Gaudette v. SSA CV-13-8-JL 2/3/14

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Maile Gaudette, on behalf of P.P.

v. Civil No. 13-CV-08-UL Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

SUMMARY ORDER

Marie Gaudette, acting on behalf of her minor daughter

(known pseudonymousiy as "DP") has appealed the Social Security

Administration's denial of DP's application for Supplemental

Security Income. An administrative law judge at the SSA ("ALU")

ruled that DP was not disabled because her severe impairments

(anxiety disorder, attention deficit-hyperactivity disorder

("ADHD"), and lactose intolerance with chronic constipation),

either alone or in combination, did not meet, or medically equal,

a listed impairment, nor did they functionally equal the severity

of a listed impairment. See

(d). The

Appeals Council later denied Gaudette's request for review of the

ALU's decision, see i d . § 416.1479, so the ALU's decision became

the SSA's final decision on DP's application, see i d . § 416.1481.

Gaudette appealed the decision to this court, which has

jurisdiction under

(g) (Social Security). Gaudette has filed a motion to reverse the decision, see

L.R. 9.1(b)(1), challenging the ALJ's decision as unsupported by

substantial evidence. Specifically, Gaudette argues that the ALJ

erred by finding (1) that DPfs ADHD was not medically egual to a

listed impairment without obtaining an updated medical opinion to

that effect, and (2) that DP's impairments did not functionally

equal a listed impairment. The Commissioner of the SSA has

cross-moved for an order affirming the decision, see L.R. 9.1(d),

defending the ALJ's findings. As explained below, the court

denies Gaudette's motion, and grants the Commissioner's.

The listing for ADHD requires a marked degree of

inattention, impulsiveness, and hyperactivity that, in the case

of a child (like DP) between 3 and 18 years of age, results in

marked impairment in age-appropriate functioning in at least two

of the following areas: (a) cognitive/communicative functioning,

(b) social functioning, (c) personal functioning, and

(d) maintaining concentration, persistence, or pace.

, subp. P, a p p . 1, p t . B, 3 112.11 (cross-referencing

i d . 3 112.02(B)(2)). The ALJ found that DP's ADHD did not meet

or medically equal this listing because "she does not have

markedly impaired functioning" in any of those areas.

Gaudette's motion does not identify the areas in which she

claims that DP suffers from the requisite degree of impairment.

2 Instead, the motion criticizes the ALJ for relying on the

opinions of what (in their joint statement of facts) the parties

identify as a "State Agency" psychologist and a medical doctor

that, while DP suffered from a medically determinable case of

ADHD (among other medically determinable impairments), it did not

reach the level of a severe impairment. So far as the court can

tell, Gaudette takes this line of attack based on her view that

the ALJ necessarily relied on these opinions in finding that DP's

ADHD did not medically equal the listing--a view based in turn on

her position that the ALJ could not have made such a finding

without a medical opinion to that effect.

This is so, Gaudette intimates, by the force of a policy

interpretation by the SSA, Titles II and XVI: Consideration of

Administrative Findings of Fact by State Agency Medical and

Pyschological Consultants and Other Program Physicians at the

Administrative Law Judge and Appeals Council Levels of

Administrative Review; Medical Equivalence, SSR 96“ 6p,

(SSA 1996). Gaudette reads this ruling to require that

the ALJ "receive expert opinion evidence from a physician . . .

on the issue of equivalence." While some courts have endorsed

this interpretation of SSR 96-6p, see, e.g., 31ra11oa v . Asti1ae,

F. Supp. 2d ___ ,

, at *11-*13 (D.N.H. May 11,

2012), rept. & rec. adopted. No. 11-256 (D.N.H. May 18, 2012),

3 this court need not decide whether to do so here because--as

Gaudette's argument assumes--a "state agency physician's opinion

that [the] claimant was not disabled fulfills the medical opinion

reguirement," Phelps v. Astrue,

, 12 n.2, insofar as

such a "requirement" exists. Here, again, a state agency

physician (joined by a state agency psychologist) found that DP

was not disabled, i.e., that her ADHD did not reach the level of

a severe impairment. So the record contained the medical opinion

that Gaudette claims was necessary for the ALJ to find that DP's

ADHD was not equivalent to a listed impairment.

