Larocque v. US Social Security Administration, Acting Commissioner

Filing 15

///ORDER granting 9 Motion to Reverse Decision of Commissioner; denying 11 Motion to Affirm Decision of Commissioner. Case remanded to SSA for further consideration as outlined. 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
Megan Stacey Larocque
v.

Civil No. 14-cv-230-JL
Opinion No. 2015 DNH 102

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration

ORDER ON APPEAL
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 cross-

moved 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

2

Rhinelander, LCSW, and Ms. Teresa Brugman, APRN1; 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

1

Dr. Gaticales, Ms. Rhinelander, and Ms. Brugman are all
associated with Arbour Counseling Services, where Larocque
received treatment. Ms. Rhinelander, Larocque’s therapist,
completed a Psychiatric/Psychological Impairment Questionnaire
form on June 2, 2011. Dr. Gaticales, a psychologist, reviewed
Larocque’s file and completed a Psychiatric/Psychological
Impairment Questionnaire form on May 11, 2012. Ms. Brugman, a
registered nurse who manages Larocque’s prescriptions, completed
a Psychiatric/Psychological Impairment Questionnaire form on June
27, 2012. Ms. Rhinelander and Ms. Brugman also submitted letters
setting out their opinions concerning Larocque’s limitations on
August 2, 2011 and July 10, 2012. The ALJ referred to Dr.
Gaticales, Ms. Rhinelander, and Ms. Brugman, collectively, as
Larocque’s “treating providers.” Admin R. at 104. For
convenience and clarity, the court will refer to them as the
“Arbour professionals.”
3

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.
§ 404.1527(c).

20 C.F.R.

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.”
HHS, 676 F.2d 11, 12 (1st Cir. 1982).

Tremblay v. Sec’y of
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

4

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.”
R. at 104.

Admin.

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
5

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

2

The ALJ has provided no other rationale for her conclusions
that these opinions are “inconsistent with the record as a whole
and not well supported by the weight of the objective evidence.”
Admin. R. at 104. If by this ALJ refers to some other deficiency
or inconsistency between the opinions and the record, the ALJ has
run afoul of the requirement that the ALJ “clearly explain the
evidentiary basis of her RFC assessment.” Hynes v. Barnhart,
2004 DNH 189, 8. Without such an explanation, the court cannot
ascertain whether the ALJ’s conclusions are supported by
substantial evidence in the record. See Laplume v. Astrue, 2009
DNH 112, 16.
6

matters entrusted to experts.”
(1st Cir. 1999).

Nguyen v. Chater, 172 F.3d 31, 35

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.
603, 606, 607, 618, 620, 621.

See Admin. R. at

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. App’x 53, 57 (2d Cir. 2013).

7

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. App’x 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

8

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 non-

treating source, as explained supra, the ALJ’s decision to give
her opinion “little weight” is simply not supported by
substantial evidence.

3

Larocque also argues that, even if Dr. Gaticales is not
herself a treating source, she should be treated as such as part
of Larocque’s treatment team. However, the cases from the Courts
of Appeal for the Eighth and Ninth Circuits that Larocque relies
on for this proposition are inapposite here. In each of those
cases, the physician considered part of the treatment team had
evaluated the patient at least once and had ongoing
responsibilities as part of that team of healthcare providers.
See Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003);
Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1033 (9th Cir.
2003). Here, there is no evidence that Dr. Gaticales evaluated
Larocque at all, or did more than review the treatment notes of
Ms. Rhinelander and Ms. Burman before rendering her opinion.
9

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.”
03p, 2006 WL 2329939, at *6.

SSR 06-

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

10

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 by the ALJ for discounting the opinions of the Arbour
professionals is not supported by substantial record evidence.
Dr. Freeman
Larocque further argues that the ALJ erred by giving “little
weight” to the opinion of Dr. Freeman, the Administration’s own
examining psychologist, who examined Larocque in January 2011 and
concluded that it was “doubtful that [Larocque] would be able to
effectively handle the duties and responsibilities in a work
setting” because “she would become overwhelmed and would be
unable to function on a job.”

Admin. R. at 479.

The ALJ gave Dr. Freeman’s opinion little weight after
concluding that, like those of the Arbour professionals, it was
“inconsistent with the record as a whole and poorly supported by
the objective medical evidence.”

Admin. R. at 103.

But, as with

the Arbour professionals, the ALJ failed to provide any
supporting rationale for this conclusion, merely “not[ing] that
this opinion was made in January 2011, right around the time the
claimant began to see an improvement in her condition, and thus

11

does not appropriately reflect the gains the claimant made in
therapy over time.”

Admin. R. at 103.

The opinions of examining sources are typically given
greater weight than non-examining sources.

See Alcantara, 257 F.

App’x. at 334 (examining opinions merit more prima facie
credibility than non-examining sources).

Whether the source of

the medical opinion has examined the claimant is particularly
relevant where mental illness is at issue.

See Westphal v.

Eastman Kodak Co., No. 05–6120, 2006 WL 1720380, at *5 (W.D.N.Y.
June 21, 2006) (“[I]n the context of a psychiatric evaluation, an
opinion based on personal examination is inherently more reliable
than an opinion based on a cold record because observation of the
patient is critical to understanding the subjective nature of the
patient's disease and in making a reasoned diagnosis.”).

