Jenkins v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Shane William Jenkins
v. Civil No. 18-cv-672-JD
Opinion No. 2018 DNH 235
Nancy A. Berryhill,
Acting Commissioner
Social Security Administration
O R D E R
Shane William Jenkins seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Acting Commissioner of
Social Security that denied his application for disability
insurance benefits. In support, Jenkins contends that the
Administrative Law Judge (“ALJ”) erred in assessing his residual
functional capacity which caused an erroneous conclusion that he
is not disabled. The Acting Commissioner moves to affirm.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.” Nguyen v. Chater,
172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ’s
factual findings as long as they are supported by substantial
evidence. § 405(g). Substantial evidence is “more than a
Case 1:18-cv-00672-JD Document 11 Filed 11/28/18 Page 1 of 11

2
scintilla of evidence” but less than a preponderance. Purdy v.
Berryhill, 887 F.3d 7, 13 (1st Cir. 2018). The court must
affirm the ALJ’s findings, even if the record could support a
different conclusion, as long as “a reasonable mind, reviewing
the evidence in the record as a whole, could accept it as
adequate to support [the ALJ’s] conclusion.” Irlanda Ortiz v.
Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.
1991) (internal quotation marks omitted); accord Purdy, 887 F.3d
at 13.
Background1
In his application, Jenkins claimed a disability onset date
of March 1, 2015, when he was forty-four years old. Jenkins
went to college for three years. He served in the army, with
combat duty in Iraq. He previously has worked as a lead
purification associate. He claimed disability due to post-
traumatic stress disorder (“PTSD”), anxiety, depression, bulimia
nervosa, and a back condition.
1 Jenkins’s statement of facts, which was prepared and filed
by counsel, is a recitation of procedural events and provides no
background information about his age, previous work and
education, claimed disability, his treatment, or the medical
opinions provided in his case. Therefore, the substantive
background information is taken from the Acting Commissioner’s
Factual Statement, which Jenkins does not challenge.
Case 1:18-cv-00672-JD Document 11 Filed 11/28/18 Page 2 of 11

3
Jenkins was treated for PTSD from January to March of 2016.2
In February of 2016, Jenkins was assessed for PTSD at the VA
Hospital in Northampton. The author of the assessment was Gary
Harris, although the testing was administered by “Channing
Harris, MA (Clinical Psychology Intern)” under the supervision
of Emily Britton, Psy.D. and Michelle A. Mattison, Ph.D. Dr.
Mattison co-signed the assessment.
In the assessment, Jenkins was diagnosed with PTSD and
severe alcohol use disorder. The assessment states that Jenkins
had severe, markedly elevated, impairment in social functioning.
With reference to occupational functioning, Jenkins’s PTSD was
found to have moderate impact, with “definite impairment but
many aspects of occupational/other important functioning still
intact.”
William Swinburne, Ph.D., completed a comprehensive
psychological profile of Jenkins on October 11, 2016, on a
referral from the Social Security Disability Determination Unit.
The profile was based on his examination of Jenkins, along with
a review of his adult function report and a discharge summary
2In his reply, Jenkins states that he was hospitalized at
the “Northampton [Massachusetts] VA Hospital,” from December 3,
2015, to January 7, 2016, and again from January 22, 2016, to
March 4, 2016. The first admission appears to have been because
of alcohol dependence syndrome, but he may also have been
treated for PTSD.
Case 1:18-cv-00672-JD Document 11 Filed 11/28/18 Page 3 of 11

4
from the VA Hospital in January of 2016. In the context of
Jenkins’s reaction to stress and his adaptation to work or work-
like situations, Dr. Swinburne found the following:
The claimant could tolerate mild disruptions that
could be encountered in the average work scene such as
being asked to fulfill another function. He could
manage the expectation of providing adequate
attendance. However, in a work-like situation, he can
be expected to be very distrustful and on guard and
possibly misinterpret people’s actions or words. He
is capable of angry explosions, which will be
expressed primarily verbally. He will have difficulty
working as a member of a team and will work best by
himself. He could take supervision. He can be
expected to stay focused on a task if working by
himself and see the task through to completion.
Doc. 5-8, Admin. Rec. at 702.
Dr. Craig Stenslie, an agency consultative psychologist,
completed a Mental Residual Functional Capacity Assessment on
October 20, 2016. Dr. Stenslie found that Jenkins could
adequately deal with instructions and changes in a low stress
situation. He also found that Jenkins could maintain attention,
sustain an ordinary routine, complete a normal work week, and
work with others if that were only a small part of his job.
A hearing was held on October 26, 2017. Jenkins attended
and testified at the hearing and was represented by an attorney
who continues to represent him. Anthony James Paige, who is a
clinical mental health counselor and who had worked with Jenkins
for more than two years, also testified at the hearing.
Case 1:18-cv-00672-JD Document 11 Filed 11/28/18 Page 4 of 11

