Chapin v. SSA CV-11-286-JL 9/28/12

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Debra Ann Chapin

v. Civil N o . 11-cv-286-JL Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

SUMMARY ORDER

Debra Ann Chapin has appealed the Social Security

Administration’s denial of her application for Social Security

Disability Insurance benefits. An administrative law judge at

the SSA (“ALJ”) ruled that, despite Chapin’s severe impairments

(including post-traumatic stress disorder and depression), she

retained the residual functional capacity (“RFC”) to perform her

past relevant work, see

(b), as a mail house

worker, so she was not disabled, see

§ 404.1520(a)(4)(iv).

Although this decision was selected for review by the SSA’s

Decision Review Board, see id. § 405.10(a)(1), it failed to

complete its review within the required time period, with the

result that the ALJ’s decision became the SSA’s final decision on

Chapin’s application, see id. § 405.420(a)(2). Chapin then

appealed the decision to this court, which has jurisdiction under

(g) (Social Security appeals). Chapin has filed a motion to reverse the decision. See L.R.

9.1(b)(1). She argues that the ALJ, in concluding that Chapin

had the RFC to perform her past relevant work, erroneously gave

more weight to the opinion of a consulting expert who did not

treat her than to the opinions of other medical sources,

including some of her treating physicians. The Commissioner of

the SSA has cross-moved for an order affirming the ALJ’s

decision. See L.R. 9.1(d). He argues that the ALJ properly gave

limited weight to the opinions of Chapin’s treating physicians

because they were “inconsistent with the other substantial

evidence in [her] case record,” and supportably found that those

opinions (as well as those of other medical professionals who did

not treat her) were less persuasive than the opinions of the

consulting experts according to the applicable criteria.

(c)(2).1

In making disability determinations, the SSA generally

“give[s] more weight to opinions from [the applicant’s] treating

sources, since these sources are likely to be the medical

professionals most able to provide a detailed, longitudinal

picture of [the applicant’s] medical impairment(s).”

If the

1 For ease of reference, the court has cited to the subsection numbers of the rule currently in effect, rather than those of the rule in effect at the time of the ALJ’s decision. See

, 10656 (Feb. 2 3 , 2012) (renumbering these provisions without changing their substance).

2 SSA “find[s] that a treating source’s opinion on the issue(s) of

the nature and severity of [the applicant’s] impairment[s] is

well supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other

substantial evidence in [the] case record, [the SSA] will give it

controlling weight.”

Even i f , applying these criteria, a

medical source’s opinion is not entitled to controlling weight,

the SSA must still apply a series of specified factors in

deciding what weight to give i t . See

These factors include:

(1) the length of the treatment relationship and the frequency of examination;

(2) the nature and the extent of the treatment relationship;

(3) the relevant evidence that the treating source provides to support the opinion;

(4) the consistency of the opinion with the record as a whole;

(5) whether the opinion is from a source who specializes in medical issues related to the opinion; and

(6) any other factors tending to support or contradict the opinion.

§§ 404.1527(c)(2)-(6).

Chapin argues that the ALJ misapplied these rules in giving

only limited weight to the opinions of four medical

professionals: two psychiatrists, Abby Reinick and Ekaterina

Hurst; a psychologist, Tracey Allyson; and a therapist, Melissa

3 Perrino. In fact, as the Commissioner points out, the ALJ

expressly found that each of these opinions was inconsistent with

other record evidence--which, in each case, he identified--so

that the opinion did not merit controlling weight, even if it

came from a treating medical source. The ALJ also properly

considered the applicable factors in assigning weight to the

opinions of certain medical sources over others insofar as they

bore upon Chapin’s residual functional capacity.

Reinick, Hurst, and Perrino are providers who saw Chapin at

West Central Behavioral Health Center, a community mental health

clinic, beginning in spring 2009 and continuing into 2010. The

ALJ gave only “limited weight” to “[t]he opinions from the

providers at West Central Behavioral Health,” including Dr.

Reinick’s opinion that Chapin was unable to work due to her

psychiatric conditions and Perrino’s opinion that Chapin was

moderately limited in understanding and remembering short and

simple instructions, maintaining concentration and attention for

extended periods, and asking simple questions and requesting

assistance. The ALJ explained that these opinions were “not

entirely consistent with the evidence of record,” including

“[t]reatment notes from West Central Behavioral Health.” The ALJ

observed that these notes showed, among other things, that Chapin

“was babysitting for her neighbor for up to 14 hours a day

4 . . . . Her mental status exams were normal with adequate

memory, attention span, and concentration.”2

That is indeed what those treatment notes show. After

Chapin’s first and only visit with Dr. Reinick, in April 2009,

her mental status exam reported that, while Chapin’s “[m]ood was

depressed, and [her] affect [was] mood congruent, constricted,”

her “[t]hought process is concrete, linear and goal oriented.