Gaudette suggests that this opinion was stale because it was

rendered in early 2010, prior to a "vast amount of medical

evidence" that was generated between then and the hearing before

the ALJ, in September 2011. But Gaudette does not identify any

evidence, of any vintage, that undermines the state agency

physician's conclusion.1 That includes any contrary medical

instead, Gaudette makes a passing reference to 36 different exhibits that span nearly half of the 663-page record. That does not remotely approach any sort of cognizable argument that this court could hope to evaluate (as opposed to come up with on its own). Indeed, thus court has cautioned that simply referring to evidence before the ALJ is not enough to raise an argument that the ALJ erred in his or her consideration of that evidence. Montero v. Colvin, No. 12-412,

, at *1 n.l (D.N.H. Aug. 8, 2013). The same is true of Gaudette's passing reference to a vision deficit. In a finding that Gaudette does not question, the ALJ noted that DP "was evaluated for visual complaints" in December 2008, but "has not had any ongoing treatment for this concern." In light of that unchallenged

4 opinion that she might have adduced at the hearing before the

ALJ--where Gaudette bore the burden of proving that DP's

"condition met or equaled the level of severity required for

presumptive disability status." Hernandez-Torres v. Sec'y of

HHS, 968 F .2d 1210 (table),

(1st Cir. July

17, 1992). Under these circumstances, the ALJ properly found

that DP's ADHD did not medically equal a listed impairment. See

Phelps,

, 12-13.

The ALJ also found that DP's impairments, either alone or in

combination, did not functionally equal any listed impairment.

For an impairment or combination of impairments to "functionally

equal the listings ... it must result in marked limitations in

two domains of functioning or an extreme limitation in one

domain."

.926a(a) (quotation marks omitted).

These "domains" are: (i) acquiring and using information,

(ii) attending and completing tasks, (iii) interacting and

relating with others, (iv) moving about and manipulating objects,

(v) caring for oneself, and (vi) health and physical well-being.

I d . § 416.926a(b)(1). The ALJ found that DP had less than marked

limitations in each of these domains.

chronology, the ALJ properly relied on the state agency physician's 2010 opinion that DP was not disabled by any impairment or combination thereof (which would include the vision problems she had reported in 2008).

5 In challenging these findings, Gaudette merely states that

"[d]espite the overwhelming evidence that [DP's] impairment(s) is

. . . functionally equal to a listed impairment, the ALJ failed

to properly evaluate this issue." But this section of Gaudette's

motion does not refer to any such evidence--or, indeed, any

evidence at all--or elaborate on her charge that the ALJ "failed

to properly evaluate [the] issue"of functional equivalence. "It

is not enough merely to mention a possible argument in the most

skeletal way, leaving the court to do counsel's work, create the

ossature for the argument, and put flesh on its bones." United

States v. Zanriinof

(1st Cir. 1990) .

In other sections of her motion, Gaudette argues that the

ALJ erred by giving little weight to the opinions of a nurse

practitioner who treated DP, Bonnie Proulx. Proulx opined, in

September 2011, that DP suffered from marked limitations in

attending to and completing tasks and in caring for herself, as

well as an extreme limitation in health and well-being. Gaudette

suggests that, because Proulx had seen DP "on numerous occasions"

over a four-year period, her "medical opinion is the one most

likely to provide a detailed, longitudinal picture of [DP's]

medical impairment(s) . . . pursuant to [20 C.F.R.]

§ 416.927(c)(2)." As Gaudette seems to acknowledge, though,

Proulx— as a nurse practitioner--is not an "acceptable medical

6 source,"

(a), so her opinions are not "medical

opinions" under § 416.927. See Titles II and XVI: Considering

Opinions and Other Evidence From Sources Who Are Mot "Acceptable

Medical Sources" in Disability Claims, SSR 06-03p,

, at *2 (SSA 2006) .

