Coppola v. SSA CV-12-4 92-JL 2/21/14

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Matthew Coppola

v. Civil No. 12-CV-492-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Matthew Coppola appeals the Social Security Administration/s

("SSA") denial of his applications for Disability Insurance

Benefits and Supplemental Security Income. An administrative law

judge at the SSA ("ALJ"), performing the five-step seguential

evaluation process set forth in

(a)(4) and

416.920(a)(4), ruled that, despite Coppola's severe impairments--

including polysubstance abuse, alcohol dependence, and mood

disorder-he retains the residual functional capacity ("RFC") to

perform his past relevant work as a landscape laborer and

Stocker, and is therefore not disabled. See

(a), 416.905(a). The Appeals Council later denied

Coppola's request for review of the ALJ's decision, see

§§

404.967, 416.1467, with the result that the ALU's decision became

the SSA's final decision on Coppola's applications, see id. §§

404.981, 416.1481. Coppola then appealed the decision to this court, which has jurisdiction under

(g) (Social

Security).

Coppola has filed a motion to reverse the decision. See

L.R. 9.1(b)(1). He argues that the ALJ made errors in performing

each of the steps from two to five in the evaluative process.

The Commissioner of the SSA maintains that the ALJ committed no

error at any step of the process, and has cross-moved for an

order affirming the decision. See L.R. 9.1(d). After careful

consideration, the court agrees with Coppola that the ALJ erred

at step four by failing to address the opinion of Coppola's

treating psychiatrist when determining Coppola's RFC, and thus

grants his motion to reverse (and denies the Commissioner's

motion to affirm) the ALJ's decision.

"The seguential evaluation process is a series of five

'steps' that [SSA] follow[s] in a set order."

(a)(4), 416.920(a)(4).

The claimant bears the burden, through the first four steps, of proving that he is disabled, i.e., that (1) he is not engaged in substantial gainful activity; (2) he has a severe impairment; (3) the impairment meets or equals a specific impairment listed in the Social Security regulations; and (4) the impairment prevents or prevented him from performing past relevant work. At the fifth step, the SSA bears the burden of showing that the claimant has the residual functional capacity to perform other work that may exist in the national economy.

2 Gaudreault v. Astrue,

(internal citations

omitted). "All five steps are not applied to every applicant, as

the determination may be concluded at any step along the

process." Seavey v. Barnhart,

(1st Cir. 2001).

Here, the ALJ determined that (1) Coppola is not engaged in

substantial gainful activity; (2) he has the severe impairments

listed above, i.e., polysubstance abuse, alcohol dependence, and

mood disorder; (3) those impairments do not meet or equal a

listed impairment; and (4) in light of his RFC, Coppola is able

to perform his past relevant work as a landscape laborer and

stocker. Although, as noted in the block quote above, that

finding alone was enough for the ALJ to deny Coppola's

applications, the ALJ nonetheless proceeded to the next step,

finding in the alternative that (5) Coppola also retains the RFC

to perform other work (to wit, the jobs of kitchen helper,

groundskeeper, and hand packer). The ALJ accordingly denied

Coppola's applications.

As already mentioned, the only one of these determinations

Coppola does not contest is the very first. And, as has also

been mentioned, the court--although it does not endorse Coppola's

kitchen-sink approach to this appeal--agrees with him that the

case must be remanded to the ALJ due to error at step four. An

extensive analysis of Coppola's claims of error at the remaining

3 steps is therefore not strictly necessary. Insofar as a

discussion of Coppola's claims regarding those steps might be

useful to the ALJ and the claimant on remand, however, the court

provides such a discussion below. C f . Morris v. Astrue,

(adopting similar approach).

I. Step two

Although the ALJ did not conclude the analysis at step two,

and, as just discussed, found that Coppola suffers from three

severe impairments, Coppola argues that the ALJ nonetheless erred

at that step by failing to conclude that Coppola labors under a

laundry list of other severe impairments that were either

identified in his applications or mentioned in his medical

records. Specifically, Coppola says that the ALJ should have

concluded that he also suffers from schizophrenia, depression,

bipolar disorder, post-traumatic stress disorder, generalized

anxiety disorder, anti-social personality disorder, and conduct

disorder.1

1Coppola also argues that the ALJ made "no finding, one way or another, as to whether there are [sic] any combination of impairments that is severe." Memo, in Supp. of Mot. to Reverse (document no. 10-1) at 9. Given the ALJ's specific finding that Coppola had three severe impairments (polysubstance abuse, alcohol dependence, and mood disorder), this argument is simply counterfactual and merits no discussion.

4 As both Coppola and the Commissioner note, it is well-

settled that "an ALJ commits no reversible error at step two by

identifying only some of a claimant's impairments as 'severe' so

long as he considers the limiting effects of all the claimant's

impairments, even those that are not severe, in conducting his

analysis in the remaining steps." Taylor v. Colvin,

(quoting

(e)) (internal quotation marks

and alterations omitted); see also Syms v. Astrue,

,

3 ("[A]n error at Step Two will result in reversible error only

if the ALJ concluded the decision at Step Two, finding no severe

impairment."). Coppola protests that the ALJ did not "continue

through the remaining steps to consider all of [his] mental

impairments." Memo, in Supp. of Mot. to Reverse (document no.

