Swanburg v. SSA CV-11-143-PB 4/10/12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Marcia Marie Swanburg

v. Case No. ll-cv-143-PB Opinion No.

Michael J. Astrue. Commissioner Social Security Administration

MEMORANDUM AND ORDER

Marcia Marie Swanburg seeks judicial review of a decision

by the Commissioner of the Social Security Administration

("SSA") denying her applications for disability insurance and

supplemental security income benefits. Swanburg contends that

the Administrative Law Judge ("ALJ") who considered her

application did not adequately assess the medical opinion of

Swanburg's treating provider and that the ALJ's assessment of

her mental residual functional capacity is not supported by

substantial evidence. For the reasons provided below, I grant

Swanburg's motion to reverse the Commissioner's decision and

remand the case for further administrative proceedings. I. BACKGROUND1

Swanburg applied for disability insurance and supplemental

security income benefits on December 2, 2008, when she was

thirty-three years old. She alleged a disability onset date of

September 1, 2008, due to a variety of physical problems, as

well as problems with depression, post-traumatic stress disorder

(PTSD), mixed personality disorder, and panic attacks. After

obtaining her GED, Swanburg completed two years at a community

college. Her past work consisted of positions in real estate as

a customer service agent, an escrow officer, and a relationship

manager at a title company.

A. Medical Evidence

Swanburg first reported problems with depression in October

2008. At the time, she was having problems with her teenage

sons and her husband had left her. She reported increased

suicidal ideation and unhappiness with her living situation.

Her doctor diagnosed Swanburg with bipolar disorder, and opined

that she also may have borderline personality disorder and

complex PTSD. He recommended hospitalization.

Swanburg was hospitalized on October 19, 2008, for suicidal

ideation. She had cut herself with a steak knife the day prior

1 The background information is taken from the parties' Joint Statement of Material Facts. See L.R. 9.1(b). Citations to the Administrative Transcript are indicated by "Tr." 2 to her admission. Her global assessment of functioning (GAF)

score upon admission was 30-35.2 She was discharged on October

26, 2008, with a GAF of 50-55.3

Following her discharge, Swanburg's doctor noted that she

was doing well on a medication regimen. She experienced some

anxiety, but medications helped calm her down. At a follow-up

appointment in January 2009, however, Swanburg reported that she

had stopped taking two of her medications. Tr. 309. She did

not like the way one medication made her feel and did not think

the other one was working.

She also had not established

care with a counselor. She denied feeling suicidal, was alert

and oriented, made good eye contact, and answered questions

appropriately.

In January 2009, Dr. Thomas Stearns examined Swanburg. Tr.

302. She complained of emotional lability, sleep disturbance,

obsessive rumination, anxiety, and fear. She was able to

2 A GAF of 31-40 indicates "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work . . .)." Diagnostic and Statistical Manual of Mental Disorders at 34 (4th ed. 2 000) ("DSM-IV").

3 A GAF of 51-60 indicates " [ni] oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers)." DSM-IV at 34. 3 accomplish some daily tasks and to seek support from her

grandmother. Dr. Stearns encouraged Swanburg to push herself to

engage in daily activities. At a follow-up appointment later

that month, Swanburg reported deterioration in her mood and a

decline in her ability to engage in daily activities beyond

taking care of her children. Tr. 441.

Dr. Richard Root examined Swanburg on April 22, 2009, on

behalf of the SSA. He opined that Swanburg was capable of

understanding and remembering simple instructions within a

supportive work setting; maintaining communication and

relationships with very supportive peers, supervisors, and

family members; sustaining attention and concentration adequate

to do simple tasks; and tolerating stress common to very

supportive work settings. Dr. Root opined that Swanburg would

have difficulty coping with demanding and emotionally involved

relationships; with handling difficult tasks, particularly ones

involving levels of emotionality; and with competitive,

emotionally demanding settings. Dr. Root recommended that a

guardian be appointed to help manage any funds awarded to

Swanburg.