Judgment and insight are fair.” When Chapin saw Dr. Hurst in

July 2009, her mental status exam reported that Chapin had “good

eye contact and relates well,” her “mood [was] somewhat depressed

and affect is mildly constricted to full at times, mood

congruent,” her “thought process [was] goal directed,” and her

“[i]nsight and judgment [were] both fair.”

The report of the mental status exam conducted during

Chapin’s second visit to Hurst, in March 2010, noted that

Chapin’s mood was “good and affect is full and bright,” as well

as that, while Chapin’s recent and remote memory were not tested,

they appeared to be within normal limits, as did her attention

2 Chapin complains that the ALJ “did not address” Hurst’s opinions. While the ALJ did not mention Hurst by name, she was one of Chapin’s “providers at West Central Behavioral Health” and, as just noted, the ALJ specifically noted that he gave those opinions only limited weight. In any event, Hurst’s observations and diagnoses of Chapin suggest no greater functional limitations than Reinick’s (as discussed in part infra). Chapin does not argue to the contrary.

5 span and concentration. Finally, when a third psychiatrist from

West Central Behavioral Health conducted a mental status exam of

Chapin in July 2010, he reported that her mood was “‘all right’

and [her] affect [was] full,” her thought process was “linear and

goal directed,” and her “[j]udgment and insight [were] fair.”

Chapin saw Perrino, the therapist, four times between late

August and early October 2010. During the first of these visits,

Chapin said that she had “been babysitting for over a year and

has never been paid . . . she works 14 hours days and is unable

to say ‘no’ because [the person for whom she babysat] is her only

friend.” This inability--and Chapin’s work as a babysitter--

persisted until at least the time of her final documented visit

with Perrino, when Chapin said “[s]he continues to feel

responsible for the welfare of her neighbor’s children and even

on her ‘day off’ she cooks for the children and does laundry.”

Accordingly, the ALJ did not err by finding that Reinick’s

opinion that Chapin’s psychiatric condition left her “unable to

pursue employment or hold employment at this time due to her

psychiatric conditions,” and Perrino’s opinion that Chapin had

“moderate limitations in understanding, memory, and

concentration, were “inconsistent with other evidence in [the]

case record” and therefore not entitled to controlling weight

under

(c)(2). This is to say nothing of the

6 fact that, regardless of their consistency with the rest of the

record, neither of these opinions would be entitled to

controlling weight for independent reasons. By its terms,

§ 404.1527 does not apply to a medical source’s opinion--like

Reinick’s--that the claimant is “disabled” or “unable to work,”

because that is the ultimate issue the ALJ must decide. Id.

§ 404.1527(d)(1). And, because Perrino is a therapist, she

cannot serve as the source of a “medical opinion” subject to the

provisions of § 404.1527, as Chapin acknowledges. Social

Security Ruling 06-03p, Titles II and XVI: Considering Opinions

and Other Evidence from Sources who are not “Acceptable Medical

Sources” in Disability Claims, 1992-2010 Soc. Sec. Rep. Serv.

Supp. Pamphlet 327, 328-29 (2006).

The ALJ also gave only “limited weight” to the opinions of

Alysson, a psychologist who conducted an examination of Chapin in

March 2010. This examination included an “interview and a

battery of in depth validated diagnostic psychological tests,”

the results of which Alysson took to reflect “not only

impairments, but pervasive psychological disorganization.”

Specifically, Alysson diagnosed Chapin “with pervasive cognitive

limitations,” including impaired memory, concentration, and

executive functioning. Indeed, Alysson found that Chapin was

markedly limited in her understanding, memory, concentration, and

7 persistence, as well as her ability to accept simple instructions

and criticisms and to complete a normal workday and workweek.

Chapin saw Alysson on a referral from Chapin’s attorney, rather

than from any of the medical professionals at West Central

Behavioral Health who were treating Chapin at that time. Chapin

did not receive any treatment from Alysson either before or after

this examination. So Alysson was not a “treating source” under

§ 404.1527(c)(2), and Chapin does not argue otherwise.

Instead, Chapin argues that the ALJ failed to properly apply

the factors set forth in § 404.1527(c)(2)-(6) in giving limited

weight to Alysson’s opinions, while giving great weight to the

opinions of Dr. Michael Schneider, a state-employed psychologist

who did not examine Chapin, but reviewed her medical records, in

December 2009. In contrast to Alysson, Schneider concluded that,

while Chapin suffered from affective, anxiety-related, and

personality disorders, she retained the ability to understand,

remember, and carry out short and simple instructions without

special supervision, and to maintain adequate attention and

complete a normal workweek, provided she was located at a

“somewhat socially isolated workstation” and did not have to

endure interactions with the general public or “overly critical”

feedback from supervisors.