10-1) at 9 (emphasis in original). This complaint appears to

have its genesis in the fact that the ALJ did not identify by

name each of the myriad diagnoses that appear in Coppola's

applications and medical records. See

(decrying the lack of

"mention or discussion of" Coppola's diagnoses).

An ALJ, however, is not obliged to expressly address each of

a claimant's diagnoses. Rather, as just mentioned, the ALJ's

duty is to consider "the limiting effects of all the claimant's

impairments," both severe and non-severe, Taylor,

(emphasis added); see also, e.g.,

,

5 404.1545, 416.923, 416.945, and "the mere diagnosis of [a]

condition alone . . . reveals nothing about the limiting effects

on [a claimant's] ability to function." Johnson v. Astrue, No.

8:ll-cv-186,

, at *8 (M.D. Fla. Nov. 9, 2011).

Here, the ALJ noted Coppola's reported "symptoms including

depression, difficulty concentrating, racing thoughts, feeling

overwhelmed and social anxiety," as well as his inability to

focus, difficulty prioritizing tasks, and inappropriate behavior

in social situations and when dealing with authority figures.

Admin. R. at 14. The ALJ considered these alleged effects in

light of the record evidence as a whole. Id. at 14-18. Coppola

does not identify any additional limiting effects of any of the

various diagnoses that, in his opinion, the ALJ should have taken

into account at step two. The court will not conclude that the

ALJ committed any error at this step of his analysis merely

because he failed to pay lip service to those diagnoses. Cf.

Dorman v. Astrue, No. 12-40023-TSH,

, *11 & n.6

(D. Mass. May 21, 2013) (rejecting claimant's argument that ALJ

ignored certain diagnoses at step two where ALJ considered the

findings accompanying those diagnoses when assessing claimant's

mental limitations).

6 II. Step three

Coppola also contends that the ALJ erred in concluding that

his impairments do not meet or medically equal the severity of

any of the specific impairments listed in Appendix 1 to 20 C.F.R.

Part 404, Subpart P. In a written pre-hearing submission to the

ALJ, Coppola's counsel asserted that Coppola meets or equals "the

listings at 12.00," the section of the listings dealing with

mental disorders. Admin. R. at 121. At the hearing before the

ALJ, counsel narrowed her focus to listings 12.04, "affective

disorders," and 12.06, "anxiety-related disorders." See

(arguing that Coppola meets "the listings for 12.04 for

depression and 12.[06] for anxiety").2 Despite this argument,

the ALJ's written decision expressly addresses only listings

12.04 and 12.09, "substance addiction disorders," and concludes

that Coppola's impairments do not meet those listings. This,

unsurprisingly, provides the basis for Coppola's primary

challenge to the ALJ's step three analysis: that the ALJ also

should have considered listing 12.06, and that his failure to do

so constitutes reversible error. Although the court agrees that

2The hearing transcript indicates that Coppola's counsel referred to listing 12.05, but it is clear from her remarks at the hearing that she did not mean to refer to that listing--which applies to "intellectual disability"--and in fact meant listing 12.06.

7 the ALJ should have addressed that listing, his failure to do so

was harmless and does not require remand.

When a claimant or counsel argues before the ALJ that the

claimant's impairments meet or medically equal a particular

listing--as Coppola's counsel did in this case--the ALJ should

ordinarily discuss that listing in the written decision, and

failure to do so may be grounds for remand. See Matern v.

Astrue, No. 06-CV-695,

, at *3 (D. Utah Apr. 9,

2009) ("Having [a particular listing] brought to his attention in

the hearing, the ALJ should have considered whether [claimant]

met the listing, yet he failed to address in his decision whether

he considered, adopted or rejected this argument."); McCall v.

Heckler, No. 84-C-9980,

, at *3 (N.D. 111. Oct. 23,

1985) ("[Claimant's] attorney's argument that [claimant] met

listing 1.05 [was] before the ALJ and should have been

addressed."). Remand, however, is not a foregone conclusion in

those circumstances, and "is not essential if it will amount to

no more than an empty exercise." Ward v. Comm'r of Soc. Sec.,

(1st Cir. 2000); see, e.g., Washington v.

Astrue, No. 12-CV-1429,

, at *9-13 (E.D. La. Mar.

13, 2013) (ALJ's failure to address specific listings despite

counsel's argument that claimant met those listings did not

8 warrant remand because claimant did not identify evidence that he

met the listings). That is the case here.