On May 8, 2009, Dr. Michael Schneider completed a mental

residual functional capacity ("RFC") assessment on behalf of the

SSA. Based on his review of Swanburg's records, including Dr. 4 Root's report. Dr. Schneider concluded that Swanburg retained

the ability to understand, remember, and carry out short, simple

instructions without special supervision. He further concluded

that she could maintain adequate attention for such instructions

and that she could complete a normal work week in an environment

where supervision was not overly critical. Dr. Schneider also

found that Swanburg could interact appropriately with peers and

supervisors and that she could accommodate changes in a work

setting.

In August 2009, Swanburg had an appointment with Margaret

Mayer, a licensed clinical social worker. Ms. Mayer opined that

Swanburg had a moderate limitation in carrying out activities of

daily living, a mild to moderate limitation in her ability to

cope with change, and a marked limitation in the area of

interpersonal functioning. Ms. Mayer also noted problems with

concentration and task completion, as reported by Swanburg. Ms.

Mayer assigned a GAF of 48.4

The following month, Swanburg was hospitalized because she

had cut herself following an argument with her husband.

Subsequently, she went to the emergency room twice with

4 A GAF of 41-50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." DSM-IV at 34 . 5 complaints of depression secondary to family issues,

unemployment, and monetary problems. During an emergency room

examination in October 2009, she was fully alert and oriented.

Her mood, affect, thought process, insight, and judgment at that

time were normal. She was discharged in good condition. During

her November emergency room visit, Swanburg cut herself while at

the hospital and had to be placed in restraints. The

lacerations were superficial and appeared to have been inflicted

to gain attention.

From September 2009 until May 2010, Swanburg received

mental health treatment from Dr. Marianne Marsh at Monadnock

Family Services. In October 2009, Dr. Marsh completed a bipolar

disorder mental health source document. Dr. Marsh stated that

Swanburg suffered from severe psychiatric symptoms on a constant

basis and opined that Swanburg was "quite disabled" and unable

to work. Tr. 490. Specifically, she indicated that Swanburg

was severely limited in her ability to deal with work stress,

constantly limited in her ability to handle work demands, and

constantly limited in her ability to focus, organize, and timely

complete work tasks.

Dr. Marsh noted that Swanburg was

experiencing manic, hypomanic, depressive, and mixed episodes.

She opined that Swanburg could expect recurrence of these

symptoms even with treatment.

Her prognosis was that some 6 improvement in Swanburg's condition was possible, but that

recovery was extremely unlikely.

During her October appointment with Dr. Marsh, Swanburg

reported cutting herself, which she stated was caused by

flashbacks of her mother abusing her. Tr. 529. She was

suffering from insomnia due to nightmares and felt "like a

loaded gun."

Cutting herself was the only way she could

calm her PTSD.

Swanburg also told Dr. Marsh that she was

waking up depressed and hopeless and that she wished she was

dead.

She reported not wanting to leave the house out of

fear that others would stare at her.

Dr. Marsh noted that

Swanburg was exhibiting self-injurious behavior and was having

suicidal ideation and urges to inflict harm on herself.

She was suffering from depression and experiencing panic,

avoidance, intrusive memories, flashbacks, nightmares, insomnia,

fatigue, hyperstartle/hypervigilance, and hallucinations.

Dr. Marsh indicated that Swanburg's symptoms were severe, that

her condition had worsened, and that chronic suicidal ideation

persisted. Tr. 530. Medications only partially alleviated her

symptoms.

At the next month's appointment. Dr. Marsh noted that

Swanburg was improving gradually, but her symptoms remained

severe and the chronic suicidal ideation continued. Tr. 527. 7 Swanburg was less depressed, but she continued to engage in

self-injurious behavior. Tr. 526. Many of the symptoms

Swanburg reported at the previous visit persisted, including

intrusive memories, flashbacks, insomnia, and poor

concentration.

Her anxiety also persisted and made her

feel shaky.

In January 2010, Dr. Marsh noted that Swanburg's moderately

severe symptoms of mental illness had worsened. Tr. 524.

Swanburg had decreased the dosage of a prescription medication

she was taking, resulting in increased symptoms, mood

irritability, and anger.

Her chronic suicidal ideation

persisted, as did intrusive memories, flashbacks, nightmares,

hyperstartle/hypervigilance, insomnia, and poor concentration.

Tr . 523 .

