Marie Gaudette, on behalf of D.P.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Opinion No. 2014 DNH 022
Joseph N. Laplante United States District Judge.
Marie Gaudette, acting on behalf of her minor daughter (known pseudonymously as “DP”) has appealed the Social Security Administration’s denial of DP’s application for Supplemental Security Income. An administrative law judge at the SSA (“ALJ”) ruled that DP was not disabled because her severe impairments (anxiety disorder, attention deficit-hyperactivity disorder (“ADHD”), and lactose intolerance with chronic constipation), either alone or in combination, did not meet, or medically equal, a listed impairment, nor did they functionally equal the severity of a listed impairment. See 20 C.F.R. §§ 416.924(d). The Appeals Council later denied Gaudette’s request for review of the ALJ’s decision, see id. § 416.1479, so the ALJ’s decision became the SSA’s final decision on DP’s application, see id. § 416.1481. Gaudette appealed the decision to this court, which has jurisdiction under 42 U.S.C. § 405(g) (Social Security).
Gaudette has filed a motion to reverse the decision, see L.R. 9.1(b)(1), challenging the ALJ’s decision as unsupported by substantial evidence. Specifically, Gaudette argues that the ALJ erred by finding (1) that DP’s ADHD was not medically equal to a listed impairment without obtaining an updated medical opinion to that effect, and (2) that DP’s impairments did not functionally equal a listed impairment. The Commissioner of the SSA has cross-moved for an order affirming the decision, see L.R. 9.1(d), defending the ALJ’s findings. As explained below, the court denies Gaudette’s motion, and grants the Commissioner’s.
The listing for ADHD requires a marked degree of inattention, impulsiveness, and hyperactivity that, in the case of a child (like DP) between 3 and 18 years of age, results in marked impairment in age-appropriate functioning in at least two of the following areas: (a) cognitive/communicative functioning, (b) social functioning, (c) personal functioning, and (d) maintaining concentration, persistence, or pace. 20 C.F.R. § 404, subp. P, app. 1, pt. B, ¶ 112.11 (cross-referencing id. ¶ 112.02(B)(2)). The ALJ found that DP’s ADHD did not meet or medically equal this listing because “she does not have markedly impaired functioning” in any of those areas.
Gaudette’s motion does not identify the areas in which she claims that DP suffers from the requisite degree of impairment. Instead, the motion criticizes the ALJ for relying on the opinions of what (in their joint statement of facts) the parties identify as a “State Agency” psychologist and a medical doctor that, while DP suffered from a medically determinable case of ADHD (among other medically determinable impairments), it did not reach the level of a severe impairment. So far as the court can tell, Gaudette takes this line of attack based on her view that the ALJ necessarily relied on these opinions in finding that DP’s ADHD did not medically equal the listing--a view based in turn on her position that the ALJ could not have made such a finding without a medical opinion to that effect.
This is so, Gaudette intimates, by the force of a policy interpretation by the SSA, Titles II and XVI: Consideration of Administrative Findings of Fact by State Agency Medical and Pyschological Consultants and Other Program Physicians at the Administrative Law Judge and Appeals Council Levels of Administrative Review; Medical Equivalence, SSR 96-6p, 1996 WL 374180 (SSA 1996). Gaudette reads this ruling to require that the ALJ “receive expert opinion evidence from a physician . . . on the issue of equivalence.” While some courts have endorsed this interpretation of SSR 96-6p, see, e.g., Stratton v. Astrue, ___ F.Supp.2d ___, 2012 WL 1852084, at *11-*13 (D.N.H. May 11, 2012), rept. & rec. adopted, No. 11-256 (D.N.H. May 18, 2012), this court need not decide whether to do so here because--as Gaudette’s argument assumes--a “state agency physician’s opinion that [the] claimant was not disabled fulfills the medical opinion requirement, ” Phelps v. Astrue, 2011 DNH 107, 12 n.2, insofar as such a “requirement” exists. Here, again, a state agency physician (joined by a state agency psychologist) found that DP was not disabled, i.e., that her ADHD did not reach the level of a severe impairment. So the record contained the medical opinion that Gaudette claims was necessary for the ALJ to find that DP’s ADHD was not equivalent to a listed impairment.
Gaudette suggests that this opinion was stale because it was rendered in early 2010, prior to a “vast amount of medical evidence” that was generated between then and the hearing before the ALJ, in September 2011. But Gaudette does not identify any evidence, of any vintage, that undermines the state agency physician’s conclusion. That includes any contrary medical opinion that she might have adduced at the hearing before the ALJ--where Gaudette bore the burden of proving that DP’s “condition met or equaled the level of severity required for presumptive disability status.” Hernandez-Torres v. Sec’y of HHS, 968 F.2d 1210 (table), 1992 WL 164715, at *2 (1st Cir. July 17, 1992). Under these circumstances, the ALJ properly found that DP’s ADHD did not medically equal a listed impairment. See Phelps, 2011 DNH 107, 12-13.
