Gregoire v. US Social Security Administration, Acting Commissioner
Filing
16
///ORDER granting 8 Motion to Reverse Decision of Commissioner; denying 9 Motion to Affirm Decision of Commissioner. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gabrielle Marie Gregoire
v.
Civil No. 13-cv-544-JL
Opinion No. 2015 DNH 035
Carolyn Colvin, Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
Gabrielle Marie Gregoire appeals the Social Security
Administration’s (“SSA”) denial of her application for disability
insurance benefits.
An administrative law judge at the SSA
(“ALJ”) ruled that, despite her severe impairments of obesity and
obstructive sleep apnea, Gregoire retains the residual functional
capacity (“RFC”) to perform her past relevant work as a hair
stylist and assembler, and, as a result, is not disabled.
C.F.R. § 404.1505(a).
See 20
The Appeals Council denied Gregoire’s
request for review of the ALJ’s decision, see id. § 404.968(a),
with the result that the ALJ’s decision became the SSA’s final
decision on Gregoire’s application, see id. § 404.981.
Gregoire
then appealed the decision to this court, which has jurisdiction
under 42 U.S.C. § 405(g) (Social Security).
Gregoire has filed a motion to reverse the decision.
L.R. 9.1(b)(1).
See
Among other things, she argues that the ALJ, in
concluding that she was capable of performing her past relevant
work, improperly weighed the medical opinions of record.
The
Commissioner of the SSA maintains that the ALJ committed no error
and has cross-moved for an order affirming the decision.
L.R. 9.1(d).
See
After careful consideration, the court concludes
that although the ALJ gave sufficient reasons for discounting the
opinion of Gregoire’s treating physician, he erred in relying
upon the competing opinion of a non-examining state agency
medical consultant who had not had the opportunity to review all
the evidence of record.
The court thus grants Gregoire’s motion
to reverse (and denies the Commissioner’s motion to affirm) the
ALJ’s decision.
In evaluating Gregoire’s RFC, the ALJ had two medical
opinions at his disposal:
that of Gregoire’s treating physician,
Dr. W. Kent Smith, and that of a state agency medical consultant,
Dr. James Trice.
Dr. Trice’s opinion, rendered in August 2011–-
shortly after Gregoire had applied for disability insurance
benefits, and, significantly, prior to when much of the medical
evidence was added to the record–-was that Gregoire’s obesity
caused some exertional limitations.
Specifically, Dr. Trice
found that Gregoire was capable of lifting and/or carrying 20
pounds occasionally, and 10 pounds frequently; could stand and/or
walk about six hours in an eight-hour workday; and could sit for
about six hours in an eight-hour workday.
2
Dr. Smith, who rendered his opinion roughly 10 months later,
believed that Gregoire’s obesity, coupled with lower extremity
edema, imposed significantly more severe exertional limitations,
i.e., she could lift and/or carry only 10 pounds occasionally,
and less than that frequently; she could stand and walk less than
two hours in an eight-hour workday; she could sit less than two
hours in an eight-hour workday; and she required position changes
every 30 minutes.
In addition, Dr. Smith opined, Gregoire could
never stoop, crouch, or climb stairs or ladders, and could twist
only occasionally.
Dr. Smith further reported that Gregoire
should avoid all exposure to extreme cold or heat; humidity;
fumes, odors, dusts, gases, and the like; or hazards such as
machinery or heights.
Such environmental elements, he explained,
could “aggravate[]” Gregoire’s asthma.
In summary, Dr. Smith
opined, Gregoire was incapable of working eight hours per day,
five days per week.
The ALJ afforded Dr. Trice’s opinion “substantial weight,”
finding it to be “consistent with the medical evidence as a
whole.”
In contrast, the ALJ afforded “limited weight” to Dr.
Smith’s opinion, reasoning that the limitations he identified
were “not supported by his treatment notes or the evidentiary
record as a whole.”
The ALJ continued, explaining:
[P]hysical examinations consistently demonstrate no
swelling or tenderness of [Gregoire’s] extremities.
