Chapdelaine v. Colvin

Filing 22

Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. MEMORANDUM AND ORDER REGARDING PLAINTIFF'S 12 MOTION FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S 17 MOTION FOR JUDGMENT AFFIRMING THE COMMISSIONER'S DECISION ; for the reasons stated, Defendant's Motion is DENIED and Plaintiff's Motion is GRANTED. It is further ordered that the matter be remanded for a new hearing. See attached Memorandum and Order for complete details. (Calderon, Melissa) Modified on 3/24/2015 to correct ELECTRONIC ORDER to MEMORANDUM AND ORDER. (Finn, Mary).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LEANA MARIE CHAPDELAINE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration,
Defendant.

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Civil Action No. 14-cv-30081-KAR

MEMORANDUM AND ORDER REGARDING
PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT’S
MOTION FOR JUDGMENT AFFIRMING THE COMMISSIONER’S DECISION
(Docket Nos. 12, 17)
ROBERTSON, U.S.M.J.
Leana Marie Chapdelaine (“Plaintiff”) brings this action pursuant to 42 U.S.C. §§
1383(c)(3) and 405(g) for judicial review of a final decision by the Commissioner of the Social
Security Administration (“Commissioner”) denying her Supplemental Security Income (“SSI”)
and Social Security Disability Insurance (“SSDI”) benefits. Plaintiff contends that the
Commissioner’s decision denying her such benefits, memorialized in a February 5, 2013
decision of an administrative law judge (“ALJ”), is in error. She has filed a motion for judgment
on the pleadings seeking to remand the decision, while the Commissioner has moved to affirm.
The parties have consented to this court’s jurisdiction. See 28 U.S.C. § 636(c); Fed. R.
Civ. P. 73. For the reasons that follow, the court will allow Plaintiff’s motion for remand and
will deny the Commissioner’s motion to affirm.

I. DISCUSSION
The parties are well aware of the factual and procedural history of this case, the standard
of review, and the applicable five-step sequential analysis. Plaintiff advances two arguments
challenging the ALJ’s decision. First, she asserts that the ALJ improperly ignored certain
evidence and, as a result, failed to consider additional mental limitations with respect to her
residual functional capacity (“RFC”).1 Second, Plaintiff contends that the ALJ erred when he
rejected the disability decision of the Department of Veterans Affairs for purposes of assessing
her RFC. The court will address these arguments in reverse order because resolution of the
second depends, in part, on the court’s resolution of the first.
A. Department of Veterans Affairs Disability Decision
Plaintiff argues that the ALJ erred when he improperly rejected the Department of
Veterans Affairs (“VA”) decision that found her disabled. The Commissioner’s regulations
provide that, “a disability . . . determination [must be] based on social security law. Therefore, a
determination made by another agency that [a plaintiff is] disabled . . . is not binding.” 20 C.F.R.
§§ 404.1504, 416.904. Indeed, the Commissioner is solely responsible for making the final
decision as to whether an individual is disabled for purposes of social security benefits. 20
C.F.R. §§ 404.1527(e), 416.927(e).
That being said, evaluation of “all the evidence in the case record that may have a bearing
on [the Commissioner’s] determination or decision of disability, including decisions by other
governmental and nongovernmental agencies” is “required.” Social Security Ruling (“SSR”) 06–

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The ALJ found that Plaintiff had severe impairments of post-traumatic stress disorder (“PTSD”),
affective disorder, and panic disorder without agoraphobia. (A.R. 16.) Taking into account those
impairments, the ALJ assessed Plaintiff as having the RFC to perform “a full range of work at all
exertional [sic] levels” but “limited to work consisting of simple, routine tasks and unskilled tasks, with
simple work-related decisions with few workplace changes” and “occasional interaction with the general
public, coworkers, and supervisors.” (A.R. 18.)

