United States District Court, D. New Hampshire
Barbadoro United States District Judge.
Swain moves to reverse the decision of the Acting
Commissioner of the Social Security Administration
(“SSA”) to deny his applications for Social
Security disability insurance benefits, or DIB, under Title
II of the Social Security Act, 42 U.S.C. § 423, and for
supplemental security income, or SSI, under Title XVI, 42
U.S.C. § 1382. 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.
Standard of Review
applicable standard of review in this case provides, in
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 . . . .
42 U.S.C. § 405(g) (setting out standard of review for
decisions on claims for DIB); see also 42 U.S.C. §
1383(c)(3) (applying § 405(g) to SSI decisions).
However, I “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, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam)
(quoting Sullivan v. Hudson, 490 U.S. 877, 885
parties have submitted a Joint Statement of Material Facts.
That statement, document no. 8, is part of the court's
record and will be summarized here, not repeated in full.
graduated from Boston University in 2011. He remained in
Boston until he moved in with his parents in October of 2012.
In January of 2017, Swain was working: (1) four hours a week
as a math tutor; (2) five hours a week as a classroom
paraprofessional at the school where his mother worked as a
nurse; and (3) 10 hours a week as a recess monitor, also at
his mother's school. At the hearing he received after the
SSA denied his applications, Swain testified that he was late
for his recess-monitor job two or three times a week, but
that the school accommodated his inability to get to work on
November of 2011, Swain saw his primary-care provider, Dr.
Joseph Nosiff, complaining of depression. Dr. Nosiff gave
Swain a diagnosis of “depressive disorder not elsewhere
classified, ” Administrative Transcript (hereinafter
“Tr.”) 362, and later prescribed him
anti-depressants. In addition to receiving medication for his
mental impairments from both Dr. Nosiff and a psychiatrist,
Swain has also received counseling and therapy from
psychologists and psychiatrists.
of 2013, Swain was picked up by the police, who found him
wandering the streets in the middle of the night. They
transported him to a hospital emergency room where he was
diagnosed with recurrent severe major depressive disorder,
without psychotic features.
of 2013, Dr. Bruce Altman, a psychologist, referred Swain to
Dr. Karen Pearson for psychological testing. In the summary of
her Psychological Testing Report, Dr. Pearson stated:
[W]hat is seen is supportive of a Major Depressive Episode
without psychotic features in a young man with Generalized
Anxiety Disorder. There is a situational piece to Ryan's
current dysfunction and thus an Adjustment Disorder with
Mixed Anxiety and Depression may layer on top of that which
is more biologically based. Finally . . . it would appear
that Ryan has prominent dependent, schizotypal and obsessive
compulsive personality features.
August of 2013, Swain filed applications for DIB and SSI,
claiming that he had been disabled since July of 2011 as a
result of depression, anxiety, attention-deficit disorder,
and obsessive-compulsive disorder.
December of 2015, Dr. Edward Martin, a non-examining
state-agency psychological consultant, reviewed Swain's
medical records, including a November 2015 Mental Impairment
Questionnaire completed by Dr. Christianna Skoczek, a
treating psychologist. Based upon his review of those
records, Dr. Martin performed a psychiatric review technique
(“PRT”) assessment. In performing the PRT, Dr. Martin
considered two impairments, affective disorders and anxiety
disorders. He determined that Swain had: (1) mild
restrictions in his activities of daily living; (2) mild
difficulties in maintaining social functioning; (3) mild
difficulties in maintaining concentration, persistence or
pace; and (4) no repeated episodes of decompensation, each of
extended duration. Based upon those findings, Dr. Martin
determined that neither of Swain's two mental impairments
was severe enough to qualify as a “listed”
impairment under the applicable SSA regulations, and he also
concluded that Swain's impairments did not even meet the
lesser standard under which an impairment qualifies as
severe. See Tr. 89, 99. Finally, Dr. Martin did
not assess Swain's mental residual functional capacity
(“RFC”), presumably because he had found that Swain
had no severe mental impairments.
December of 2015, the SSA denied Swain's claims. He
requested a hearing before an Administrative Law Judge
(“ALJ”), and one was scheduled for January of
December of 2016, Dr. Skoczek, who had treated Swain twice a
week since January of 2015, completed a form captioned
“Mental Impairment Questionnaire (RFC &
Listings).” She indicated diagnoses of major depressive
disorder and anxiety.
respect to the criteria the SSA uses to determine whether
those impairments are severe enough to qualify as listed
impairments, Dr. Skoczek found that Swain had: (1) marked
restrictions in his activities of daily living; (2) marked
difficulties in maintaining social functioning; (3) frequent
deficiencies in maintaining concentration, persistence or
pace; and (4) continual episodes of deterioration or
decompensation in work or work-like settings.
respect to Swain's mental RFC, Dr. Skoczek opined that he
had: (1) an unlimited or very good capacity for one of 16
mental abilities and aptitudes necessary to do unskilled
work; (2) a good capacity for eight of them; (3) a fair
capacity for four of them; and (4) a variable capacity for
the remaining two. With respect to the five mental abilities
and aptitudes necessary to perform particular types of jobs,
Dr. Skoczek opined that Swain had a fair to good capacity for
each of them. Finally, Dr. Skoczek opined that Swain would be
absent from work more than three times a month because of his
mental impairments or treatment for them.
January of 2017, Dr. Richard Naimark, a psychiatrist who had
treated Swain monthly since March of 2013, completed a Mental
Residual Functional Capacity Assessment on Swain. With
respect to understanding and memory, Dr. Naimark opined that
Swain had moderate limitations in one of three listed
abilities and marked limitations in the other
With respect to sustained concentration and persistence, Dr.
Naimark opined that Swain had moderate limitations in one of
eight listed abilities, marked limitations in four abilities,
and extreme limitations in the remaining three. With respect to
social interaction, Dr. Naimark opined that Swain had mild
limitations in one of five listed abilities, marked
limitations in three abilities, and extreme limitations in
the remaining ability. With respect to adaptation, Dr.
Naimark opined that Swain had marked limitations in one of
five listed abilities and extreme limitations in the other
four. Finally, he opined that Swain's limitations would
interfere with his ability to work on a regular and sustained
basis at least 20 percent of the time, and that he would miss
“many” days of work each month because of his
mental impairments or treatment for them.
before his hearing, Swain submitted several pieces of
evidence to the ALJ, only some of which he accepted, but
because the ALJ's decision on that matter is not a
subject of claimant's appeal, there is no need to
describe that evidence.
Swain's hearing, the ALJ took testimony from a vocational
expert (“VE”), to whom the ALJ posed three
hypothetical questions. In ...