3
She has had normal muscle strength and tone. There has
been no observable edema at her sock lines. Throughout
much of the record, her obstructive sleep apnea is
noted as mild. Furthermore, treatment notes fail to
document the claimant’s report of such limitations.
Adopting Dr. Trice’s opinion essentially in full, the ALJ
concluded that Gregoire “has the residual functional capacity to
perform the full range of light work as defined in 20 C.F.R. §
404.1567(b).”
Gregoire maintains that the ALJ’s allocation of
weight to the competing medical opinions, and, resultantly, this
conclusion, was erroneous.
While the court does not agree that
the ALJ erred in affording “limited weight” to Dr. Smith’s
opinion, it does agree that the ALJ could not have relied
entirely on Dr. Trice’s opinion in determining Gregoire’s RFC.
The court first addresses Dr. Smith’s opinion.
In arguing
that the ALJ should have afforded more weight to it, Gregoire
predictably invokes the SSA’s rule that ALJs should “[g]enerally
. . . give more weight to opinions from [the claimant’s] treating
sources,” and, even if controlling weight is not afforded the
opinion of a treating source, should “give good reasons” for the
weight given.
20 C.F.R. § 404.1527(c)(2).
“The ‘good reasons’
requirement mandates that the ALJ’s order ‘must contain specific
reasons for the weight given to the treating source’s medical
opinion, supported by evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers
4
the weight the adjudicator gave to the treating source’s medical
opinion and reasons for that weight.”
Delafontaine v. Astrue,
2011 DNH 005, at 38-39 (quoting Social Security Ruling (“SSR”)
96-2p, Titles II and XVI: Giving Controlling Weight to Treating
Source Medical Opinions, 1996 WL 374188, at *5 (S.S.A. 1996)).
The ALJ’s stated reasons for discounting Dr. Smith’s opinion are
not “good,” Gregoire asserts, because they are not supported by
evidence in the case record, and, in fact, contradict Dr. Smith’s
treatment notes.
So Gregoire, attempting to rebut the ALJ’s statement as to
the lack of “swelling,” “tenderness,” and “observable edema” in
her extremities, claims that “Dr. Smith’s progress notes . . .
consistently document that [she] continued to have worsened lower
extremity edema.”
Mot. to Reverse (document no. 8) at 5 (citing
Admin. R. at 187, 213, 217, 223).
document any such thing.
The notes in question do not
What they document is that Gregoire
complained of edema in her legs during her visits to Dr. Smith.
Later in his notes from the very same visits, however, Dr. Smith
reports that (exactly as the ALJ noted) his physical examinations
did not reveal any swelling, tenderness, or edema.1
1
See Admin.
Gregoire’s memoranda endeavor to explain why Dr. Smith did
not note any objective signs of swelling, tenderness, or edema.
She speculates, for example, that she might have experienced some
improvement in her edema by keeping her legs elevated, Mot. to
Reverse (document no. 8) at 5, and points out that many of her
5
R. at 189, 214, 219, 225.
So the ALJ’s observation that the
medical record did not contain objective evidence confirming the
supposed severity of Gregoire’s edema was right on the mark,
Gregoire’s subjective reports notwithstanding.
Gregoire also argues that the fact that her edema improved
over time is not grounds for disregarding Dr. Smith’s opinion.
It is true that a claimant’s successful response to treatment is
not sufficient grounds upon which to reject a treating medical
source’s opinion.
See, e.g., Scott v. Astrue, 647 F.3d 734, 739-
40 (7th Cir. 2011); Rodriguez v. Bowen, 876 F.2d 759, 763 (9th
Cir. 1989).
But the ALJ did not cite “improvement” of Gregoire’s
edema as one of the reasons he declined to afford much weight to
Dr. Smith’s opinion; as just noted, the ALJ relied on the lack of
objective evidence supporting that opinion, a factor suggesting
that the assessment was based on Gregoire’s own subjective
complaints.
It is well-established that an ALJ may reject the
opinion of a treating physician for such reasons.