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03P, 2006 WL 2329939, *6 (Aug. 9, 2006). “[E]vidence of a disability decision by another
governmental or nongovernmental agency cannot be ignored and must be considered.” Id. (“We
will evaluate the opinion evidence from medical sources, as well as ‘non-medical sources’ who
have had contact with the individual in their professional capacity, used by other agencies, that
are in [the] case record, in accordance with 20 CFR 404.1527, 416.927, Social Security Rulings
96-2p and 95-5p, and the applicable factors listed [] in the section ‘Factors for Weighing Opinion
Evidence.”). While the relevance of a determination of disability made by another agency may
be limited, “the adjudicator should explain the consideration given to these decisions in the
notice of decision for hearing cases.” Id.
Here, the ALJ stated only that he did “not accept the VA decision of disabled, as such
program does not have the same criteria as that of the Social Security Administration.” (A.R.
21.) This statement is insufficient to explain the ALJ’s consideration - and ultimate rejection - of
the VA disability decision. Although the ALJ did refer in his RFC analysis to some of the
evidence underlying the VA finding of disability, including notations from the assessment
conducted by psychologist Emily Britton, Psy.D. (“Ms. Britton”) at the Veterans Affairs Medical
Center (“VAMC”), the only evidence he cited appears to contravene Plaintiff’s claim of
disability, yet the VA found this and other evidence from the VAMC sufficient to deem Plaintiff
seventy percent disabled for a certain period of time. Even more, it is unclear from the decision
what weight, if any, he gave to Ms. Britton’s opinion or to the opinions of other medical sources
from the VAMC. Thus, while “merely ignoring an administrative conclusion [may not be] error
per se,” in this case, “it is more troubling [where] relevant evidence of disability [that] form[ed]
the basis of the [VA] finding is in the record and [was seemingly] ignored.” Dube v. Astrue, 781

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F. Supp. 2d 27, 37 n.16 (D.N.H. 2011) (citing Bickford v. Barnhart, 242 F. Supp. 2d 39, 42 (D.
Me. 2002) (error to ignore medical evidence in VA records)).
Plaintiff further contends that the ALJ erroneously determined that Ms. Britton was not a
medically appropriate source for purposes of providing a global assessment of function (“GAF”)
score. Specifically, Plaintiff cites to the ALJ’s statement that, “the GAF of 42, as assessed in the
report, does not appear to come from a medically appropriate source as required per Social
Security regulations.” (A.R. 20.) The ALJ also stated that, “[a]lthough the [Plaintiff] was
assessed a GAF of 45, it was by Emily Britton, Psy.D., a non-psychiatrist.” (A.R. 21.) This is
not an appropriate basis for failing to give controlling weight to or discrediting Ms. Britton’s
opinion. A licensed or certified psychologist is considered an “acceptable medical source.” 20
C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). “Acceptable medical sources” provide medical
opinions that are “always consider[ed],” 20 C.F.R. §§ 404.1527(b), 416.927(b), and such
opinions, when not accorded controlling weight, are to be considered in light of the factors listed
in sections 404.1527(c)(1)-(6) and 416.927(c)(1)-(6). See 20 C.F.R. §§ 404.1527(c), 416.927(c).
The ALJ erred in failing to treat Ms. Britton as an acceptable medical source and considering her
opinion accordingly. For these reasons alone, remand would be warranted; however, the court
will address Plaintiff’s additional argument.
B. ALJ’s Residual Functional Capacity Assessment
Plaintiff further argues that the ALJ improperly dismissed certain evidence, including
evidence from her treating sources, which supports an RFC assessment of her mental abilities
that is more limited than the ALJ’s assessment. Specifically, Plaintiff asserts that the ALJ
disregarded: (1) records from the VAMC, dated March 5, 2009, through January 14, 2011; (2) a