In February, Dr. Marsh noted that Swanburg had a recent

stay at a mental health unit after a breakdown. Tr. 502. Prior

to hospitalization, she was taking a lot of extra pills to "not

think about anything" and to sleep.

She denied suicidal

intent. Tr. 503. Dr. Marsh indicated that she continued to

suffer from moderately severe symptoms of mental illness.

In March, Swanburg reported to Dr. Marsh that she was

depressed often. Tr. 499. She had intermittent chronic

ideation, some of which was "bad."

Panic continued,but it was "not as bad as it used to be."

She reported no self-

injurious behavior.

Her symptoms remained moderately

severe, though an improvement was noted. Tr. 500.

In April, Dr. Marsh noted that Swanburg was making good

progress in treatment, but her symptoms remained moderately

severe. Tr. 497. She continued to experience panic, avoidance,

intrusive memories, flashbacks, hyperstartle/hypervigilance, and

nightmares. Tr. 496. She reported no suicidal ideation or

self-injurious behavior, but was self-conscious about scars on

her arms from cutting.

On May 19, 2010, Dr. Marsh completed a mental impairment

questionnaire. Dr. Marsh indicated that she had seen Swanburg

on a monthly basis since September 2009. She assigned Swanburg

a GAF of 33, and opined that Swanburg was making progress in

treatment but was still "quite impaired." Tr. 516. According

to Dr. Marsh, although Swanburg's prognosis was fair, she had a

severe and persistent mental illness that would be present

indefinitely. She opined that Swanburg could not meet

competitive demands in several areas required to perform

unskilled work. Specifically, she was unable to maintain

attention for two hours at a time; work in coordination with or

in proximity to others without being unduly distracted; perform

at a consistent pace without an unreasonable number and length 9 of rest periods; respond appropriately to criticism from

supervisors; and complete a normal workday and workweek without

interruptions from psychologically-based symptoms. Tr. 518.

Dr. Marsh also indicated that Swanburg was seriously limited in

her ability to understand, remember, and carry out very short

and simple instructions; maintain regular attendance; deal with

normal work stress; and respond appropriately to changes in a

routine work setting.

Dr. Marsh further opined that

Swanburg had marked limitations in carrying out activities of

daily living and in social functioning, and a moderate

limitation in her ability to maintain concentration,

persistence, or pace. According to Dr. Marsh, Swanburg would

miss more than four days of work per month due to her condition.

She noted, however, that Swanburg would be capable of managing

her own benefits.

In June 2010, Swanburg began treatment with Dr. Frederick

Agisim, who took over for Dr. Marsh when she left Monadnock

Family Services. At their first appointment. Dr. Agisim noted

that Swanburg's mental health was stable with no suicidal

ideation. He indicated, however, that the symptoms of her

mental illness continued to be moderately severe. Tr. 669.

Those symptoms included panic, irritability, avoidance,

intrusive memories, flashbacks, hyperstartle/hypervigilance, and 10 nightmares. Tr. 668. She continued to benefit from treatment,

but was afraid to try to lessen the intensity of treatment or to

try to return to work. Six days later, Swanburg was

hospitalized for cutting herself with a razor. She was admitted

for treatment of her depression.

The following month. Dr. Agisim noted that Swanburg was

depressed and anxious. Tr. 666. She was avoiding going out and

using the telephone.

She reported feeling overwhelmed by

problems with money, her husband's refusal to sign divorce

papers, and criticism from her grandmother. Certain medications

were helping her mood. A typical day consisted of caring for

her personal needs, spending time with her children and

grandmother, or going to appointments. Swanburg attended to

chores with her sons, prepared dinner, and participated in

family activities with her children. Despite these activities.

Dr. Agisim opined that Swanburg had marked limitations in her

activities of daily living and her interpersonal functioning.

Specifically, he noted that Swanburg had inconsistent personal

hygiene, sleep disturbance, inconsistent budget management,

inadequate leisure activity, inconsistent use of community

resources, inconsistent medication management, as well as unsafe

medication and nutrition management. Tr. 664-65. Dr. Agisim

also noted that Swanburg was experiencing inconsistent rational 11 response to others, persistent isolation caused by symptoms,

inability to respond to stress systematically, inconsistent

follow-up with scheduled activities, and inconsistent ability to

establish trust.