8 As this court has recognized, an ALJ can rely “exclusively

on the assessments of non-testifying, non-examining physicians”

in adjudicating a claimant’s disability, and conflicts between

those assessments and other medical testimony “are for the ALJ to

resolve.” Morin v . Astrue,

(citing Berrios

Lopez v . Sec’y of HHS,

(1st Cir. 1991) and

Tremblay v . Sec’y of HHS,

1 , 12 (1st Cir. 1982)).

Furthermore, “[t]he ALJ decision to resolve that conflict against

the claimant should be affirmed if “‘that conclusion has

substantial support in the record.’”

(quoting Tremblay,

2 ) . While, as discussed supra, § 404.1527(c) lists

factors for the ALJ to consider in deciding how much weight to

give any medical opinion, it stops short of “requiring an ALJ’s

decision to apply expressly each of the six relevant factors in

deciding what weight to give a medical opinion,” so long as he

provides “good reasons in his decision for the weight he gave to

the [medical] opinions.” Oldham v . Astrue,

(10th Cir. 2007).

The ALJ did that here. In according “only some weight” to

Alysson’s opinions, the ALJ explained that they were “not

supported by the evidence of the record,” including Chapin’s

“reports of her own mood being okay and her activities of daily

living, along with objective reports from other providers.” In

9 contrast, the ALJ explained that Schneider’s opinion was “given

great weight because it is consistent with and supported by the

evidence of record” and Schneider “supported his opinion with

references to the medical record.”

This reasoning finds substantial support in the record. As

just discussed, in March 2010--the very same month that Alysson

examined Chapin--her treating psychiatrist, Hurst, noted that

Chapin’s mood was “good and affect is full and bright,” and that

her memory and concentration appeared normal. Between April 2009

and July 2010, in fact, three different psychiatrists reported

that Chapin’s thought process was “goal directed” (or “linear and

goal directed”) and her insight and judgment were “fair.”

Moreover, in August 2010, Chapin reported that she had been

working for over a year (albeit for free) as her neighbor’s

babysitter, sometimes for as much as 14 hours a day, and, by

October 2010, that she was even doing cooking and laundry for the

family.3 This evidence is inconsistent with Alysson’s opinions

3 Chapin argues that her “babysitting activity was a consequence of her mental illness,” in that her “fear of abandonment, her inability to form stable relationships and her inability to stand up for herself[] made her so afraid that her only friend would reject and abandon her if she quit babysitting[] that she was unable to say no.” This may explain why Chapin agreed to babysit without pay, but it does nothing to diminish the fact that she was able--despite her claimed limitations--to handle the demands of long days of caring for another person’s children, including cooking and laundry, for more than a year. From this extensive and intensive period of

10 that Chapin’s “pervasive psychological disorganization” imposed

marked limitations on her understanding, memory, concentration,

and persistence, and her ability to accept simple instructions

and criticisms and to complete a normal workday and workweek.

The record evidence provides adequate support, then, for the

ALJ’s decision to reject those opinions in favor of Schneider’s

view that Chapin retained the ability to understand, remember,

and carry out short and simple instructions without special

supervision, and to maintain adequate attention and complete a

normal workweek, albeit with certain accommodations. Chapin’s

arguments to the contrary are not persuasive.

First, she points out that, because Schneider’s assessment

accounted for neither Alysson’s evaluation, completed in March

2010, nor “the year’s worth of the [West Central Behavioral

Health] psychiatrists’ or other providers’ notes regarding

treatment [ ] Chapin received” there after December 2009, when

Schneider completed his evaluation. But Alysson’s opinion also

failed to account for the treatment that Chapin received at West

Central Behavioral Health, some of which post-dated Alysson’s

evaluation and the remainder of which she simply ignored (indeed,

babysitting, the ALJ was entitled to infer that Chapin did not suffer the disabling limitations identified by Alysson and others, even if other inferences are arguably permissible. See Morin,

, 25 n.21.

11 so far as the record indicates, Alysson reached her conclusions

based solely on the interview and testing she conducted, without

examining any of Chapin’s treatment records). Second, Chapin

complains that Schneider lacked any “relationship with [her] that

would give him the longitudinal view of her mental impairments

that her treating psychiatrists had.” Again, though, the same is

true of Alysson, who based her opinions on one day’s worth of

examination and testing and also never treated Chapin. Because

Alysson’s and Schneider’s opinions suffered from the same

deficiencies, the ALJ acted properly in according more weight to

Schneider’s because, as he explained, it was superior in one key

respect: its consistency with Chapin’s medical records. See SSR

06-03p, 1992-2010 Soc. Sec. Rep. Serv. Supp. Pamphlet at 332.