5
Paige gave a detailed description of Jenkins’s mental
health issues and their negative effects on his ability to
function, particularly in a work situation. Paige said that he
thought Jenkins could present well and be hired for a job but
would not be able to maintain employment because of his
inability to tolerate coworkers’ perceived inadequacies and his
own inadequacies, which would cause a volatile situation.
A vocational expert also testified. For purposes of the
vocational expert’s opinion, the ALJ proposed a hypothetical
claimant who
could perform uncomplicated tasks defined as tasks
that typically can be learned in 30 days or less; and
would need an environment with only incidental contact
with the general public and by that, I mean dealing
with the public would not be part of job duties; he
would also need an environment where work was
performed in a generally solitary manner, but tandem
tasks could be performed or tolerated up to 10 percent
of the work day; in such a setting, the individual
could otherwise collaborate with coworkers and
supervisors on routine matters; in addition, the
individual would need an environment without frequent
changes, but could tolerate routine changes.
Admin. Rec. at 213. In response, the vocational expert stated
that such a claimant could not return to the work that Jenkins
had done previously but that there were jobs that existed that
he could do. When limitations were added for a claimant who
could not collaborate consistently with co-workers and
supervisors or who would have angry outbursts on the job, the
Case 1:18-cv-00672-JD Document 11 Filed 11/28/18 Page 5 of 11

6
vocational expert said that those limitations would preclude all
work.
The ALJ issued her decision on November 28, 2017, finding
at Step Five that Jenkins was not disabled.3 In support, the ALJ
found that Jenkins had severe impairments due to PTSD, bulimia
nervosa, and a history of alcohol abuse in remission. She found
that Jenkins had the residual functional capacity to work except
that he was limited to uncomplicated tasks, to incidental
contact with the public, and to solitary work. With those
limitations, the ALJ found that Jenkins could tolerate “tandem
tasks” for up to 10% of his workday and could collaborate with
co-workers and supervisors on routine matters without frequent
changes. Based on the vocational expert’s identification of
work a person could do with those limitations, the ALJ found
that Jenkins was not disabled.
3 In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis. 20 C.F.R. § 404.1520;
Purdy, 2018 WL 1601791, at *1-*2. The claimant bears the burden
through the first four steps of proving that her impairments
preclude her from working. Freeman v. Barnhart, 274 F.3d 606,
608 (1st Cir. 2001). At the fifth step, the Acting Commissioner
has the burden of showing “evidence of specific jobs in the
national economy that the applicant can still perform.” Purdy,
2018 WL 1601791, at *2.
Case 1:18-cv-00672-JD Document 11 Filed 11/28/18 Page 6 of 11

7
Jenkins requested review of that decision by the Appeals
Council. On February 20, 2018, after seeking review by the
Appeals Council, Jenkins was hospitalized at the Veterans
Affairs Medical Center of Western Massachusetts, for the effects
of PTSD, Bulimia, and alcohol use disorder. He was discharged
on April 3, 2018. Those records were submitted to the Appeals
Council. The Appeals Council denied review and explained that
the recent medical records did not affect the disability
decision because they did not relate to the period at issue,
before November 28, 2017.
Discussion
Jenkins moves to reverse the decision of the Acting
Commissioner on the ground that the ALJ’s residual functional
capacity assessment is not supported by substantial evidence in
the record. In support, Jenkins cites notations and findings by
mental health treatment providers that recount his own
descriptions of his behavior and find him markedly limited in
certain functional areas. He also faults the ALJ for failing to
acknowledge Dr. Swinburne’s opinion about his limitations in
handling a work situation, despite giving great weight to his
opinion as a whole.
The Acting Commissioner moves to affirm the decision. She
points to evidence in the record that shows that Jenkins has
Case 1:18-cv-00672-JD Document 11 Filed 11/28/18 Page 7 of 11

