Reed v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

DENISE REED, )

)

Plaintiff, ) Civil Action No.

) 19-12369-FDS

v. )

)

ANDREW SAUL, Commissioner, )

Social Security Administration, )

)

Defendant. )

_______________________________________)

MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION

FOR ORDER REVERSING THE COMMISSIONER’S DECISION AND DEFENDANT’S

MOTION FOR ORDER AFFIRMING COMMISSIONER’S DECISION

SAYLOR, C.J.

This is an appeal from the final decision of the Commissioner of the Social Security

Administration denying an application for supplemental security income (“SSI”) benefits.

Plaintiff Denise Reed alleges that she became disabled on January 1, 2013, after various

impairments rendered her unable to work. She submitted medical records indicating that she

suffers from various ailments, including patellar tendinitis, degenerative joint disease of the

knees, depression, bipolar disorder, anxiety disorder, post-traumatic stress disorder, alcohol

dependence, substance abuse, and obesity. She now disputes the Commissioner’s holding that

she is not “disabled” within the meaning of the Social Security Act.

Pending before the Court is Reed’s appeal and the Commissioner’s motion to affirm. For

the reasons stated below, Reed’s motion to reverse and remand will be granted and the

Commissioner’s motion to affirm will be denied.

I. Background

The following is a summary of the evidence as stated in the administrative record

(“A.R.”) and the parties’ relevant memoranda.

A. Education and Occupational History

Denise Reed was born on July 27, 1974, and is currently 46 years old. (A.R. at 26). At

the alleged onset of her disability on January 1, 2013, she was 38 years old. She has an eleventh-

grade education and has not obtained a GED. (Id. at 19, 26, 226).

Until April 2018, Reed was volunteering two days a week at a thrift shop at her church,

where she worked as a cashier, sorted donated clothes, and assisted customers. (Id. at 19). Since

July 2018, she has worked part-time, three hours per day and four days per week, making

jewelry at Rosie’s Place, a women’s shelter. (Id.). Her other vocational history includes work as

a cashier from 1998 to 1999, as a telemarketer in 2002, as a housekeeper from 2002 to 2006, and

as a personal-care attendant in 2008. (Id. at 128). She has not been engaged in gainful

employment since August 31, 2017, the date of her application for benefits. (Id. at 14).

B. Medical History

Reed alleges an inability to work due to disability caused by a variety of physical and

mental-health issues. (Id. at 19-20).

On August 25, 2017, Reed reported to Lisa Goldstein, N.P., that she had aching and

locking in her right knee and soreness in her left knee. (Id. at 19). X-rays taken on the same day

showed no evidence of joint effusion on either side, although there was mild narrowing of the

medial tibiofemoral joint space on both sides. (Id.).

On September 19, 2017, Reed saw Lester Sheehan, M.D., and reported the same

complaints. (Id. at 20). On examination, her range of motion was good in both knees, but there

was a small possible effusion in the right knee. (Id.). X-rays showed early degenerative arthritis

in both knees, slightly worse on the right. (Id.). Dr. Sheehan injected the right knee with Depo-

Medrol, a steroid. (Id.).

On October 4, 2017, Reed visited Abbas Zaidi, M.D. His office recorded her weight as

180 pounds and her height as 61 inches, resulted in a Body Mass Index of 34, within the obese

category. (Id.).

Reed has received psychiatric care from a young age, due in part to a reportedly traumatic

upbringing. (Id. at 509). She has a history of both substance abuse and bipolar disorder and has

been in and out of multiple in-patient treatment programs since September 2017. (Id. at 467,

560, 708). She was treated in a partial hospitalization program at Arbour HRI Hospital from

September 25 to October 31, 2017. (Id. at 467-555). From November 15 through December 21,

2017, she was again treated at Arbour HRI Hospital. (Id. at 22, 556-700). On January 16, 2018,

she was admitted to Newton-Wellesley Hospital for a week. (Id. at 838). From February 26 to

March 27, 2018, she was again admitted to Arbour HRI Hospital for another 30 days. (Id. at

701-836).