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progress note from Meredith McCarran, Ph.D.;2 (3) the VA disability decision; and (4) a mental
residual functional capacity assessment by J. Litchman, Ph.D., a Disability Determination
Services consultant.
An ALJ’s written decision need not directly address every piece of evidence in the
administrative record if it is cumulative of evidence previously discussed by the ALJ or if it fails
to support the claimant’s position. Lord v. Apfel, 114 F. Supp. 2d 3, 13 (D.N.H. 2000). “At the
same time, the First Circuit and district courts in this circuit have held that an ALJ may not
simply ignore relevant evidence, especially when that evidence supports a claimant’s cause.” Id.
“While an ALJ, not the reviewing court, resolves conflicts in the evidence, an ALJ may not
adopt one view of the evidence ‘without addressing the underlying conflict.’” Dube, 781 F.
Supp. 2d at 35 (quoting Nguyen v. Callahan, 997 F. Supp. 179, 182 (D. Mass. 1998)).
“Moreover, a court must be able to determine whether the ALJ considered the contrary evidence
and chose to discredit it, or whether it was ‘simply ignored.’” Dube, 781 F. Supp. 2d at 35
(quoting Lord, 114 F. Supp. 2d at 14); see Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)
(“[W]e need from the ALJ not only an expression of the evidence s/he considered which
supports the result, but also some indication of the evidence which was rejected. In the absence
of such an indication, the reviewing court cannot tell if significant probative evidence was not
credited or simply ignored.”).
This requirement of transparency is reflected in the Commissioner’s regulations as
follows: An administrative law judge must give controlling weight to the opinion of a “treating
source” when that opinion is well-supported by medically acceptable clinical and laboratory

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Although Plaintiff contends that the ALJ ignored an assessment by Cathy Foley of the Springfield Vet
Center, no evidence of treatment with Ms. Foley is included in the record. Rather, the assessment to
which Plaintiff refers is an October 20, 2011 progress note from Meredith McCarran, Ph.D., that was
provided to Plaintiff’s attorney by Ms. Foley.

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diagnostic techniques and is consistent with substantial evidence in the record. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2); see SSR 06-03P, 2006 WL 2329939, *2 (Aug. 9, 2006) (“[O]nly
‘acceptable medical sources’ can be considered treating sources, as defined in 20 CFR 404.1502
and 416.902, whose medical opinions may be entitled to controlling weight.”). When an
administrative law judge does not accord a treating source’s opinion controlling weight, he or
she must consider the length, nature and extent of the treatment relationship, the opinion’s
supportability and consistency with the record as a whole, the treating source’s area of
specialization, and any other relevant factors to determine the weight the opinion deserves. See
20 C.F.R. §§ 404.1527(c), 416.927(c). The administrative law judge must also provide “good
reasons” for the weight ultimately assigned to the treating source opinion. See 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). Moreover, an administrative law judge may not “ignore ‘other
medical sources’ or fail to adequately explain the weight given to such evidence.” Taylor v.
Astrue, 899 F. Supp. 2d 83, 88 (D. Mass. 2012). Again, he or she “must adequately explain his
treatment of the [other medical sources’] opinion so that a reviewer can determine if the decision
is supported by substantial evidence.” Id. at 88-89.
Here, as Plaintiff asserts, the ALJ improperly limited his RFC analysis to discussing
evidence that supported his conclusion and ignored evidence, particularly from the VAMC, that
appears to support Plaintiff’s claim. See Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)
(“ALJ’s findings of fact . . . are not conclusive when derived by ignoring evidence, misapplying
the law, or judging matters entrusted to experts.”). Indeed, after noting that he based his RFC
determination primarily on state agency opinions, the ALJ went on to highlight certain evidence
that, in his view, was in accordance with those opinions.3 (A.R. 20.) “For a reviewing court to

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The ALJ also neglected to name the sources of the evidence he was discussing, further complicating the
review process. (A.R. 20.)

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be satisfied that an ALJ’s decision was supported by substantial evidence,” however, the
“decision must take into account whatever in the record fairly detracts from its weight.” Lord,
114 F. Supp. at 14. Here, the ALJ failed to explain his reasons for not crediting evidence that
was inconsistent with his conclusion.
The ALJ also neglected to indicate what weight he assigned to the opinions of Plaintiff’s
treating and evaluating sources, including, for example, Ms. Britton from the VAMC. The ALJ
stated that he relied “primarily on the state agency medical opinions” because they were “most
consistent with the medical evidence of record and other evidence viewed as a whole,” and he
thus accorded them “significant weight.” (A.R. 19, 21.) This is the sole mention of any
valuation of evidence in the decision, and the ALJ failed to point to the inconsistencies in the
record that would support such a statement.4 In fact, as stated above, the record contained
treating source opinions, like that of clinical psychologist Allen Bernhardt, Ph.D. from the
VAMC, which would tend to support Plaintiff’s claim of disability. The court is not permitted to
guess at the weight the ALJ meant to accord to the medical sources of record, including the state
agency sources. This does not mean that the record necessarily demands reversal of the ALJ’s
decision. Rather, remand for further explanation is appropriate, where, as here, the ALJ
“[f]ail[ed] to provide an adequate basis for the reviewing court to determine whether the
administrative decision is based on substantial evidence.” Crosby v. Heckler, 638 F. Supp. 383,
385-386 (D. Mass. 1985).