See, e.g.,
Reeves v. Barnhart, 263 F. Supp. 2d 154, 161 (D. Mass. 2003) (ALJ
visits with Dr. Smith took place in the morning, when, according
to her subjective reports, her edema was normally improved, see
Reply Memo. (document no. 13) at 3. Reconciling the record
evidence, however, is the ALJ’s purview, see, e.g., Marshall v.
Colvin, 2015 DNH 010, at 3, and this court cannot “reweigh the
evidence or substitute its own judgment for that of the ALJ,”
Montero v. Colvin, 2013 DNH 108, at 5 (internal quotation marks
omitted). In any event, Gregoire is free on remand to attempt to
persuade the ALJ to reconsider his view of this evidence.
6
did not err in discounting treating physician opinions that were,
“for the most part, based on [the claimant’s] own descriptions of
pain and lack[ed] objective medical findings”); see also Hobart
v. Astrue, 11-cv-151, 2012 WL 832883, at *9 (D.N.H. Feb. 9, 2012)
(McCafferty, Mag. J.) (similar).
The ALJ’s decision to give
“limited weight” to Dr. Smith’s opinion was supported by the
record and explained in sufficient detail to satisfy the “good
reasons” requirement.2
2
In what appears to be an attempt to bolster Dr. Smith’s
opinion, Gregoire points to a 2011 sleep study that concluded
that she suffered from moderately severe obstructive sleep apnea.
Although Gregoire claims that this study “provides objective
evidence supporting Dr. Smith’s assessment,” Mot. to Reverse
(document no. 8) at 6, the court is at a loss to see how the
study supports Dr. Smith’s opinion as to Gregoire’s ability to
perform work-related activities when Dr. Smith himself does not
claim to have relied upon that diagnosis when rendering that
opinion. Rather, as mentioned above, the only diagnoses Dr.
Smith cited in his opinion were “morbid obesity,” “lower
extremity edema,” and “asthma.”
In her reply memorandum, Gregoire also argues that the ALJ,
in evaluating Dr. Smith’s opinion, failed to adequately consider
each of the factors identified in 20 C.F.R. § 404.1527(c) as
relevant to determining the weight to be given a medical opinion.
That argument was not particularly well-developed in Gregoire’s
opening memorandum–-only a single sentence in that memorandum
expressly makes reference to the ALJ’s alleged “fail[ure] to
reflect sufficient consideration of the regulatory factors”–-and
is arguably waived. See, e.g., Hypertherm, Inc. v. Amer. Torch
Top Co., 2008 DNH 216, at 6 n.5. It is also unavailing. More
detail in the ALJ’s opinion would have been preferable (and the
court would encourage the ALJ on remand to address those factors
in more detail). But an ALJ need “not explicitly take account of
all the factors articulated in” § 404.1527(c), so long as the
court is “able to discern the rationale the ALJ used to reach his
determination and that determination is founded on ‘good reasons’
that are supported by substantial record evidence.” Figueroa v.
7
The court’s inquiry cannot end there, however; that the
record supports the ALJ’s allocation of weight to Dr. Smith’s
opinion is irrelevant if it does not also support the ALJ’s
reliance on Dr. Trice’s opinion.
It does not.
As previously
discussed, in affording “substantial weight” to Dr. Trice’s
opinion–-which, again, appears to have formed the primary, if not
the sole, basis for the ALJ’s opinion that Gregoire remains
capable of performing the full range of light work–-the ALJ found
that opinion to be “consistent with the medical evidence as a
whole.”
As Gregoire points out, however, Dr. Trice rendered that
opinion without the benefit of significant medical evidence–medical evidence that, in some respects, contradicts the facts
related in his opinion.
For example, records postdating Dr. Trice’s opinion indicate
that, contrary to his notation that Gregoire had “refuse[d] CPAP” (continuous positive airway pressure), see Admin. R. at 45,
Gregoire had “tried and failed” that treatment, id. at 215; see
also id. at 248-49 (Gregoire “could not tolerate CPAP”).
Other
records from that period indicate that Gregoire’s asthma had, in
Dr. Smith’s opinion, “deteriorated” over time, and a physical
examination revealed “anterior wheezes” and an “increased
Astrue, 2012 DNH 101, at 15 (Barbadoro, J.).
that requirement is satisfied here.