B. Administrative Proceedings

After her claim for benefits was denied at the initial

level, Swanburg requested a hearing before an ALJ. Swanburg

attended the hearing on August 9, 2010, and testified. She was

represented by counsel. A vocational expert also testified.

The ALJ issued a decision denying Swanburg's claim on

September 24, 2010. At step two of the sequential analysis, the

ALJ found that Swanburg had the severe impairments of status

post left knee surgery, bipolar affective disorder, and anxiety

disorder. At step three, however, the ALJ found that Swanburg

did not have an impairment or a combination of impairments that

met or medically equaled a listing. The ALJ went on to find

that she retained the RFC to perform light work involving

occasional postural activity. Specifically, she retained the

ability to understand, remember, and carry out short and simple

instructions without special supervision; maintain adequate

attention; complete a normal workday and workweek; interact

appropriately with peers and supervisors; and accommodate

changes in a work setting. The ALJ next found that Swanburg 12 could not perform any of her past relevant work, but that she

could perform other work existing in significant numbers in the

national economy. Accordingly, the ALJ concluded that Swanburg

was not disabled for the purpose of her social security

application. The ALJ's decision became the Commissioner's final

decision on January 20, 2011, after the Decision Review Board

failed to complete a timely review.

Ill. ANALYSIS

Swanburg moves to reverse and remand the decision denying

her applications for disability insurance and supplemental

security income benefits on the grounds that the ALJ did not

adequately assess the medical opinion of Swanburg's treating

provider, and that the ALJ's assessment of Swanburg's mental RFC

is not supported by substantial evidence. The Commissioner

defends the ALJ's decision.

A. Weight Given to Treating Provider's Opinion

Swanburg contends that the ALJ erred in giving only limited

weight to the medical opinion of her treating provider. Dr.

Marsh, or, alternatively, that he failed to adequately explain

why Dr. Marsh's opinion was not entitled to controlling weight.

A treatment provider's opinions must be given controlling

weight if the "treating source's opinion on the issue(s) of the 13 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 . . .

(d)(2). The ALJ "may reject a treating physician's

opinion as controlling if it is inconsistent with other

substantial evidence in the record, even if that evidence

consists of reports from non-treating doctors." Coggon v.

Barnhart,

(D. Mass. 2005) (internal

quotation marks and citations omitted); see

(d) (2).

When a treating physician's opinion is not entitled to

controlling weight, the ALJ determines the amount of weight

based on factors that include the nature and extent of the

physician's relationship with the applicant, whether the

physician provided evidence in support of the opinion, whether

the opinion is consistent with the record as a whole, and

whether the physician is a specialist in the field.

(d)(1-6). Importantly, the ALJ must give "good reasons"

for the weight given to treating physician's opinions. Id.; see

SSR 96-2p,

, at *5 (July 2, 1996) ("[The ALJ's

decision] must contain specific reasons for the weight given to

the treating source's medical opinion, supported by the evidence 14 in the case record, and must be sufficiently specific to make

clear to any subsequent reviewers the weight the adjudicator

gave to the treating source's medical opinion and the reasons

for that weight.")

Here, the ALJ failed to give a good reason for giving only

"limited weight" to the opinion of Dr. Marsh, Swanburg's

treating provider. Dr. Marsh opined that Swanburg's persistent

and severe mental illness prevented her from meeting competitive

demands in several areas required to perform unskilled work.

The ALJ justified giving her opinion limited weight by stating

that the limitations found by Dr. Marsh were inconsistent with

her own treatment records. Tr. 15. To demonstrate the

inconsistency, he cited to treatment records in Exhibit 18F.

As the Commissioner concedes, however, those records are

not Dr. Marsh's treatment notes but Dr. Agisim's, who began

treating Swanburg after Dr. Marsh left the practice.

Dr. Marsh's treatment notes in fact support her opinion

that Swanburg's mental condition improved following her multiple

hospitalizations for self-cutting, but that she continued to

suffer from symptoms of severe mental illness. Even when Dr.