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The ALJ did find that Plaintiff’s “statements concerning the intensity, persistence and limiting effect of
[her] symptoms [were] not entirely credible.” (A.R. 19.) He also stated that Plaintiff’s treatment is
currently not “commensurate with her claims of disabling limitations of function.” (Id.) Although the
ALJ determines credibility, it is unclear from the decision how his credibility determination related to the
consideration of, and, ultimately, what weight was accorded to, the various medical opinions of record.
Moreover, the decision appears to address Plaintiff’s impairments at the present time, as opposed to her
impairments at her alleged onset date.

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Finally, the First Circuit has explained that, “absent a residual functional capacity
assessment from an examining psychiatrist, we do not think that [an] ALJ is equipped to
conclude that [a Plaintiff’s] condition [presents] no significant limitation on ability to work.”
Rivera-Figueroa v. S.H.H.S., 858 F.2d 48, 52 (1st Cir. 1988); see, e.g., Rivera-Torres v.
S.H.H.S., 837 F.2d 4, 7 (1st Cir. 1988); Vigo Ramos v. Comm. of Soc. Sec. Admin., 241 F. Supp.
2d 139, 142 (D.P.R. 2003). Indeed, remand may be warranted where an RFC assessment is not
performed by an examining physician. See Heggarty v. Sullivan, 947 F.2d 990, 997 n.1 (1st Cir.
1991). On March 30, 2011, J. Litchman, Ph.D., a state agency reviewing source, found Plaintiff
capable of sustaining attention and concentration for two-hour time-spans in an eight-hour day
for simple routines and able to sustain persistence and pace for eight hours per day, five days per
week for simple routines. (A.R. 19, 350.) Dr. Litchman also found Plaintiff incapable of dealing
with the general public but able to handle brief interactions with workers and bosses when
needed, as well as capable of adjusting to minor changes in simple tasks. (A.R. 19, 350). The
ALJ stated that he relied primarily on the state agency sources in making his RFC determination.
(A.R. 19, 21.) Therefore, it appears that the ALJ’s RFC assessment was based, at least in part,
on a state agency reviewing source’s determination rather than an examining source’s
determination. If so, this point must be addressed by the ALJ. Moreover, an administrative law
judge may not insert his or her own opinion into such an assessment. See Vigo Ramos, 241 F.
Supp. 2d at 142 (administrative law judge, as a lay fact finder, “lacks the expertise to make a
medical conclusion”).5 Given all of the concerns discussed above, the court is unable to conduct
a proper review and must remand the matter.

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The ALJ explained his reasoning for the RFC determination, as follows: “The limit to simple tasks
accounts for possible distractions from the claimant’s psychological symptoms, yet remains consistent
with activities of daily living including caring for pets and attending Bible study. I find [Plaintiff] is
limited to occasional interaction with the general public, coworkers, and supervisors, given her reports of

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II. CONCLUSION
For the reasons stated, Defendant’s Motion for Order Affirming the Decision of the
Commissioner is DENIED, and Plaintiff’s Motion for Judgment on the Pleadings is GRANTED.
It is further ordered that the matter be remanded for a new hearing.
It is So Ordered.

/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
United States Magistrate Judge

DATED: March 23, 2015

irritability and panic in crowds. I do note that [Plaintiff] was able to present herself in college and trade
school classrooms and is able to attend church and Bible study; thus, I do not find she needs to be totally
precluded from all public contact.” (A.R. 21.)

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