The remainder of Chapin’s arguments are likewise without

merit. She argues that the ALJ ignored the fact that the New

Hampshire Department of Health and Human Services deemed Chapin

eligible for Medicaid benefits, specifically, Aid to Partially

and Totally Disabled Individuals, in March 2010. As Chapin

acknowledges, however, “[a] decision by . . . any other

governmental agency about whether [the claimant] is disabled

. . . is based on its rules” and is therefore not binding on the

SSA.

. Thus, as this court has observed,

“ignoring [such] a conclusion is not error per se.” Dube v .

12 Astrue,

1 , 20-21 n.16 (citing cases). While, as Chapin

emphasizes, it might be “more troubling if relevant evidence of

disability forming the basis of the state finding is in the

record and ignored,”

that observation is inapt in this case.

Here, the evidence forming the basis of the state’s finding that

Chapin was disabled appears to be the same as the evidence she

submitted to the ALJ, viz., Alysson’s report, together with

records from her treatment at West Side Behavioral Health.4

Chapin also argues that the ALJ improperly “substitute[d]

his judgment for that of treating medical professionals” in

finding that, based on the range of scores Chapin received on the

Global Assessment Functioning (“GAF”) between 2008 and 2010, she

did not have “a 12-month period of such severity that would

prevent her” from performing her past relevant work. The ALJ

observed that Chapin’s GAF scores was not “consistently as low as

41,” which would indicate either “serious symptoms” or a “serious

impairment in social, occupational, or school functioning,”

Diagnostic and Statistical Manual of Mental Disorders at 34 (4th

4 As Chapin points out, the record before the state agency contains “a partial transcription” of her testimony recounting the “horrific circumstances” of domestic abuse that contributed to her PTSD. While the court agrees with this characterization, there has never been any dispute that Chapin in fact has PTSD and, indeed, the ALJ specifically found that she does.

13 ed. text. rev. 2000). Instead, her scores “ranged from a 30-35

in March 2010 to as high as a 65 in December 2008.”

Chapin argues that “these scores must be taken in

chronological sequence as they were assigned to reflect the

clinical trend of [her] mental ability to function.”5 But she

points to nothing in the record, whether in the form of a medical

opinion or otherwise, supporting the notion that her GAF scores

during this period reflected her ever-diminishing capabilities.

So the ALJ did not “substitute his judgment for that of treating

medical professionals” in looking at the scores a different way.

He simply drew a different inference from the one Chapin urges.

In any event, as one court has observed, there is no “statutory,

regulatory, or other authority requiring the ALJ to put stock in

a GAF score in the first place.” Kornecky v . Comm’r of SSA,

(6th Cir. 2006).

Finally, Chapin argues that the ALJ erred in ruling that

Chapin’s RFC allowed her to perform her past relevant work as a

mail house worker, see

(b), “because he was

5 It is worth noting that, after Chapin received her lowest reported GAF score (the 30-35 assigned by Allyson in early March 2010), she received a succession of higher scores: Hurst assigned a 45 later that same month, and Perrino (and another therapist at West Central Behavioral Health) assigned GAF scores between 52 and 55 in a series of sessions with Chapin between July 2010 and October 2010. S o , even if there were a downward trend in Chapin’s GAF scores between December 2008 and early March 2010, it was immediately reversed at that point.

14 basing his determination of current RFC on a flawed determination

for all the reasons discussed previously, and failed to show her

non-exertional impairments had negligible affect.” This is

simply a restatement of Chapin’s argument that the ALJ improperly

weighed the evidence in determining her RFC, which the court

rejects for the reasons already discussed at length. Insofar as

Chapin argues that the ALJ erred by finding that she “‘is able to

perform [her past relevant work] as it as actually performed,’

not as she had performed it,” that is incorrect. See Gray v .

Heckler,

(1st Cir. 1985).

Based on the foregoing, Chapin’s motion to affirm the

Commissioner’s decision6 is DENIED, and the Commissioner’s motion

to affirm that decision7 is GRANTED. See

(g).

The clerk shall enter judgment accordingly and close the case.

SO ORDERED.

0C /^tft0*^* Joseph N. La'plante ^lited States District Judge

Dated: September 2 8 , 2012

cc: Nancy C . Russell, Esq. Gretchen Leah Witt, AUSA

6 Document n o . 9. 7 Document n o . 1 3 .

15