United States District Court, D. New Hampshire
Darlene M. Daniele, Esq.
REPORT AND RECOMMENDATION
K. Johnstone, United States Magistrate Judge.
to 42 U.S.C. § 405(g), Nanceann Law moves to reverse the
Acting Commissioner's decision to deny her application
for Social Security disability insurance benefits, or DIB,
under Title II of the Social Security Act, 42 U.S.C. §
423. The Acting Commissioner, in turn, moves for an order
affirming her decision. For the reasons that follow, this
matter should be remanded to the Acting Commissioner of the
Social Security Administration (“SSA”) for
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). 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, 76 F.3d 15, 16
(1st Cir. 1996) (per curiam) (quoting Sullivan v.
Hudson, 490 U.S. 877, 885 (1989)).
parties have submitted a Joint Statement of Material Facts.
That statement, document no. 14, is part of the court's
record and will be summarized here, not repeated in full.
born on May 3, 1960. Thus, the SSA considers her to have
turned 55 on May 2, 2015. See Administrative Transcript
(hereinafter “Tr.”) 6. Law last worked in October
of 2012, when her one-year contract as a strategic-planning
consultant was not renewed. In the Disability Report she
filed with the SSA, she reported that her contract was not
renewed as a result of performance issues, which she
described as resulting from her being “in a fog most of
the time.” Tr. 168. Law has been diagnosed with
pachymeningitis,  fibromyalgia,  anxiety disorder not
otherwise specified, irritable bowel syndrome, memory
loss/disturbance, asthma, and a cognitive impairment.
applied for DIB in April of 2014. In her application, she
claimed that she became disabled on January 30, 2013, as a
result of: Lyme disease (post treatment), fibromyalgia,
chronic pain and fatigue, chronic cough/asthma,
COPD/shortness of breath,  pachymeningitis, bilateral fluctuating
hearing loss, sleep apnea, hystadelia,  and severe
allergies to various environmental conditions, foods, and
dyes. The record includes one opinion on Law's physical
residual functional capacity (“RFC”),
which was prepared in August of 2014 by Dr. Hugh Fairley, a
non-examining state-agency consultant who reviewed Law's
medical records. Dr. Fairley, in turn, found that Law had the
RFC to perform light-duty work, with some postural and
denied Law's application. Thereafter, she received a
hearing before an Administrative Law Judge
(“ALJ”). About a week before Law's hearing,
the SAA received 251 pages of Law's medical records,
covering a period from 2007 through 2015. See Tr. 527-777.
There is no suggestion in the record that Dr. Fairley had
reviewed any of those records when he assessed Law's RFC
in August of 2014.
Law's hearing, the ALJ issued an unfavorable decision in
which he found that Law: (1) had three severe physical
impairments (asthma, fibromyalgia, and obesity) but had no
severe mental impairments; (2) did not have an impairment or
combination of impairments that met or medically equaled the
severity of any of the impairments listed in the applicable
SSA regulations; (3) had the residual functional capacity to
perform her past work as a buyer-planner; and (4) also had
the RFC to perform the jobs of office worker, information
clerk, and telephone clerk/ordering clerk.
support of his RFC assessment, the ALJ indicated that he gave
great weight to Dr. Fairley's August 2014 opinion on
Law's physical RFC. However, while the ALJ made nearly a
dozen references to the medical evidence that was submitted
to the SSA just before Law's hearing, see Tr. 78, 79, 82,
83, he did not acknowledge that Dr. Fairley had not reviewed
that evidence, nor did he address the question of whether any
of that evidence was material to assessing Law's
limitations or materially changed the record on which Dr.
Fairley had based his opinion.
event, based on the findings described above, the ALJ
determined that Law had not been under a disability from
January 30, 2013, through April 22, 2016, which was the date
of the ALJ's decision.
appealed the ALJ's decision. The SSA's Appeals
Council (“AC”) adopted some parts of it and
disagreed with others. Specifically, the AC disagreed with
the ALJ's finding that Law had no severe mental
impairments, and found that she had two: anxiety and
depression. Even so, the AC adopted the ALJ's finding
that Law did not have an impairment or combination of
impairments that met or medically equaled the severity of a
listed impairment. However, the AC revised Law's RFC by
adding a limitation based upon its finding that Law suffered
from anxiety and depression. In light of its revision of RFC,
the AC determined that Law could not perform her previous
work but could perform the jobs of office worker, information
clerk, and telephone clerk/ordering clerk. Unlike the ALJ,
the AC said nothing about the amount of weight it gave Dr.
Fairley's opinion but, like the ALJ, the AC did not
address the question of whether any of the evidence that was
submitted to the SSA just before Law's hearing was