8
As just discussed,
[expiratory] phase,” id. at 219, 229, both of which lend support
to that diagnosis and contradict Dr. Trice’s comment that “[o]n
physical examination she has no lung wheezing,” id. at 45.
And,
significantly, a sleep study performed in late 2011 concluded
that Gregoire suffered from “moderately severe” obstructive sleep
apnea, see id. at 247-49, when previous records had shown that
particular condition to be mild at worst.
As this court has previously held, “the fact that [a medical
expert] did not review later medical records does not necessarily
preclude the ALJ from relying on his RFC assessment.”
Astrue, 2011 DNH 169, at 11.
Ferland v.
“[A]n ALJ may rely on such an
opinion where the medical evidence post-dating the reviewer’s
assessment does not establish any greater limitations, or where
the medical reports of claimant’s treating providers are arguably
consistent with, or at least not clearly inconsistent with, the
reviewer’s assessment.”
marks omitted).
Id. (internal citation and quotation
Yet neither of those conditions is present here:
the evidence just described is not entirely consistent with Dr.
Trice’s assessment, and potentially establishes that Gregoire’s
impairments impose greater limitations than are reflected in the
records Dr. Trice had at his disposal.
Accordingly, it was error
for the ALJ to rely solely on Dr. Trice’s opinion in determining
Gregoire’s RFC.
See, e.g., Alcantara v. Astrue, 257 F. App’x
9
333, 334 (1st Cir. 2007); Padilla v. Barnhart, 186 F. App’x 19,
22 (1st Cir. 2006).
So while, for the reasons previously discussed, the ALJ was
justified in not relying on Dr. Smith’s opinion, he also could
not rely upon Dr. Trice’s opinion.
And, “[a]bsent a medical
advisor’s or consultant’s assessment of the full record, the ALJ
effectively substituted his own judgment for medical opinion.”
Alcantara, 257 F. App’x at 334.
This was error, for except in
the rare case “where the medical evidence shows relatively little
physical impairment,” Manso-Pizarro v. Sec’y of HHS, 76 F.3d 15,
17 (1st Cir. 1996)–-which is not this case–-an ALJ “cannot assess
the claimant’s RFC himself, ‘since bare medical findings are
unintelligible to a laypeson in terms of RFC.’”
Levesque v.
Colvin, 2014 DNH 191, at 2-3 (quoting Gordils v. Sec’y of HHS,
921 F.2d 327, 329 (1st Cir. 1990)).
Instead, the ALJ should make
an effort to obtain a reliable opinion as to the claimant’s RFC
by consulting a medical advisor to review the entirety of the
record and provide an opinion as to the nature and severity of
the claimant’s impairments.
See 20 C.F.R. § 404.1527(e)(2)(iii).
Because the ALJ did not do so here, the court is constrained to
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reverse the ALJ’s decision and remand this case to the SSA for
further consideration.3
For the foregoing reasons, Gregoire’s motion to reverse the
SSA’s decision4 is GRANTED, and the Commissioner’s motion to
affirm it5 is DENIED.
See 42 U.S.C. § 405(g).
The clerk shall
enter judgment accordingly and close the case.6
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: February 25, 2015
cc:
Raymond J. Kelly, Esq.
T. David Plourde, Esq.
3
Gregoire also argues that the ALJ (a) failed to properly
evaluate her subjective complaints and credibility, (b) “ignored”
her husband’s account of the severity of her impairments, and (c)
lacked substantial evidence to support his conclusion that she
could perform her past relevant work. While the court is
skeptical of those arguments, it need not reach them because the
ALJ’s error in relying upon Dr. Trice’s opinion necessitates
reversal and remand in and of itself.
4
Document no. 8.
5
Document no. 9.
6
Gregoire’s counsel is reminded that under L.R. 7.1(e)(1),
reply memoranda are limited to ten pages. Weighing in at eleven
pages, Gregoire’s reply memorandum violates the rule. As the
violation is de minimis, the court will take no remedial action,
but counsel is advised that the court expects compliance with all
applicable rules of procedure in the future.
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