United States District Court, D. New Hampshire
ORDER ON APPEAL
N. LAPLANTE, District Judge.
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).
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.
Applicable legal standard
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).
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.
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.
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.
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.
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
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