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Differ v. Colvin

United States District Court, D. New Hampshire

March 11, 2016

Brandi Gale Differ,
Carolyn Colvin, Acting Commissioner, Social Security Administration Opinion No. 2016 DNH 054


          JOSEPH N. LAPLANTE, District Judge.

         Brandi Gale Differ has appealed the Social Security Administration's ("SSA") denial of her application for disability benefits. An administrative law judge at the SSA ("ALJ") ruled that, despite several severe physical impediments, Differ retains the residual functional capacity ("RFC") to perform jobs that exist in significant numbers in the national economy, and thus is not disabled. See 20 C.F.R. §§ 404.1505(a), 416.905(a). The Appeals Council later denied Differ's request for review, see id. § 404.967, with the result that the ALJ's decision became the final decision on Differ's application, see id. § 404.981. Differ then appealed the decision to this court, which has jurisdiction under 42 U.S.C. § 405(g) (Social Security).

         Differ has moved to reverse the decision, see L.R. 9.1(b), contending that the ALJ erred in his treatment of medical and other opinion evidence at steps two through four of his analysis. The Acting Commissioner of the SSA has cross-moved for an order affirming the ALJ's decision. See L.R. 9.1(e). After careful consideration, the court agrees with Differ that the ALJ erred in weighing the medical opinion evidence, and therefore grants Differ's motion to reverse (and denies the Acting Commissioner's motion to affirm) the ALJ's decision.

         I. Applicable legal standard

         The court limits its review of a final decision of the SSA "to determining whether the ALJ used the proper legal standards and found facts upon the proper quantum of evidence." Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The court will uphold the ALJ's decision if it is supported by "such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotations omitted). Though the evidence in the record may support multiple conclusions, the court will still uphold the ALJ's findings "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion." Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991).

         II. Background

         In assessing Differ's request for disability benefits, the ALJ engaged in the requisite five-step process. See 20 C.F.R. § 416.920. After concluding that Differ had not engaged in substantial gainful activity since the date of her application, March 16, 2012, he analyzed the severity of Differ's impairments. He determined that Differ suffers from two severe physical impairments: obesity and status post open reduction and internal fixation surgery of the right hip. He concluded, however, that Differ's claimed mental impairments - depression and anxiety/post-traumatic stress disorder - were not severe. In doing so, he considered the opinions of two medical experts: Dr. Richard Schnable, Differ's treating psychologist, and Dr. Michael Schneider, the non-examining State agency psychological consultant. The ALJ gave "significant weight" to Dr. Schneider's opinion and "little weight" to Dr. Schnable's, and concluded, based on his own "common sense appraisal of the totality of the evidence, " that Differ did not suffer from any "severe" mental health conditions. Admin R. at 23-24.

         At the third step, the ALJ found that Differ's severe impairments did not meet or "medically equal" the severity of one of the impairments listed in the Social Security regulations. See 20 C.F.R. §§ 416.920(d), 416.925, and 416.926. He did not consider Differ's alleged mental impairments at that step.

         The ALJ then concluded that Differ retained the RFC to perform a full range of sedentary work with several exertional limitations. After applying the same weight to the experts' respective opinions as at the second step, the ALJ crafted an RFC that did not account for any mental impairments. Finally, finding that Differ had not performed any work at substantial gainful activity since 1990, and thus had no past relevant work that she could perform, see 20 C.F.R. § 404.1565, the ALJ continued to step five, where he concluded that Differ could perform jobs that exist in significant numbers in the economy. Therefore, the ALJ found, Differ was not disabled within the meaning of the Social Security Act.

         III. Analysis

         Differ takes issue with the treatment of her alleged mental impairments at each of the second, third, and fourth stages of the ALJ's analysis. In particular, she contends that the ALJ erred by (1) relying on his own "common sense appraisal, " Admin. R. at 4, and the opinion of Dr. Schneider to find that her mental impairments were not "severe" in step two; (2) not considering her mental impairments at all in step three; and (4) improperly weighing the expert evidence when crafting her RFC in step four. As discussed below, any error by the ALJ in his treatment of the opinion evidence at step two may have been harmless; but his treatment of that evidence at step four constitutes reversible error.

         The ALJ first considered the opinion of the non-examining state agency consulting, Dr. Schneider. He afforded Dr. Schneider's opinion "significant weight, " citing Dr. Schneider's conclusion that "there was insufficient evidence to substantiate the presence of [an affected or anxiety-related] disorder.'" Admin. R. at 23-24. The opinions of state agency psychological consultants

can be given weight only insofar as they are supported by evidence in the case record, considering such factors as the supportability of the opinion in the evidence..., the consistency of the opinion with the record as a whole, including other medical opinions, and any explanation for the ...

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