United States District Court, D. Massachusetts
DAVID M. LINEHAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.
MEMORANDUM AND ORDER
PATTI B. SARIS CHIEF U.S. DISTRICT JUDGE
Acting Commissioner of Social Security has moved, pursuant to
Fed.R.Civ.P. 59(e), for reconsideration of this Court's
December 27, 2017 Memorandum and Order (Dkt. No. 26), which
remanded this matter to the Administrative Law Judge (ALJ).
Defendant asserts that the Court erred in two respects: 1)
Dr. Gray's treatment notes are not “medical
opinions” entitled to “good reasons” from
the ALJ for the weight that she assigned them, 20 C.F.R.
§ 404.1527(c)(2); and 2) any legal error committed was
harmless because consideration of Dr. Gray's records
could not possibly lead the ALJ to a more favorable decision
order to qualify as a “medical opinion, ” a
treatment provider's statement must “reflect
judgments about the nature and severity of [claimant's]
impairment(s), including  symptoms, diagnosis and
prognosis, what [the claimant] can still do despite
impairment(s), and [claimant's] physical or mental
restrictions.” 20 C.F.R. § 404.1527(a)(1). The
Commissioner asserts that Dr. Gray's notes do not reflect
judgments about the nature and severity of Plaintiff's
impairments, but instead “merely regurgitate” his
reported symptoms. Dkt. No. 29 at 3 (citing Francis v.
Comm'r of Soc. Sec., 414 Fed.Appx. 802, 804 (6th
the Commissioner acknowledges that “Dr. Gray's
diagnosis of ‘major depressive disorder' qualifies
as a medical opinion in the broadest sense.” Dkt. No.
29 at 4. Other statements by Dr. Gray also reflect her
professional judgment. See, e.g., R. at 595
(“[Plaintiff] will likely benefit from CBT-based
approaches to help improve emotion regulation
skills.”); R. at 564 (“[Plaintiff is] in a
depressed mood, with flat affect. Other aspects within normal
limits given brain injury.”). The ALJ committed a legal
error when she did not give good reasons, or indeed any
reasons, for the weight assigned to Dr. Gray's medical
opinion. See 20 C.F.R. § 404.1527(c)(2).
the ALJ's failure to comply with 20 C.F.R. §
404.1527(c)(2), if remand “will amount to no more than
an empty exercise” because of “an independent
ground on which affirmance must be entered as a matter of
law, ” then the Commissioner's decision should
stand. Ward v. Comm'r of Soc. Sec., 211 F.3d
652, 656 (1st Cir. 2000). To that end, the Commissioner
argues that Dr. Gray's opinion merely diagnoses Plaintiff
with major depressive disorder, but fails to provide any
assessment of how he is impaired by that depression.
Defendant argues that, as a matter of law, Dr. Gray's
opinion could not, standing alone, constitute the basis for
finding that Plaintiff is disabled. See Sitar v.
Schweiker, 671 F.2d 19, 20-21 (1st Cir. 1982)
(“[S]evere anxiety or depression is not in itself
sufficient to establish eligibility for benefits absent a
proper showing of related functional loss.”).
Gray's records do not exist in a vacuum, however. They
must be viewed in light of Dr. Herman's opinion, which
does assess Plaintiff's functional loss. As to that,
Defendant argues that Dr. Gray's opinion could not
possibly lead the ALJ to reconsider the weight that she
assigned to Dr. Herman's opinion, for two reasons. First,
Defendant asserts that unlike Dr. Gray, “Dr. Herman did
not attribute Plaintiff's cognitive limitations to
depression.” Dkt. No. 29 at 4. Second, Defendant points
out that the ALJ discredited Dr. Herman's opinion due to
perceived inconsistencies within Dr. Herman's own notes
Dr. Herman diagnosed Plaintiff with “post-concussion
symptoms, ” R. at 559, he also opined that Plaintiff
may be depressed and prescribed him anti-depressant
medication. R. 549. Dr. Gray and Dr. Herman report many of
the same physical and cognitive symptoms, and their opinions
corroborate one another. It is plausible that the ALJ will
reconsider her assessment of the intrinsic merits of Dr.
Herman's opinion, in light of Dr. Gray's
sure, it is also possible that the ALJ will assign little
weight to Dr. Gray's opinion and reach the same
conclusion on remand. As acknowledged in the Court's
original Memorandum and Order (Dkt. No. 26 at 13), certain
aspects of Dr. Gray's treatment records, like
Plaintiff's failure to follow through on cognitive
behavior therapy classes, actually militate against
a finding of disability. However, this is not a case where
the “mistake of the administrative body is one that
clearly had no bearing on the . . . substance of the decision
reached.” Kurzon v. U.S. Postal Serv., 539
F.2d 788, 796 (1st Cir. 1976).
of the treating source rule is to function as a procedural
safeguard. See Francis, 414 Fed.Appx. at 805. Where,
as here, the Court cannot ascertain “a clear
understanding of why the ALJ rejected [the treating
doctor's] opinion, ” the goal of ...