as Dr. Rock 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 claimant’s] case record.”

(c)(2).   When an ALJ does not give

controlling weight to a treating source’s opinion, she must

still determine how much weight to give that opinion by

considering the factors listed in 

(c)(2)-

(6).   After an ALJ considers those 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 SSR 96-2p, 

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

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

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

opinion.”   

(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


                                 18
     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).    Here, the ALJ did not give good reasons

for discounting Dr. Rock’s opinion and, as a result, her

decision is not supported by substantial evidence.

     The ALJ’s decision seems to suggest that the opinions in

Dr. Rock’s May 2015 Spine Statement are “of no probative value,”

Tr. 28, at least in part because that document “reflects quite

clearly that [Dr. Rock] was (as the claimant testified)

irritated that he had to complete yet another report on his

patient’s behalf,” 

    It is not clear what bearing Dr. Rock’s

ill temper might have on the substantive weight the ALJ was

obligated to give his opinion and, if anything, it might tend to

explain the terseness of some of Dr. Rock’s responses.

     With respect to the opinion Dr. Rock gave in his May 2015

Spine Statement concerning Garneau’s likely absence from work,

the ALJ provided the following evaluation: “He states the

claimant will be absent more than four days per month, but notes

no change in the claimant’s condition or diagnosis since the day

he first evaluated him.”   Tr. 28.     That is not a good reason for

discounting Dr. Rock’s opinion.


                                  19
        For one thing, the ALJ did not explain the logic behind her

evaluation, and it is not apparent to the court.      Whether or not

Garneau’s condition or diagnosis ever changed during the course

of his treatment with Dr. Rock has no discernable bearing on the

reliability of Dr. Rock’s opinion.     Moreover, even if the ALJ’s

premise was not problematic, it is also directly contradicted by

the record.    In April of 2013, Dr. Rock reported: “Straight leg

raising isn’t particularly positive.”     Tr. 280.   In May of 2013,

he reported: “Straight leg raising isn’t particularly positive.”

Tr. 290.    In November of 2014, he reported: “Straight leg

raising is positive on the left.”      Tr. 420.   So, over the course

of his treatment relationship with Garneau, Dr. Rock did note a

change in Garneau’s condition in the form of increasingly

positive straight-leg raising test results.       Moreover, that

change is not insignificant; a positive straight-leg raising

test is one of the conditions that must be found to support a

determination that a claimant has a listing-level disorder of

the spine.    See 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing

1.04.

        In addition to her specific criticism of Dr. Rock’s opinion

that clamant would be absent from work more than four days a

month, the ALJ gave a more general evaluation:

        The undersigned finds the opinions of Ms. Dustin and
        Dr. Rock conclusory and against the weight of the


                                  20
     record as a whole. The conclusions reached by these
     treating sources are not supported by medically
     acceptable signs, symptoms, and/or laboratory
     findings, and are further based almost entirely on the
     claimant’s subjective complaints and out of proportion
     to the objective evidence obtained during and for the
     course of treatment. There are no treatment records
     to substantiate such degrees of limitation. The
     undersigned has evaluated this evidence and finds that
     even though these reports are from treating sources,
     these opinions are inconsistent and not supported by
     the medical evidence as a whole. Therefore, these
     reports . . . are accorded little weight.

Tr. 28.    With respect to the specific opinion at issue, those

are not good reasons.

     First of all, while the ALJ says that Dr. Rock’s opinion is

“not supported by medically acceptable signs, symptoms, and/or

laboratory findings,” Tr. 28, he expressed that opinion on a

form in which he also listed the following “positive objective

signs” of Garneau’s back impairment:

     Reduced range of motion (“stiff low back”), Positive
     supine straight leg raising test (Left at 40°, Right
     at 40°), Positive seated straight leg raising test,
     Abnormal gait, Sensory loss, Tenderness, Swelling,
     Muscle spasm, Muscle atrophy, and Weight change.

Tr. 537.   To place those signs in context, the court notes that

degenerative disc disease qualifies as a listed impairment if it

results in compromise of a nerve root and is accompanied by:

          Evidence of nerve root compression characterized
     by neuro-anatomic distribution of pain, limitation of
     motion of the spine, motor loss (atrophy with
     associated muscle weakness or muscle weakness)
     accompanied by sensory or reflex loss and, if there is



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     involvement of the lower back, positive straight-leg
     raising test (sitting and supine).