Mental-health evaluations during hospitalization programs generally showed good

executive functioning and a lack of suicidal ideation, depression, hallucination, or anxiety. (Id.

at 479-80, 598, 620, 656, 675). However, between hospitalizations, Reed’s mental health would

deteriorate, signs of anxiety or depression would often manifest, and she would often be reluctant

to take her medication and would return to substance abuse. (Id. at 486, 710, 782, 840, 852-53).

For example, she was transported to Boston Medical Center on both June 24 and June 25, 2018,

due to excessive intoxication, at one point registering a blood alcohol level of 0.201. (Id. at 23).

Neither Reed nor her physicians have clearly identified the reasons for her non-compliance with

outpatient treatment or proper use of medication. (Id. at 19, 489-90). In total, she was

hospitalized, either fully or partially, for 118 days between August 31, 2017, and January 3,

2019. (Pl. Reply at 2).

C. RFC and Related Opinions

In November 2017, the state agency reviewer at the initial stage, Theresa Kriston, M.D.,

concluded that Reed was not disabled and had the following physical residual functional

capacity: she could occasionally lift and/or carry twenty pounds and frequently lift and/or carry

ten pounds, stand and/or walk (with normal breaks) for a total of about six hours in an eight-hour

workday, sit (with normal breaks) for a total of about six hours in an eight-hour workday, and

push and/or pull (including operation of hand and/or foot controls) a limited amount. (Id. at 124-

25). The reviewer also found that she was able to occasionally climb ramps/stairs, balance,

stoop, kneel, crouch, crawl, and climb ladders/ropes/scaffolds. (Id. at 124-25).

Also in November 2017, William Alexander, Ph.D., reviewed Reed’s medical records for

a mental residual functional capacity assessment. He concluded that she had limitations in all

categories discussed: understanding and memory, sustained concentration and persistence, social

interaction, and adaptation. (Id. at 125-27). He found that she appeared capable of

understanding and remembering simple work-related instructions; had symptoms related to

mental-health issues, but appeared capable of performing simple work-related tasks for two-hour

periods during a normal workday; experienced some difficulties in social interaction, but

appeared capable of managing interpersonal interactions in the workplace; and could manage

minor stressors and simple changes in routine work activities. (Id. at 126-27). Dr. Alexander

also concluded that she had mild impairment in understanding, remembering, and applying

information; moderate impairment in maintaining concentration and managing herself; and

severe impairments related to depression or bipolar disorder, trauma or stress-related disorders,

substance addiction, and obesity. (Id. at 121-22).

Despite her history of hospitalization for bipolar disorder and substance abuse, state

psychological consultant Dr. Alexander testified that Reed would continue to improve with

mental-health treatment and abstinence, ultimately opining that she would be able to return to

light work. (Id. at 122, 128-29).

On March 15, 2018, at the reconsideration stage, Alice Truong, M.D., and Robert Lasky,

Ph.D., affirmed the initial reviewers’ determination that Reed was not disabled. (Id. at 136-42).

Because of Reed’s three additional hospitalizations between November 2017 and June

2018, substantial additional medical records were generated between the time that the record was

reviewed by state consultants and the date of the hearing. (Id. at 556-700, 701-836, 838). Those

events account for 530 additional pages of records that the consultants apparently did not review

in making a determination about her disability. (Pl. Mem. at 7-8).

D. Procedural History

On August 31, 2017, Reed filed for SSI benefits, alleging that she became disabled on

January 1, 2013. (Id. at 12, 226-36). The Commissioner denied her claim both initially and

upon reconsideration. (Id. at 117-29, 131-44).

Reed then requested a hearing. On September 21, 2018, she appeared before

Administrative Law Judge (“ALJ”) Francis Hurley. (Id. at 33-80, 157-59). The ALJ issued his

decision on January 3, 2019, concluding that she was not disabled. (Id. at 9-32).

Reed requested a review of that decision by the Appeals Council. (Id. at 222-25, 316-

19). On October 2, 2019, the Appeals Council declined to review the decision, making the

ALJ’s decision the final decision of the Commissioner in this case. (Id. at 1-6).

