United States District Court, D. New Hampshire
ORDER ON APPEAL
JOSEPH
N. LAPLANTE UNITED STATES DISTRICT JUDGE.
Richard
Paul Meldrem has appealed the Social Security
Administration's (“SSA”) denial of his
application for a period of disability and disability
insurance benefits. An administrative law judge at the SSA
(“ALJ”) ruled that, despite the severe
impairments of “degenerative disc disease of the lumbar
spine and degenerative joint disease bilateral ankles status
post remote surgery, ” Meldrem 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 Meldrem's
request for review, see id. § 404.967, with the
result that the ALJ's decision became the final decision
on his application, see id. § 404.981. Meldrem
then appealed the decision to this court, which has
jurisdiction under 42 U.S.C. § 405(g) (Social
Security).
Meldrem
has moved to reverse the decision, see L.R. 9.1(b),
contending that the ALJ erred: (1) in his evaluation of the
medical evidence from Meldrem's treating physician and
the State agency reviewer; (2) in his evaluation of
Meldrem's subjective complaints and credibility; and (3)
at step five of the process by relying on testimony from the
Vocational Expert absent evidence about the transferability
of Meldrem's skills. 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 grants Meldrem'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[1]
The ALJ
invoked the requisite five-step sequential evaluation process
in assessing Meldrem's request for disability and
disability insurance benefits. See 20 C.F.R. § 416.920.
After determining that Meldrem had not engaged in substantial
gainful activity after the alleged onset date of his
disability, March 31, 2012, the ALJ analyzed the severity of
Meldrem's impairments. At this second step, the ALJ
concluded that Meldrem had severe impairments: degenerative
disc disease of the lumbar spine and degenerative joint
disease bilateral ankles status post remote
surgery.[2]
At the
third step, the ALJ found that Meldrem'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. §§ 404.1520(d),
404.1525, and 404.1526. After reviewing the medical evidence
of record, Meldrem's own statements, and the opinions,
among others, of Meldrem's treating physician, Dr. Ajay
Sharma, and a non-examining state agency physician, Dr.
Jonathan Jaffe, the ALJ concluded that, Meldrem retained the
RFC to perform light work, “except that he can lift and
carry 20 pounds occasionally and 10 pounds frequently, can
stand and walk for 3 hours in an 8 hour day and sit for 6
hours in an 8 hour day, can use his hands and feet without
limitation and can occasionally perform postural
activities.”[3] Finding that, even limited in this manner,
Meldrem was able to perform jobs that exist in significant
numbers in the national economy, the ALJ concluded his
analysis and found that Meldrem was not disabled within the
meaning of the Social Security Act.
III.
Analysis
Among
other arguments, Meldrem contends that ALJ erred when he
“accorded substantial weight” to the opinion of
Dr. Jaffee, the state agency physician who reviewed
Meldrem's medical records, but did not examine or treat
him.[4]
The ALJ afforded that weight to Dr. Jaffe's opinion, and
adopted that opinion in significant part into Meldrem's
RFC, [5] on the sole basis that the opinion was
“consistent with the objective clinical and test
findings documented in the evidence of
record.”[6]
Dr.
Jaffe conducted his review on the record as it existed on
October 9, 2013. Dr. Jaffe did not, therefore, review several
records created after that date -- including a January 16,
2014 neuro-surgical evaluation, a June 12, 2014 EMG test,
documentation of epidural steroid injections given to Meldrem
on November 12, 2014, and records from the PainCare Centers
of Merrimack dated December 16, 2014.[7] Meldrem contends that the
ALJ erred by according “substantial weight” to
Dr. Jaffe's opinion, on the basis that it was consistent
with the medical evidence of record, when Dr. Jaffe did not
review the entire record.
“[I]t
‘can indeed be reversible error for an administrative
law judge to rely on an RFC opinion of a non-examining
consultant when the consultant has not examined the full
medical record.'” Brown v. Colvin, 2015
DNH 141, 6-7 (quoting Ferland v. Astrue, 2011 DNH
169, 11 (McAuliffe, J.)). Of course, “the fact that an
opinion was rendered without the benefit of the entire
medical record does not, in and of itself, preclude an ALJ
from giving significant weight to that opinion.”
Coppola v. Astrue, 2014 DNH 33, 23-24. An ALJ may
yet rely on such an opinion “where the medical evidence
postdating the reviewer's assessment does not establish
any greater limitations, or where the medical reports of
claimant's treating providers are arguably consistent
with, or at least not ‘clearly inconsistent' with,
the reviewer's assessment.” Ferland, 2011
DNH 169 at 11 (internal citations omitted).
Here,
the ALJ relied on Dr. Jaffe's opinion on the grounds that
it was “consistent with the objective clinical and test
findings documents in the evidence of
record.”[8] It is unclear whether the ALJ included the
evidence post-dating Dr. Jaffe's assessment in that
rather cursory exposition. Nor did the ALJ more specifically
address whether the evidence post-dating Dr. Jaffe's
review established any greater limitations or was even
arguably consistent with Dr. Jaffe's assessment. Cf.
Brown, 2015 DNH 141, 7-8 (affirming ALJ's
reliance on non-examining medical source where ALJ found
post-dating evidence “remain[ed] consistent with the
record in its entirety”); Ferland, 2011 DNH
169, 12 (affirming ALJ's reliance on non-examining
medical source where ALJ concluded that the opinion was
consistent with the post-dating evidence). Because the ALJ
accorded substantial weight to, and in large part adopted,
the opinion of Dr. Jaffe without clearly addressing its
consistency (or lack thereof) with the evidence post-dating
that opinion, the court reverses the ALJ's decision and
remands this case to the SSA for further consideration.
IV.
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