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Larocque v. Colvin

United States District Court, D. New Hampshire

May 14, 2015

Megan Stacey Larocque
Carolyn W. Colvin, Acting Commissioner, Social Security Administration.

ORDER ON APPEAL Opinion No. 2015 DNH 102.

JOSEPH N. LAPLANTE, District Judge.

Megan Stacey Larocque has appealed the Social Security Administration's ("SSA") denial of her application for a period of disability and disability insurance benefits. An administrative law judge at the SSA ("ALJ") ruled that, despite Larocque's severe impairments (bipolar disorder and anxiety disorder), she retains the residual functional capacity ("RFC") to perform a full range of work at all exertional levels with specified nonexertional limitations, allowing her to perform jobs that exist in the national economy in significant numbers and, as a result, is not disabled. See 20 C.F.R. § 404.1505(a). The Appeals Council later denied Larocque's request for review, see id. § 404.968(a), with the result that the ALJ's decision became the final decision on Larocque's application, see id. § 404.981. Larocque then appealed the decision to this court, which has jurisdiction under 42 U.S.C. § 405(g) (Social Security).

Larocque has moved to reverse the decision, see L.R. 9.1(b), challenging it as unsupported by substantial evidence. Among other things, Larocque argues that the ALJ failed to properly evaluate the medical opinion evidence bearing on her RFC determination. The Acting Commissioner of the SSA has crossmoved for an order affirming the ALJ's decision, see L.R. 9.1(e), defending the ALJ's handling of the opinion evidence. After careful consideration, the court agrees with Larocque that the ALJ erred in evaluating the opinion evidence and therefore grants Larocque's motion to reverse (and denies the Acting Commissioner's motion to affirm) the ALJ's decision.

The ALJ found that Larocque retained the RFC to perform a full range of work with a few nonexertional limitations, including that she (1) "must avoid concentrated exposure to hazards such as moving machinery and unprotected heights, " (2) is "limited to simple, routine tasks in a work environment free of fast-paced production requirements, involving only simple, workrelated decisions with few, if any, work place changes, " and (3) "would be limited to only occasional interaction with the public." Admin. R. at 101. In evaluating Larocque's RFC, the ALJ had six medical opinions at her disposal: those of Larocque's "treating providers, " Dr. Maria Gaticales, Ms. Melinda Rhinelander, LCSW, and Ms. Teresa Brugman, APRN[1]; that of a consultative examiner, Dr. William Freeman; and those of the state agency psychological consultants, Drs. Michael Maliszewski and Aryeh Shestopal.

As the ALJ acknowledged, each of the Arbour professionals and Dr. Freeman described significant limitations on Larocque's ability to work. In spite of the consistency among these four opinions, the ALJ afforded "little weight" to all of them because, she explained, they were inconsistent with the record as a whole, poorly or not supported by objective medical evidence, and contradicted by or not reflective of the improvements that the ALJ found Larocque experienced beginning in late 2011. The ALJ then afforded "some weight" to the opinions of agency psychological consultants Drs. Maliszewski and Shestopal, neither of whom examined Larocque and whose opinions the ALJ recognized as also inconsistent with the record.

Larocque argues that the ALJ erred by giving more weight to the opinions of the non-examining consultants than to the opinions of the Arbour professionals and Dr. Freeman. The ALJ is required to consider medical opinions along with the rest of the evidence in the record. 20 C.F.R. § 404.1527(b). The ALJ weighs the medical opinions "based on the nature of the medical source's relationship with the claimant, the consistency of the opinion with the other record evidence, the medical source's specialty, and other factors that may be brought to the ALJ's attention." Grant v. Colvin, 2015 DNH 059, 6-7 (citing 20 C.F.R. § 416.927(c)). The ALJ generally gives more weight to the opinion of a source who examined the claimant, and may give controlling weight to the claimant's treating source. 20 C.F.R. § 404.1527(c). The ALJ resolves conflicts between conflicting medical opinions, and the ALJ's decision to resolve those conflicts against the claimant must be upheld if "that conclusion has substantial support in the record." Tremblay v. Sec'y of HHS, 676 F.2d 11, 12 (1st Cir. 1982). Substantial evidence is that which a "reasonable mind, reviewing the evidence in the record as a whole, could accept... as adequate to support [the] conclusion." Ortiz v. Sec'y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)). Because the ALJ's decision to give "little weight" to the opinions of the Arbour professionals and Dr. Freeman but "some weight" to the non-examining consultants is not supported by substantial evidence, the court agrees with Larocque.

Dr. Gaticales, Ms. Rhinelander, and Ms. Brugman

The Arbour officials consistently opined that Larocque's bipolar disorder presented significant barriers to her employment. Dr. Gaticales and Ms. Rhinelander opined that Larocque experienced "marked limitations in performing activities within a schedule, maintaining regular attendance, working in coordination with or proximity to others without being distracted by them, completing a normal workday or workweek without interruptions from psychologically based symptoms, accepting instruction and responding appropriately to supervisors, and responding appropriately to changes in the work setting." Admin. R. at 104. Ms. Brugman opined that Larocque had "marked limitations in understanding, remembering and carrying out detailed instructions, and in accepting instructions and appropriately responding to supervisors." Admin. R. at 104. Ms. Rhinelander and Ms. Brugman further opined that the dramatic mood shifts associated with Larocque's bipolar disorder made it difficult for her to function at a consistent level for any period of time and caused confrontations and difficulties with her superiors and problems with concentration, ultimately concluding that Larocque's bipolar disorder would "continue to present significant barriers for her in an employment situation." Admin. R. at 506, 600.