Reed filed the complaint in this action on November 19, 2019, seeking judicial review by

this Court pursuant to 42 U.S.C. § 405(g). (Compl. at 2; Pl. Mem. at 1). She has moved to

reverse the ALJ’s decision on the ground that the opinions by state consultants did not reflect the

entirety of her medical record. (Pl. Mem. at 1). Reed alleges that the error was not harmless due

to the lack of tolerance for absenteeism, such as that caused by frequent hospitalization, that was

presented in the vocational expert’s testimony. (Id.).

II. Analysis

A. Standard of Review

Under the Social Security Act, this Court may affirm, modify, or reverse the final

decision of the Commissioner, with or without remanding the case for a rehearing. 42 U.S.C. §

405(g). The Commissioner’s factual findings, “if supported by substantial evidence, shall be

conclusive,” id., because “the responsibility for weighing conflicting evidence, where reasonable

minds could differ as to the outcome, falls on the Commissioner and his designee, the ALJ.”

Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001) (citation omitted); see Evangelista v. Sec’y of

Health & Human Servs., 826 F.2d 136, 143-44 (1st Cir. 1987). Therefore, “[j]udicial review of a

Social Security Claim is limited to determining whether the ALJ used the proper legal standards,

and found facts based on the proper quantum of evidence.” Ward v. Commissioner of Soc. Sec.,

211 F.3d 652, 655 (1st Cir. 2000).

However, the Court may reverse or remand the ALJ's decision if the ALJ ignored

evidence or made legal or factual errors. See Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)

(“The ALJ’s findings . . . are not conclusive when derived by ignoring evidence, misapplying the

law, or judging matters entrusted to experts.”); Moore v. Astrue, 2013 WL 812486, at *2 (D.

Mass. Mar. 2, 2013) (citation omitted) (“[I]f the ALJ made a legal or factual error, the Court may

reverse or remand such decision . . . .”). Accordingly, if the “ALJ failed to record consideration

of an important piece of evidence that supports [the claimant’s] claim and, thereby, left

unresolved conflicts in the evidence, [the] Court can not conclude that there is substantial

evidence in the record to support the Commissioner’s decision.” Nguyen v. Callahan, 997 F.

Supp. 179, 183 (D. Mass. 1998); see also Crosby v. Heckler, 638 F. Supp. 383, 385-86 (D. Mass.

1985) (“Failure to provide an adequate basis for the reviewing court to determine whether the

administrative decision is based on substantial evidence requires a remand to the ALJ for further

explanation.”). Questions of law are reviewed de novo. Seavey, 276 F.3d at 9.

B. Standard for Entitlement to SSI Benefits

An individual is not entitled to SSI benefits unless she is “disabled” within the meaning

of the Social Security Act. See 42 U.S.C. §§ 1382(a)(1), 1382c(a)(3) (setting forth the definition

of disabled in the in the context of SSI). “Disability” is defined, in relevant part, as the inability

“to engage in any substantial gainful activity by reason of any medically determinable physical

or mental impairment which can be expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than” 12 months. 42 U.S.C. §

1382c(a)(3)(A). The impairment must be severe enough to prevent a claimant from performing

not only past work, but also any substantial gainful work existing in the national economy. 20

C.F.R. § 404.1560(c)(1).

The Commissioner uses a sequential five-step process analysis to evaluate whether a

claimant is disabled. See 20 C.F.R. § 404.1520. The steps are:

1) if the applicant is engaged in substantial gainful work activity, the application

is denied; 2) if the applicant does not have, or has not had . . . a severe impairment

or combination of impairments, the application is denied; 3) if the impairment

meets the conditions for one of the ‘listed impairments’ in the Social Security

regulations, then the application is granted; 4) if the applicant’s ‘residual

functional capacity’ is such that [s]he . . . can still perform past relevant work,

then the application is denied; 5) if the applicant, given his or her residual

functional capacity, education, work experience, and age, is unable to do any

other work, the application is granted.

Seavey, 276 F.3d at 5; see 20 C.F.R. § 404.1520(a)(4). “The applicant has the burden of

production and proof at the first four steps of the process,” and the burden shifts to the

Commissioner at step five to “com[e] forward with evidence of specific jobs in the national

economy that the applicant can still perform.” Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir.