20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.04A.

     Not only did Dr. Rock identify medical signs to support the

opinion he gave in his Spine Statement, the office note he wrote

in November of 2014 reports: (1) “stiffness with flexion and

extension and rotation of the lumbar spine,” Tr. 420; (2)

“stiffness in his walking,” id.; (3) “radiation of pain and some

numbness and tingling in the lower left leg,” id.; and (4)

positive straight-leg raising, see 

   Given those findings,

viewed in light of the criteria for Listing 1.04, it is

difficult to credit the ALJ’s determination that Dr. Rock’s

opinion was not substantiated by objective evidence obtained

during the course of treatment and documented in Garneau’s

treatment records.   In short, the purported lack of support for

Dr. Rock’s opinion is not a good reason for discounting it

because there was record support.

     Similarly unpersuasive is the ALJ’s determination that Dr.

Rock’s opinion was inconsistent with the record as a whole.

While the record in this case includes a host of opinions, there

is only one other opinion regarding the number of days that

Garneau was likely to be absent from work: Nurse Dustin’s

opinion, expressed in her Spine Statement, that Garneau was

likely to be absent from work more than four days a month.    On


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this point, Dr. Rock’s opinion and Nurse Dustin’s opinion are

not just consistent; they are identical.9   Moreover, while both

Dr. O’Neill and the occupational therapist at Androscoggin

Valley Hospital who performed Garneau’s functional capacity

evaluation provided extensive opinions, neither of them

addressed the question of absence from work.   So, inconsistency

with the record as a whole is not a good reason for discounting

Dr. Rock’s opinion on absence from work.

     And, indeed, given the lack of any on-point opinion to the

contrary, it would appear that by determining that Garneau would

be absent from work two days a month or fewer, the ALJ may have

run afoul of the rule that generally precludes ALJs from

interpreting raw medical data in functional terms and

determining a claimant’s RFC without support from an expert

opinion.   See Durgin v. Berryhill, No. 16-cv-451-SM, 

, at * (D.N.H. July 24, 2017) (citing Nguyen v. Chater,



     9 In addition, Nurse Dustin’s Spine Statement includes a
list of positive objective signs that is very similar to Dr.
Rock’s list:

     Reduced range of motion (“limited trunk [ILLEGIBLE]
     flexion of back neg extension”), Positive supine
     straight leg raising test (Left at 20°, Right at 40°),
     Positive seated straight leg raising test, Abnormal
     gait, Tenderness, Crepitus, Muscle spasm, Muscle
     weakness, and Impaired sleep.

Tr. 526.


                                23


 (1st Cir. 1999); Santiago v. Sec’y of HHS, 

 (1st Cir. 1991)), R. & R. adopted by 

(Aug. 9, 2017).   Be that as it may, inconsistency with the

record as a whole is not a good reason for discounting Dr.

Rock’s opinion on Garneau’s likely absence from work.

     To sum up, the ALJ testified that absence from work three

or more days a month would preclude all work.   The ALJ did not

give good reasons for discounting Dr. Rock’s opinion that

Garneau was likely to miss four or more days of work a month.

Accordingly, this matter must be remanded.

     Finally, the court notes that Garneau’s medical records

appear to document most if not all of the findings necessary to

support a determination that Garneau’s degenerative disc disease

qualifies as a listed impairment.    On remand, the Acting

Commissioner may wish to consider obtaining a consultative

physical examination for the purpose of ascertaining whether

claimant’s degenerative disc disease qualifies as a listing-

level disorder of the spine.

                          IV. Conclusion

     For the reasons given, the Acting Commissioner’s motion for

an order affirming her decision, document no. 10, is denied, and

Garneau’s motion to reverse that decision, document no. 8, is

granted to the extent that the case is remanded to the Acting



                                24
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.

                               __________________________
                               Steven McAuliffe
                               United States District Judge

October 10, 2017

cc:   Ruth D. Heintz, Esq.
      Robert J. Rabuck, AUSA




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