Marsh noted improvement in Swanburg's condition, she also

indicated that Swanburg's chronic suicidal ideations persisted,

and that medications only partially alleviated her symptoms. 15 Treatment notes from each session also indicate that Swanburg's

symptoms were moderately severe. Therefore, Dr. Marsh's opinion

that Swanburg was making progress but continued to suffer from a

severe and persistent mental illness is entirely consistent with

her treatment notes.

Dr. Agisim's treatment records are also consistent with Dr.

Marsh's opinion. In June 2010, Dr. Agisim noted that Swanburg's

symptoms were moderately severe, but that her mental illness was

stable. As the ALJ noted, however, Swanburg was hospitalized

six days later after cutting herself with a razor. She was

admitted for treatment of her depression. The following month.

Dr. Agisim indicated that Swanburg was depressed, anxious, and

in withdrawal. He also noted that Swanburg had marked

limitations in activities of daily living and interpersonal

functioning.

In sum. Dr. Marsh and Dr. Agisim's treatment records

support rather than contradict Dr. Marsh's opinion. The ALJ

provided no other reason for giving only limited weight to Dr.

Marsh's opinion. The ALJ, therefore, failed to give a good

reason for discounting her opinion, as he was required to do.

See

(d)(1-6); SSR 96-2p,

, at

*5.

16 B. Mental RFC

To support his conclusion that Swanburg retained the mental

RFC to do light, unskilled work, the ALJ relied on the opinions

of state agency consultants. Dr. Root and Dr. Schneider. Social

Security Ruling 96-6p provides that state agency consultants'

opinions

can be given weight only insofar as they are supported by evidence in the case record, considering such factors as the supportability of the opinion in the evidence including any evidence received at the administrative law judge and Appeals Council levels that was not before the State agency, the consistency of the opinion with the record as a whole, including other medical opinions, and any explanation for the opinion provided by the . . . consultant . . . .

SSR 96-6p,

, at *2. "[T]he amount of weight that

can properly be given the conclusions of non-testifying, non­

examining physicians will vary with the circumstances, including

the nature of the illness and the information provided the

expert." Rose v. Shalala,

(1st Cir. 1994)

(internal quotation marks and citations omitted). A state

agency consultant's opinion that is based on an incomplete

record, when later evidence supports the claimant's limitations,

cannot provide substantial evidence to support the ALJ's

decision to deny benefits. See, e.g., Alcantara v. Astrue,

(1st Cir. 2007); Padilla v. Barnhart,

(1st Cir. 2006); Russell v. Astrue,

Supp. 2d 1355, 1378-79 (N.D. G a . 2010); L.B.M. ex rel. Motley v.

Astrue, No. 1:08-CV-1354-WTL-DML,

, at *13 (S.D.

Ind. Mar. 23, 2010) .

Here, the ALJ failed to adequately explain why the agency

consultants' opinions were entitled to "most weight." Instead,

he simply stated that their opinions "are well supported by

medically acceptable clinical and diagnostic techniques and are

not inconsistent with the other substantial evidence in the

record." Tr. 15. As explained in a similar case, " [m]ore than

a conclusory declaration is necessary, particularly given the

fact that the opinions of the nonexamining physician and

claimant's treating physician are so dramatically different."

Mendoza v. Astrue,

, at *5 (D.N.H. May 10, 2011).

It also bears noting that the state consultants rendered

their opinions before Dr. Marsh even began treating Swanburg.

Thus, as in Mendoza, the state consultants did not have the

benefit of the treating provider's notes and opinions or the

opportunity to explain their reasons for discounting them. See

Hence, without further explanation by the ALJ, "it is

difficult to accept [the state consultants' opinions] as being

'consistent with and supported by the evidence of record,' or to

understand why [they are] entitled to 'significant weight[.]'"

18 In light of the ALJ's inadequate explanation for

discounting Dr. Marsh's opinion and his unsupported decision to

give greater weight to the agency consultants' opinions, the

case must be remanded for further proceedings.

IV. CONCLUSION

For the foregoing reasons, I grant Swanburg's motion to

reverse (Doc. No. 8), deny the Commissioner's motion to affirm

(Doc. No. 10), and pursuant to

(g), remand this

case to the Social Security Administration. The clerk is

directed to enter judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 10, 2 012

cc: D. Lance Tillinghast, Esq. T. David Plourde, AUSA

19