2001). At that juncture, the ALJ assesses the claimant’s residual functional capacity in

combination with the “vocational factors of [the claimant’s] age, education, and work

experience,” 20 C.F.R. § 404.1560(c)(1), to determine whether the claimant can “engage in

any . . . kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §

1382c(a)(3)(B).

C. The Administrative Law Judge’s Findings

In evaluating the evidence, the ALJ followed the established five-step procedure set forth

in 20 C.F.R. § 416.920(a)(4).

At the first step, the ALJ found that Reed had not engaged in substantial gainful activity

since the application date of August 31, 2017. (A.R. at 14). Although she had been employed

since the application date, the ALJ determined that her employment did not rise to the level of

substantial gainful activity. (Id.).

At the second step, the ALJ addressed the severity of Reed’s impairments. (Id. at 14-15).

He concluded that she had the following severe impairments: patellar tendinitis and

degenerative joint disease of the right knee; depression; bipolar disorder; anxiety disorder; post-

traumatic stress disorder; alcohol dependence; substance abuse; and obesity. (Id.). He also

concluded that her gastroesophageal reflux disease, or GERD, was well-controlled by medication

and not severe, only minimally affecting her ability to perform work-related activities. (Id.). He

further concluded that although she alleged impairments caused by low-back and right-hip pain,

the record did not show them to be medically determinable impairments.

At the third step, the ALJ found that Reed’s impairments did not meet or medically equal

the severity of a Listed Impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 15).

Specifically, he found that the severity requirement of Listing 1.02 (major dysfunction of a joint)

was not met because there was “no substantial medical evidence of record to suggest the

claimant is unable to ambulate effectively or perform fine and gross movements with her upper

extremity, as required by that listing.” (Id.). The ALJ also found that Reed’s mental

impairments did not meet or medically equal the criteria of Listings 12.04, 12.06, or 12.15, as

she did not meet the requirements of paragraph B or paragraph C. (Id. at 15-17). Paragraph B

requires mental impairments that result in “at least one extreme or two marked limitations in a

broad area of functioning.” (Id.). The ALJ determined that her mild or moderate impairments in

the areas of understanding, remembering, or applying information; interacting with others;

concentrating, persisting, or maintaining pace; and adapting or managing herself did not meet

that standard. (Id.). The ALJ also determined that her mental impairments did not cause her to

achieve only “marginal adjustment,” where one has “minimal capacity to adapt to changes in

[the] environment” and must “eliminat[e] all but minimally necessary contact with the world,”

and therefore did not meet the criteria of paragraph C. (Id. at 17).

At the fourth step, the ALJ considered Reed’s residual functional capacity and her

relevant past work. (Id. at 18); see 20 C.F.R. § 404.1520(a)(4)(iv). In doing so, the ALJ

considered her medical records, her testimony, and the opinions of state agency medical

consultants. (A.R. at 18-25). Among the evidence, the ALJ found to be persuasive the prior

findings made by state agency psychologists William Alexander, Ph.D., and Robert Lasky,

Ph.D., in November 2017 and March 2018 respectively, that she retained the capacity to work at

a light level of exertion with postural limitations. (Id. at 25). In part, the ALJ found these

opinions persuasive because they were consistent with Reed’s treating records, the physical-

examination findings, the mental-status examinations, and the objective testing contained in the

record, as well as her reported activities of daily living. (Id.). He reached that conclusion

despite the fact that those findings did not reflect the entirety of Reed’s medical records at the

time of her hearing. (Def. Mem. at 12; Pl. Mem. at 4-5). The ALJ added a limitation restricting

Reed to work that involves only occasional, brief, superficial interaction with the general public

and co-workers. (A.R. at 25).