The ALJ afforded "less weight" to the opinions of the Arbour professionals upon finding that their opinions were "inconsistent with the record as a whole and not well supported by the weight of the objective evidence." Admin. R. at 104. The only explanation the ALJ gives for this conclusion is that "treatment notes from late 2011 until the present show a much higher degree of functioning with much less symptomology."[2] Admin. R. at 104. While the ALJ is responsible for resolving conflicting evidence and drawing inferences from the record, see Rodriguez, 647 F.2d at 222, the ALJ's findings are not conclusive when they are "derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). The ALJ discounted the opinions of the Arbour professionals because she determined that Larocque began to show signs of improvement in late 2011. In doing so, the ALJ both ignored evidence and judged matters entrusted to experts.

First, as Larocque points out, the same physician's notes that the ALJ relied on for this conclusion also indicate that Larocque reported increased depression, feelings of isolation and frustration, passive/avoidant behavior, anxiety, and suicidal ideation between February and September 2012. See Admin. R. at 603, 606, 607, 618, 620, 621. While it is for the ALJ to assess the facts, the ALJ is "not at liberty to ignore medical evidence." Nguyen, 172 F.3d at 35. Here, the ALJ appears to have picked and chosen only the facts that supported her conclusion that Larocque's condition improved beginning in late 2011 without explaining-or, so far as the court can tell- considering the contrary evidence in reports from the same time period, including those self-same reports. This is particularly problematic in the context of bipolar disorder, which is recognized as causing good days and bad days, or good periods and bad periods. See Bauer v. Astrue, 532 F.3d 606, 607 (7th Cir. 2008); Matta v. Astrue, 508 F.Appx. 53, 57 (2d Cir. 2013).

This error is compounded by the fact that none of the medical opinions reviewed by the ALJ conclude that Larocque's condition improved. To the contrary, the only opinions drafted after this alleged period of improvement began-those of Dr. Gaticales in May 2012 and Ms. Brugman in June 2012-concluded that Larocque's impairments were "ongoing, creating an expectation... that they will last at least twelve months." Admin. R. at 502, 590, 598. Ms. Rhinelander and Ms. Brugman further explained in July 2012 that Larocque continued to experience "intense, severe mood swings" which make it "challenging for her to function at a stable, consistent level for any period of time." Admin R. at 600. In making an independent determination that Larocque's condition improved beginning in late 2011-a determination contrary to all of the medical opinions concerning that time period-the ALJ impermissibly "substituted [her] own judgment for medical opinion." Alcantara, 257 F.Appx. 333, 334 (1st Cir. 2007) (unpublished).

Larocque further argues that the ALJ erred by failing to give Dr. Gaticales's opinion controlling weight as the opinion of a treating source, or by providing "good reasons" for not affording it that controlling weight as required by 20 C.F.R. § 404.1527(c)(2). The Acting Commissioner argues, on the other hand, that Dr. Gaticales's opinion is not entitled to controlling weight because Dr. Gaticales is not, in fact, a treating source- Dr. Gaticales never examined Larocque, and the record contains no evidence of an "ongoing treatment relationship" between Larocque and Dr. Gaticales. See 20 C.F.R. § 404.1502 ("Treating source means your own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you."). While the ALJ appears to have erroneously called Dr. Gaticales a "treating provider, "[3] the court need not definitively resolve question of her status here. Even considering Dr. Gaticales as a nontreating source, as explained supra, the ALJ's decision to give her opinion "little weight" is simply not supported by substantial evidence.

As the Acting Commissioner also points out, the opinions of Ms. Rhinelander and Ms. Brugman, as Larocque's therapist and the registered nurse who managed her prescriptions, are not "acceptable medical sources." See 20 C.F.R. § 404.1513(a); Social Security Ruling ("SSR") 06-03p, Titles II and XVI: Considering Opinions and Other Evidence from Sources Who Are Not "Acceptable Medical Sources" in Disability Claims, 2006 WL 2329939, at *2 (S.S.A. 2006). They are, however, "other medical sources" whose opinions cannot be used to establish disability but can-as they are here-be used to "show the severity of [the claimant's] impairment(s) and how it affects [the claimant's] ability to work." 20 C.F.R. § 404.1513(d). The ALJ should therefore "explain the weight given to opinions from these other sources, ' or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case." SSR 06-03p, 2006 WL 2329939, at *6. The ALJ may use the factors set out in 20 C.F.R. § 404.1527(d) to evaluate the medical opinions from "other medical sources." Id. at *4.

While the Acting Commissioner is correct that the ALJ need not explicitly take account of all of the factors articulated in 20 C.F.R. § 404.1527(c) in determining what weight to give to a medical opinion or an opinion from an "other medical source, " the court must at the least be able to discern the rationale the ALJ used to reach her determination, and that rationale must be supported by substantial record evidence. Here, the rationale provided ...

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