It is true that, as Gaudette also points out, opinions from

so-called "other medical sources" like nurse practitioners

"should be evaluated on key issues such as impairment severity

and functional effects, along with the other relevant evidence in

the file," and the ALJ "generally should explain the weight given

to opinions from these 'other sources.'" Id . at *3; see also,

e.g., Corson v. Soc. Sec'y Admin., Comm'r,

, 24-25.

But consistent with this directive--and contrary to Gaudette's

assertion that "[t]he ALJ did not explain why she disregarded the

opinion of [] Proulx"--the ALJ gave specific reasons for giving

little weight to Proulx's opinion as to DP's limitations.

For one, the ALJ found that Proulx's view was "wholly

inconsistent with" the opinion of a physician who had also

treated DP, Dr. Peter Cook, that DP was "a healthy young woman

who could perform activities as tolerated and whose lactose

intolerance was well under control." Gaudette argues that.

7 because Cook saw DP "three times for lower back symptoms only,"2

the ALJ should have given his opinions less weight than those of

Proulx, who treated DP "for constipation and gastrointestinal

ailments" over a period of four years and therefore, in

Gaudette's view, "was more familiar with the overall physical

condition" of DP. But, while "[h]ow long the source has known

and how frequently the source has seen" the claimant is a factor

in the weight an ALJ should give opinions from "other medical

sources," it is not the only factor in that analysis. SSR

06-03p,

, at *4.

The ALJ may also consider "[t]he degree to which the source

presents relevant evidence to support an opinion" and "[h]ow well

the source explains the opinion." SSR 06-03p,

,

at *4 (citing

(d)). As the ALJ noted, Proulx

did not refer to any evidence buttressing her opinions that DP

suffered from marked limitations in attending to and completing

tasks and in caring for herself, and an extreme limitation in

2This criticism is not entirely accurate: while DP did indeed see Cook for back pain, she presented at one of those visits complaining of "trouble with abdominal pain." It was in response to this complaint that Cook expressed one of the opinions on which the ALJ relied, i.e., "there is a diagnosis . . . of lactose intolerance, but that seems to be well investigated and well under control, and is being looked after." It is also worth noting that, less than one week later, Proulx saw DP, who said "her abdominal pain is definitely improving" and reported regular bowel movements.

8 health and well-being; she merely checked boxes indicating those

limitations on a form. Per § 416.927(d), an ALJ can properly

decide to discount opinions expressed in this unexplained

manner.3 See, e.g., McGrath v. Astrue,

, 13 n.13

(finding that an ALJ properly gave little weight to opinions

expressed in "a two page checklist with scant analysis"); Morin

v. Astrue,

, 14-15 (finding that an ALJ properly gave

little weight to the opinions of a source who "merely checked off

boxes indicating [the claimant's] functional abilities" without

providing any narrative or medical or clinical findings).

Furthermore, "[t]he fact that a medical opinion is from an

acceptable medical source"--like Cook, a physician--"is [also] a

factor that may justify giving that opinion greater weight than

an opinion from a medical source who is not an acceptable medical

source because . . . acceptable medical sources are the most

qualified health care professionals." SSR 06-03p,

, at *5. Contrary to Gaudette's suggestion, then, it was

within the ALJ's discretion to rely on the fact that Proulx "is

not an acceptable medical source" in deciding to give her opinion

3This approach is particularly apt where the only diagnosis indicated on the form is "constipation lactose deficiency"--a malady that would seem to exert little, if any, effect on a patient's ability to attend and complete tasks and to care for herself, as those concepts are defined in the regulations. See

.92 6a (h), 416. 926a(k).

9 less weight than Cook's. Indeed, "[t]here is no error . . .

where the ALJ clearly considered a source's opinion and, after

evaluating the record including other acceptable medical sources

supporting the opposite conclusion, [the ALJ] decided to discount

the source's opinion." Corson,

, 25. So there was

no error in the ALJ's handling of Proulx's opinion here.