The ALJ determined that “the evidence does not support the degree of symptomology

and functional limitations alleged by [Reed].” (Id. at 25-26). He concluded that she had the

residual functional capacity to perform light work as defined in the Commissioner’s regulations

at 20 C.F.R. § 416.967(b), with the following limitations:

[S]he can lift and carry 20 pounds occasionally and 10 pounds frequently. She

can stand and/or walk for about 6 hours and sit for about 6 hours of an 8-hour

workday. She can occasionally push and pull with the right lower extremity. She

can occasionally climb ramps, stairs, ladders, ropes and scaffolds. She can

occasionally balance, stoop, kneel, crouch and crawl. She is able to understand

and remember simple instructions. She is able to maintain attention,

concentration, persistence and pace on simple, work related tasks for 2 hours at a

time during an 8-hour workday and 40-hour workweek or equivalent work

schedule with customary breaks. She can tolerate occasional, brief, superficial

interaction with the general public and co-workers. She is able to adapt to

occasional, simple changes in a work setting and routine.

(Id. at 18). The ALJ found that, however, that she was unable to perform past work as a

personal-care assistant due to the mental and physical demands of the work. (Id. at 26).

At the fifth step, the ALJ assessed the availability of other jobs, considering her age,

education, experience, and residual functional capacity. (Id. at 26); see 20 C.F.R. § 416.969. In

making that determination, he relied on the testimony of a vocational expert to find that other

jobs exist in significant numbers in the national economy that Reed could perform, such as small

parts assembler, assembler of small electronic parts, and garment sorter. (A.R. at 26-27). The

ALJ therefore concluded that Reed was not disabled within the meaning of the Social Security

Act. (Id. at 27).

D. Plaintiff’s Objections

Reed raises the following objections to the ALJ decision: (1) that the ALJ erred in

relying on opinions by state agency consultants who did not review substantial medical records

received subsequent to their assessment, which documented repeated hospitalizations for mental-

health treatment; and (2) that the error was not harmless due to the lack of tolerance for

absenteeism expressed by the vocational expert.

1. The ALJ Erred in Relying on State Consultants’ Opinions, Which

Were Based on a Significantly Incomplete Record

First, Reed contends that the ALJ erred in relying on state agency consultants’ opinions

that did not reflect the entirety of the record, as the consultants did not have access to more than

500 pages of medical records reflecting three additional mental-health hospitalizations.

Generally, it is “appropriate for the ALJ to give partial weight to the opinion evidence from the

state agency consultants,” even if such opinions did not consider every medical record, in the

absence of contrary opinion evidence or any opinions closer in time to plaintiff’s hearing. Myers

v. Berryhill, 2019 WL 3976017, at *17 (D. Mass. Aug. 21, 2019) (affirming ALJ’s reliance on

state agency consultants’ RFC assessment, and rejecting plaintiff’s argument for reversal based

on new medical records because plaintiff did not show reasonable probability that the ALJ’s

decision would have been different had he considered the records); see also Anderson v. Colvin,

2014 WL 5605124, at *5-6 (D.N.H. Nov. 4, 2014) (affirming ALJ’s reliance on consultants’

RFC assessment in the absence of contrary or more recent medical opinions, and rejecting

plaintiff’s argument that ALJ should have considered her more recent records from a physician’s

assistant, who was not an acceptable medical source).

However, an opinion from a state agency consultant that is based on a “significantly

incomplete record” cannot be afforded “significant weight.” Alcantara v. Astrue, 257 F. App’x

333, 334 (1st Cir. 2007). “The record is significantly incomplete if the evidence added after the

consultant’s review materially changed the basis for assessing the claimant’s limitations.”

Blakley v. Saul, 2019 WL 4668020, at *5 (D.N.H. Sept. 25, 2019). The record remains

materially unchanged “where the new evidence either reveals no greater limitations or is

arguably consistent with the consultant’s assessment.” Id. (quoting Giandomenico v. U.S. Soc.

Sec. Admin., 2017 WL 5484657, at *4 (D.N.H. Nov. 15, 2017)). Thus, “an ALJ may rely on

[state agency] opinion[s] where the 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 . . . the reviewer’s assessment.” Abubakar v. Astrue, 2012 WL

957623, at *12 (D. Mass. Mar. 21, 2012) (quoting Ferland v. Astrue, 2011 WL 5199989, at *4

(D.N.H. Oct. 31, 2011)).