Except

for the ALJ’s own opinion, no later medical opinion suggests that
Larocque’s condition improved after January 2011.

For the same

reasons that the ALJ erred in giving little weight to the Arbour
professionals, as explained supra, so the ALJ erred in giving
less weight to the opinion of the Administration’s examining
psychologist than to the non-examining sources.
Drs. Maliszewski and Shestopal
The Acting Commissioner argues that the ALJ correctly gave
“some weight” to the agency reviewing physicians, Drs.
12

Maliszewski and Shestapol.

Larocque contends that the ALJ erred

by giving the opinions of these non-examining physicians more
weight than those of the Arbour professionals and Dr. Freeman.
The court agrees with Larocque.
As this court has observed, an ALJ can rely “on the
assessments of non-testifying, non-examining physicians” in
adjudicating a claimant’s RFC, and conflicts between those
assessments and other medical testimony “are for the ALJ to
resolve.”

Morin v. Astrue, 2011 DNH 091, 9-10 (citing Tremblay,

676 F.2d at 12).

In fact, the ALJ is “required to consider the

opinions of state agency psychological consultants about the
nature and severity of an applicant’s impairments because state
agency consultants ‘are experts in the Social Security disability
programs.’”

Grant, 2015 WL 1292240, at *3 (quoting SSR 96-6p,

Titles II and XVI: Consideration of Administrative Findings of
Fact by State Agency Medical and Psychological Consultants and
Other Program Physicians, 1996 WL 374180, at *2 (S.S.A. 1996)).
However, a decision to resolve conflicts between assessments
against the claimant should only be affirmed when “that
conclusion has substantial support in the record.”
DNH 091, 10 (internal quotations omitted).

Morin, 2011

The ALJ’s assignment

of “some weight” to these opinions is not supported by
substantial evidence in the record.

13

Dr. Maliszewski, who prepared his opinion in July 2011,
opined that Larocque had “moderate limitations in activities of
daily living, moderate difficulties in maintaining social
functioning, and marked difficulties in maintaining
concentration, persistence and pace.”

Admin. R. at 104.

The ALJ

concluded that “the record does not show support for such
significant limitations,” but recognized “that the claimant
experiences legitimate limitations in social functioning and
concentration, persistence and pace,” and so gave Dr.
Maliszewski’s opinion “some weight.”

Admin. R. at 104-105.

The

ALJ provided no explanation for either of these conclusions.
Indeed, by this point, the ALJ had already discounted the
opinions of the Arbour professionals and Dr. Freeman as not
supported by the record or objective evidence.

Without further

explanation, it is difficult to understand on what basis the ALJ
determined that Larocque experienced “legitimate limitations in
social functioning, and concentration, persistence and pace” but
not the “significant limitations” that Dr. Maliszewski observed.
The ALJ’s treatment of Dr. Shestapol’s opinion is similarly
unenlightening.

In February 2011, Dr. Shestopal opined that

Larocque’s impairments were “severe but not expected to last 12
months.”

Admin. R. at 105.

The ALJ concluded that Dr.

Shestopal’s opinion was “consistent with the record to the extent

14

that the claimant’s mental impairments are severe,” but that
“there is ample evidence in the file to conclude that these
impairments would last more than 12 months.”4

Admin. R. at 105.

Given the ALJ’s conclusion that Dr. Shestopal’s opinion was
clearly inconsistent with the record, the ALJ’s decision to give
more weight to a non-examining source than an examining source is
in error.
Conclusion
The court is left to conclude that the ALJ determined, based
on selective evidence and without benefit of any medical opinion
to that effect, that Larocque’s condition began to improve in
late 2011.

On this basis, the ALJ discounted the medical opinion

evidence of every examining source and gave greater weight to
both his own unsupported conclusion and the opinions of nonexamining agency consultants despite also finding those opinions
unsupported by the record.

By doing so, the ALJ “effectively

substituted his own judgment for medical opinion.”
257 F. App’x at 334.

Alcantara,

This was error, for an ALJ “cannot assess

the claimant’s RFC himself . . . .”

4

Levesque v. Colvin, 2014

This conclusion is inconsistent with the ALJ’s finding that
Larocque’s condition began to improve within 12 months of Dr.
Shestopal’s opinion. See Admin R. at 103-04. As discussed
supra, the ALJ discounted the opinions of the examining sources
on that basis.
15

DNH 191, at 2-3.

Therefore, the court is constrained to reverse

the ALJ’s decision and remand this case to the SSA for further
consideration.5
For the foregoing reasons, Larocque’s motion to reverse the
SSA’s decision6 is GRANTED, and the Acting Commissioner’s motion
to affirm it7 is DENIED.

See 42 U.S.C. § 405(g).

The clerk

shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated: May 14, 2015
cc:

Eddy Pierre Pierre, Esq.
Brenda M. Golden Hallisey, Esq.
Robert J. Rabuck, Esq.

5

Larocque also argues that the ALJ erred by failing to
properly evaluate Larocque’s credibility and that the Appeals
Council erred by declining to consider a retrospective opinion
that was not before the ALJ during initial review. The court
need not reach these arguments because the ALJ’s error in
weighing the opinion evidence necessitates reversal and remand in
and of itself.
6

Document no. 9.

7

Document no. 11.
16