The final section of Gaudette's motion more or less lists

the opinions of a number of medical professionals and other

sources who treated DP, characterizing those opinions as

"relevant evidence with regard to the domains in question" which

the ALJ "ignored." Again, though, Gaudette's motion does not

attempt to explain how any of this evidence shows that she is,

contrary to the ALJ's findings, markedly or extremely limited in

any of the relevant domains of functioning. Instead, the motion

simply recites lengthy portions of DP's medical history

(including several verbatim passages from her medical records),

interspersed in just a few places with snippets of argument.

Those snippets are:

*"[t]he ALJ gave more weight to the opinions of the teachers at [DP's] school than to the opinions of the doctors who examined and treated [her] from 2006 to 2011 ";

• "[t]he above"--a phrase appearing after a lengthy paragraph that simply lists a variety of medical diagnoses and recommendations from several different sources--"is evidence that [DP's] ADHD, skin problems.

10 allergies and gastrointestinal ailments are ongoing and have not ceased"; and

• "[t]he ALJ did not discuss the effects of the medications on [DP]. In sum, the ALJ did not afford proper weight to the findings of the doctors mentioned."

The court is not persuaded by these points, insofar as it

can comprehend them. As noted at the outset, the ALJ found that

DP suffers from the same severe impairments with which her

doctors have diagnosed her: anxiety disorder, ADHD, and lactose

intolerance with chronic constipation. So the court does not

understand Gaudette's complaints that the ALJ gave insufficient

weight to the opinions of DP's doctors, or found that DP's ADHD

or "gastrointestinal problems" had "ceased." While the ALJ found

that those impairments did not, either alone or together,

functionally equal a listed impairment, Gaudette points to no

evidence that any medical source ever found otherwise. "Merely

diagnosing an impairment does not mean that the impairment is so

severe that it 'functionally equals the listings.'" Eaton v.

Astrue,

, 20 (quoting

(a)).

As to DP's "skin problems" and "allergies," Gaudette never

claimed at the hearing before the ALJ that either of those

problems, alone or in combination with others, amounted to a

disabling impairment, so the ALJ cannot be faulted for failing to

address those issues in her decision. "When a claimant is

11 represented [by counsel, as Gaudette was at the hearing], the ALJ

should ordinarily be entitled to rely on . . . counsel to

structure and present the claimant's case in a way that

claimant's claims are adequately explored." Faria v. Comm'r of

Soc. Sec' y ,

(table),

, at *1 (1st

Cir. Oct. 2, 1998) (quotation marks omitted).

Finally, while the ALJ did not make a specific finding as to

the side effects of DP's medication, the ALJ noted that "the side

effects of medication" was a factor in the "health and physical

well-being" domain, see

a (1) (2), and went on

to find that DP has less than a marked degree of limitation in

that domain. The absence of a specific finding as to the side

effects of DP's medication is unsurprising, since its discussion

at the hearing before the ALJ was limited to Gaudette's testimony

that DP's "ADHD medicines . . . all gave her either migraines or

really bad headaches . . . and it's getting worse instead of

better."4 In any event, Gaudette does not explain how DP's

migraines could severely limit her health and physical well-being

(either alone or in combination with her other symptoms), nor,

again, is there any evidence that any medical source ever

suggested as much. So the ALJ did not err by failing to mention

4As the Commissioner points out, the social worker who had been treating DP noted, in February 2010, that she "had no more headaches."

12 DP's headaches in the written decision. See Lord v. Apfel,

(D.N.H. 2000).

For the foregoing reasons, Gaudette's motion to reverse the

ALJ's decision5 is DENIED, and the Commissioner's motion to

affirm the ALJ's decision6 is GRANTED. The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

Josfeph N. Laplante Ur/ited States District Judge

Dated: February 3, 2014

cc: Ralph A. Giangregorio, Esg. T. David Plourde, AUSA

5Document no. 8.

6Document no. 9.

13