Here, the evidence postdating the reviewers’ assessments may well reveal additional or

greater limitations. Reed’s multiple hospitalizations between November 2017 and March 2018

are evidence that her mental health did not “continue to improve with outpatient mental health

treatment and abstinence,” as the state agency reviewers had anticipated. (Compare A.R. at 122,

137 with A.R. at 565, 671, 709, 784). Her treating providers certified in four places that she

would have required inpatient psychiatric hospitalization if partial hospitalization services were

not provided. (A.R. at 565, 671, 709, 784). That evidence likely constitutes both a “greater

limitation” than previously anticipated by state agency consultants and “opinion evidence to the

contrary” from her treating physicians, which would preclude an over-reliance on earlier

opinions. See Myers, 2019 WL 3976017, at *17 (D. Mass. Aug. 21, 2019); see also Abubakar,

2012 WL 957623, at *12 (D. Mass. Mar. 21, 2012). Despite this, the non-examining opinions by

Dr. Alexander and Dr. Lasky were given controlling weight, with the ALJ’s decision deviating

only slightly from their conclusions. (Compare A.R. at 18 with A.R. at 124-27 and 138-42).

Therefore, it appears that the ALJ relied on assessments that may have been materially

incomplete to determine Reed’s RFC.

Defendant’s principal argument in response is that the new medical records did not

establish any greater limitations than, and thus were consistent with, the state agency

consultants’ original assessment. (Def. Mem. at 13-18). Defendant contends that the state

agency psychologists did have access to records from Reed’s first partial hospitalization in

September and October 2017, which showed that she sought hospitalization for the first time

after a period of substance abuse, non-compliance with medication, and a physical altercation,

but stabilized while in hospital care. (Id. at 14). Based on that information, the state agency

consultants concluded that her “function overall will improve with continued opt [sic] mental

health treatment and abstinence.” (A.R. at 122, 137). According to defendant, her subsequent

hospitalizations demonstrated the same pattern of substance abuse and non-compliance with

treatment, followed by hospitalization and stabilization. Therefore, they contend, the subsequent

three hospitalizations are not evidence of any greater limitation than, or inconsistency with, the

conclusions reached after the first hospitalization. In essence, they argue that her subsequent

hospitalizations were caused by drug and alcohol use and her refusal to comply with outpatient

treatment options, which the original RFC took into account.

Defendant’s contention is plausible, and may ultimately prove to be correct, but it is

insufficient to avoid a remand. First, four episodes requiring hospitalization for a mental-health

crisis in less than a year is significantly different than one such episode. After Reed’s first

hospitalization, the conclusion that she could manage her mental health with abstinence and

appropriate treatment was reasonable. However, clearly she was not able to do so in the months

that followed the state agency consultants’ findings. Second, a person’s inability to control an

impairment outside of hospital settings can be, itself, evidence of an impairment. The First

Circuit addressed a similar situation in Roberts v. Barnhart, 67 F. App'x 621 (1st Cir. 2003),

which concerned a claimant with severe depression who was unable to maintain her mental

health functioning with outpatient treatment:

Indeed, the Commissioner’s position on appeal is that claimant’s problems arose

from her non-compliance with treatment and not from her incapacity to get

control of her impairments through treatment.

While the above position may be correct, we do not think that the ALJ was

qualified to make an RFC assessment concerning the extent to which claimant's

non-compliance with treatment was under her control and the extent to which,

even assuming compliance with treatment, claimant's maladaptive behavior would

cease. As we have stated, an expert's RFC evaluation is required where “the

record . . . is sufficiently ramified that understanding it requires more than a

layperson's effort at a commonsense functional capacity assessment.” Manso–

Pizarro, supra, 76 F.3d at 19.

Based on the foregoing, and viewing all of the evidence in the record as a whole,

we think that the record indicates more than a mild impairment which imposes

more than slight restrictions on claimant's mental ability to function. As a result,

the ALJ was not permitted to make an RFC assessment, and an expert was

required for this task. It thus follows that the ALJ's comparison of the demands of

claimant's past work with her mental functional capacity, being based on an

invalid RFC assessment, is not supported by substantial evidence.

Id. at 623. The court remanded the case for further inquiry as to how claimant’s depression,

including her inability to comply with her treatment requirements, affected her functional

capacity. Id.