8
above average intelligence, was oriented and without signs of a
thought disorder, and was able to function in a variety of ways,
including attending AA meetings, veterans’ events, and working
out at a gym. She contends that the ALJ’s residual functional
capacity assessment adequately addressed Jenkins’s limitations.
The residual functional capacity assessment is a finding of
the most a claimant can do in a work setting despite his
limitations caused by impairments. 20 C.F.R. § 404.1545(a)(1).
An ALJ’s assessment is reviewed to determine whether it is based
on proper legal standards and is supported by substantial
evidence. Nguyen, 172 F.3d at 35-36. An ALJ generally cannot
interpret medical data in a claimant’s record in functional
terms. Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d
15, 17 (1st Cir. 1996). For that reason, an expert’s functional
capacity assessment, generally in the form of a medical opinion,
is necessary to evaluate a claimant’s work capacities in light
of his impairments. Id.; see also Swain v. Berryhill, 2018 WL
5342714, at *5 (D.N.H. Oct. 29, 2018).
An ALJ is required to consider medical opinions along with
all other relevant evidence in a claimant’s record. 20 C.F.R. §
404.1527(b). “Medical opinions are statements from acceptable
medical sources that reflect judgments about the nature and
severity of [the claimant’s] impairment(s), including [the
Case 1:18-cv-00672-JD Document 11 Filed 11/28/18 Page 8 of 11

9
claimant’s] symptoms, diagnosis and prognosis, what [the
claimant] can still do despite impairment(s), and [the
claimant’s] physical or mental restrictions.” § 404.1527(a)(1).
Jenkins contends that the ALJ did not properly consider the
treatment and opinion evidence that show the likelihood that he
would have angry outbursts. In particular, Jenkins notes that
Dr. Swinburne stated in his opinion that Jenkins was capable of
angry explosions in a work setting and would have difficulty
working as a member of a team. He contends that because the ALJ
gave great weight to Dr. Swinburne’s opinion, she necessarily
adopted that finding too.
The ALJ did not explicitly address the issue of Jenkins’s
anger and the likelihood that he would have outbursts in a work
environment.4 The ALJ did give great weight to Dr. Swinburne’s
opinion but did not mention that part of the opinion that found
Jenkins was capable of angry explosions at work. As such, the
ALJ did not adequately explain Jenkins’s functional capacity in
relation to the issue of angry outbursts.
The ALJ gave significant weight to the opinion of state
agency reviewing psychologist, Dr. Stenslie, which did not
mention Jenkins’s likelihood of having angry outbursts. The
4 The vocational expert testified that someone who could not
work in collaboration with others or would have angry outbursts
at work would be precluded from all jobs.
Case 1:18-cv-00672-JD Document 11 Filed 11/28/18 Page 9 of 11

10
ALJ, however, did not fully accept Dr. Stenslie’s “ratings under
the ‘part B criteria’” because they were based on old criteria
that had been changed as of January 17, 2017. It is not clear
what part of Dr. Stenslie’s opinion was affected and
disregarded.
Although the ALJ’s residual functional capacity assessment
greatly restricts Jenkins’s contact with the public and limits
him to solitary work, he would still have to tolerate “tandem
tasks” with co-workers for 10% of his work day and be able to
collaborate with co-workers and supervisors on routine matters
without frequent changes. Neither the ALJ nor the Acting
Commissioner cited an opinion or combination of opinions in the
record to support a correlation between the imposed restrictions
and Jenkins’s limitations. In other words, the record lacks
evidence to show that the restrictions the ALJ imposed would
allow Jenkins to collaborate with co-workers and supervisors and
prevent him from having angry outbursts at work. Further, while
Dr. Stenslie found that Jenkins could deal adequately with
change, he limited that ability to low stress situations. That
limitation is not in the ALJ’s residual functional capacity.
Therefore, the record lacks substantial evidence to support
the ALJ’s residual functional capacity assessment. As a result,
the vocational expert’s opinion about available jobs, based on
Case 1:18-cv-00672-JD Document 11 Filed 11/28/18 Page 10 of 11

11
an erroneous hypothetical, does not constitute substantial
evidence to support the Acting Commissioner’s burden at Step
Five. See Arocho v. Sec’y of Health & Human Servs., 670 F.2d
374, 375 (1st Cir. 1982).
Conclusion
For the foregoing reasons, Jenkins’s motion to reverse
(document no. 6) is granted. The Acting Commissioner’s motion
to affirm (document no. 8) is denied.
The Acting Commissioner’s decision is reversed, and the
case is remanded pursuant to sentence four of § 405(g).
SO ORDERED.
______________________________
Joseph A. DiClerico, Jr.
United States District Judge
November 28, 2018
cc: Stanley H. Robinson, Esq.
Lisa G. Smoller, Esq.
Case 1:18-cv-00672-JD Document 11 Filed 11/28/18 Page 11 of 11