The ALJ also found that DP’s impairments, either alone or in combination, did not functionally equal any listed impairment. For an impairment or combination of impairments to “functionally equal the listings . . . it must result in marked limitations in two domains of functioning or an extreme limitation in one domain.” 20 C.F.R. § 416.926a(a) (quotation marks omitted). These “domains” are: (i) acquiring and using information, (ii) attending and completing tasks, (iii) interacting and relating with others, (iv) moving about and manipulating objects, (v) caring for oneself, and (vi) health and physical well-being. Id. § 416.926a(b)(1). The ALJ found that DP had less than marked limitations in each of these domains.
In challenging these findings, Gaudette merely states that “[d]espite the overwhelming evidence that [DP’s] impairment(s) is . . . functionally equal to a listed impairment, the ALJ failed to properly evaluate this issue.” But this section of Gaudette’s motion does not refer to any such evidence--or, indeed, any evidence at all--or elaborate on her charge that the ALJ “failed to properly evaluate [the] issue” of functional equivalence. “It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
In other sections of her motion, Gaudette argues that the ALJ erred by giving little weight to the opinions of a nurse practitioner who treated DP, Bonnie Proulx. Proulx opined, in September 2011, that DP suffered from marked limitations in attending to and completing tasks and in caring for herself, as well as an extreme limitation in health and well-being. Gaudette suggests that, because Proulx had seen DP “on numerous occasions” over a four-year period, her “medical opinion is the one most likely to provide a detailed, longitudinal picture of [DP’s] medical impairment(s) . . . pursuant to [20 C.F.R.] § 416.927(c)(2).” As Gaudette seems to acknowledge, though, Proulx--as a nurse practitioner--is not an “acceptable medical source, ” 20 C.F.R. § 416.913(a), so her opinions are not “medical opinions” under § 416.927. See Titles II and XVI: Considering Opinions and Other Evidence From Sources Who Are Not “Acceptable Medical Sources” in Disability Claims, SSR 06-03p, 2006 WL 2329939, at *2 (SSA 2006).
It is true that, as Gaudette also points out, opinions from so-called “other medical sources” like nurse practitioners “should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file, ” and the ALJ “generally should explain the weight given to opinions from these ‘other sources.’” Id. at *3; see also, e.g., Corson v. Soc. Sec’y Admin., Comm’r, 2013 DNH 144, 24-25. But consistent with this directive--and contrary to Gaudette’s assertion that “[t]he ALJ did not explain why she disregarded the opinion of  Proulx”--the ALJ gave specific reasons for giving little weight to Proulx’s opinion as to DP’s limitations.
For one, the ALJ found that Proulx’s view was “wholly inconsistent with” the opinion of a physician who had also treated DP, Dr. Peter Cook, that DP was “a healthy young woman who could perform activities as tolerated and whose lactose intolerance was well under control.” Gaudette argues that, because Cook saw DP “three times for lower back symptoms only, ”the ALJ should have given his opinions less weight than those of Proulx, who treated DP “for constipation and gastrointestinal ailments” over a period of four years and therefore, in Gaudette’s view, “was more familiar with the overall physical condition” of DP. But, while “[h]ow long the source has known and how frequently the source has seen” the claimant is a factor in the weight an ALJ should give opinions from “other medical sources, ” it is not the only factor in that analysis. SSR 06-03p, 2006 WL 2329939, at *4.
The ALJ may also consider “[t]he degree to which the source presents relevant evidence to support an opinion” and “[h]ow well the source explains the opinion.” SSR 06-03p, 2006 WL 2329939, at *4 (citing 20 C.F.R. § 416.927(d)). As the ALJ noted, Proulx did not refer to any evidence buttressing her opinions that DP suffered from marked limitations in attending to and completing tasks and in caring for herself, and an extreme limitation in health and well-being; she merely checked boxes indicating those limitations on a form. Per § 416.927(d), an ALJ can properly decide to discount opinions expressed in this unexplained manner. See, e.g., McGrath v. Astrue, 2012 DNH 060, 13 n.13 (finding that an ALJ properly gave little weight to opinions expressed in “a two page checklist with scant analysis”); Morin v. Astrue, 2011 DNH 091, 14-15 (finding that an ALJ properly gave little weight to the opinions of a source who “merely checked off boxes indicating [the claimant’s] functional abilities” without providing any narrative or medical or clinical findings).
Furthermore, “[t]he fact that a medical opinion is from an acceptable medical source”--like Cook, a physician--“is [also] a factor that may justify giving that opinion greater weight than an opinion from a medical source who is not an acceptable medical source because . . . acceptable medical sources are the most qualified health care professionals.” SSR 06-03p, 2006 WL 2329939, at *5. Contrary to Gaudette’s suggestion, then, it was within the ALJ’s discretion to rely on the fact that Proulx “is not an acceptable medical source” in deciding to give her opinion less weight than Cook’s. Indeed, “[t]here is no error . . . where the ALJ clearly considered a source’s opinion and, after evaluating the record including other acceptable medical sources ...