Here, like the claimant in Roberts, Reed has presented additional evidence of

hospitalization that potentially shows more than a mild impairment and more than slight

restrictions on her ability to function. That evidence should be evaluated as part of an updated

RFC assessment that considers the extent to which her repeated hospitalizations were under her

control, whether they were symptomatic of her impairment, and the likelihood that her

maladaptive behavior would cease even assuming compliance with treatment.

2. The Error Was Not Harmless

Reed further argues that the error was not harmless due to the fact that employers

generally have a low tolerance for employee absenteeism. Under 20 C.F.R. 404.1569(a),

absenteeism meets the definition of a nonexertional limitation, restricting the “ability to meet the

demands of jobs other than the strength demands, that is, demands other than sitting, standing,

walking, lifting, carrying, pushing or pulling.” The vocational expert who testified at Reed’s

hearing, John Christianson, indeed stated that employers lacked tolerance for absenteeism, which

could preclude fitness for work at all levels of exertion. (Id. at 71-78). Christianson expressed

that absences of three days per month or twelve days per year would be grounds for termination,

and would preclude work at all levels of exertion. (Id. at 75-76). He expressed a similar lack of

tolerance for late arrival or early departure from work, testifying that such instances would be

treated akin to absences altogether. (Id. at 77).

Reed was either fully or partially hospitalized for 118 days over a period of 183 days

between September 2017 and March 2018. (Pl. Mem. at 10). That period included

hospitalization for 82 days after the consultants’ review of her medical records. (Pl. Reply at 4).

Despite her significant history of hospitalization, and the vocational expert’s testimony on the

subject, the ALJ’s decision omits discussion of absenteeism as a potential limitation on her

ability to sustain gainful employment. (A.R. at 6-32); see 20 C.F.R § 404.1569(a). However,

because the absenteeism caused by her mental-health issues is undoubtedly greater than that

which was contemplated in the incomplete opinions on which the ALJ relied, and because even

low levels of absenteeism may preclude work at all levels of exertion, the ALJ’s error in relying

on such opinions was not clearly harmless. Indeed, the First Circuit recently affirmed a remand

due in part to the ALJ’s failure to address absenteeism and its effects on the ability of the

employee to sustain full-time employment. See Sacilowski v. Saul, 959 F.3d 431, 435-441 (1st

Cir. 2020); see also Lopez-Lopez v. Colvin, 138 F. Supp. 3d 96, 113-14 (D. Mass. 2015) (finding

that the failure to address absenteeism despite relevant credible evidence was cause for remand).

Defendant argues that the error was harmless because, by Reed’s own admission, she had

not yet experienced such absenteeism for a period of twelve months. (Def. Mem. at 17).

However, 20 C.F.R. § 416.909 requires that an impairment either last, or be expected to last, for

a continuous period of twelve months. The question, then, is whether Reed’s history of

absenteeism could reasonably be expected to last for twelve months based on the record. Her

history of absenteeism had lasted for arguably eight to nine months according to the record,

including hospitalization programs from September 2017 to March 2018 in addition to other

hospitalizations such as those in June 2018. (Id. at 20-23). Furthermore, neither Reed nor her

physicians have clearly identified the reasons for her non-compliance with outpatient treatment

or proper use of medication, non-compliance which may potentially be excused for mental health

considerations under 20 C.F.R. § 416.930(b) and (c). (Id. at 19, 489-90). Given those factors,

and the likely low tolerance for absenteeism that can preclude work at any level of exertion, it

may be reasonable to infer that absenteeism caused by Reed’s mental health issues could be

expected to last for a continuous period of at least twelve months according to the record. In any

event, that issue should be addressed on remand based on a complete record.

III. Conclusion

For the foregoing reasons, plaintiff’s motion for an order to reverse and remand the final

decision of the Commissioner of the Social Security Administration is GRANTED, and

defendant’s motion to affirm the action of the Commissioner is DENIED. This matter is hereby

remanded to the Social Security Administration for further proceedings consistent with this

opinion.

So Ordered.

/s/ F. Dennis Saylor IV

F. Dennis Saylor IV

Dated: August 21, 2020 Chief Judge, United States District Court