For Coppola's impairments to meet or medically equal listing

12.06, Coppola would need to meet the requirements of paragraph A

of that listing, as well as the requirements of either paragraph

B or paragraph C of the listing. See

, Subpt. P,

A p p . 1, § 12.06. That presents an insurmountable obstacle for

him. Although he cites generally to a handful of treatment notes

in the administrative record, Coppola does not explain how that

evidence would support a finding that he meets paragraph A's

requirements (and, after its own review, the court does not see

how it could) .3 That alone would be reason enough to conclude

3Paragraph A requires " [m]edically documented findings" of at least one of the following: 1. Generalized persistent anxiety accompanied by three out of four of the following signs or symptoms: a. Motor tension; or b. Autonomic hyperactivity; or c. Apprehensive expectation; or d. Vigilance and scanning; or 2. A persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity, or situation; or 3. Recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear.

9 that the ALJ's error was harmless. See Washington,

at *10-11 ("Even if the ALJ erred by failing to discuss

[certain listings] specifically, the error is harmless, unless

[the claimant] can point to substantial medical evidence that he

meets either listing."). Even assuming, though, that Coppola

meets the requirements of paragraph A, he cannot show that he

meets the requirements of either paragraph B or paragraph C.

Paragraph B of listing 12.06 is identical to paragraph B of

listing 12.04. Both require that the claimant's symptoms result

in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

terror and sense of impending doom occurring on the average of at least once a week; or 4. Recurrent obsessions orcompulsions which are a source of marked distress; or 5. Recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress[.]"

, Subpt. P, App. 1, § 12.06.A. The records Coppola cites in support of his argument at step three do not appear to contain any findings approaching the severity of these symptoms. In fact, those records are inconsistent with the existence of certain symptoms listed in paragraph A. See, e.g.. Admin. R. at 279 (noting that Coppola "denies obsessions"); id. at 306 (Coppola "denies any panic attacks").

10 3. Marked difficulties in maintaining concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each of extended duration.

, Subpt. P, App. 1, §§ 12.04.B, 12.06.B. In

concluding that Coppola does not meet the reguirements of listing

12.04, the ALJ specifically addressed paragraph B, finding that

Coppola's impairments result in only mild or moderate limitations

in the first three categories and that Coppola has had no

episodes of decompensation. These findings, which Coppola does

not challenge on appeal (or even acknowledge in his memorandum),

and which are supported by substantial evidence, likewise

preclude a conclusion that the criteria of paragraph B of listing

12.06 are satisfied.

Paragraph C of listing 12.06 reguires that the claimant's

impairments result "in complete inability to function

independently outside the area of one's home." Id. § 12.06.C.

Coppola makes no claim that this paragraph applies, and the

record evidence belies any such claim. Among other things, as

the ALJ found in his decision, Coppola reported that he was able

to shop for himself and manage his finances and that he used a

computer at the local library, and he held a part-time job in a

grocery store, where he interacted with others. This evidence,

and the ALJ's resultant finding, demonstrates that Coppola's

11 anxiety does not render him entirely incapable of functioning

independently in public (though it may arguably result in some

difficulty doing so). Because Coppola has not identified any

evidence that he meets the requirements of listing 12.06, any

error by the ALJ in failing to discuss that listing in his

written decision is harmless and does not warrant remand.4

4Coppola's memorandum of law also bemoans the fact that the ALJ's written decision did not consider or discuss listings 12.03, "psychotic disorders," and 12.08, "personality disorders." The court is reluctant to conclude that the ALJ erred by failing to expressly address these listings when Coppola's counsel chose to focus the ALJ's attention elsewhere. C f . Dubois v. Astrue,

, 13 n.4 (declining to ascribe error to ALJ for failing to independently "seize[] upon and pursue[]" argument that counsel did not make). Again, though, even if the ALJ erred by failing to specifically address those listings in his decision, that error was harmless. For a claimant's impairments to meet or equal listing 12.08, the same paragraph B criteria discussed above must be satisfied, so the ALJ's finding that those criteria are not met here--which, again, Coppola does not challenge on appeal--precludes the conclusion that listing 12.08 applies to Coppola. Those same paragraph B criteria apply to listing 12.03, which alternatively may be met by satisfying the same paragraph C criteria that apply to listing 12.04. The ALJ expressly considered those criteria in his written decision as well, concluding that there was "no evidence of [their] presence." Admin. R. at 13. Once again, Coppola does not challenge that finding on appeal, or identify any evidence to the contrary. At any rate, if Coppola believes the ALJ should have considered these listings, he will have ample opportunity to make that argument on remand. As a final aside, the court notes Coppola's assertions that the ALJ's step 3 discussion "contains no analysis of the medical record" and "no citations to the record evidence." Memo, in Supp. of Mot. to Reverse (document no. 10-1) at 10. While true, this is irrelevant. The ALJ's RFC assessment contains a lengthy analysis of the medical record, replete with record citations.

12 Ill. Step Four

Coppola maintains that the ALJ committed several errors in

evaluating his RFC and determining that he was capable of

performing his past relevant work. He asserts that the ALJ (1)

should have, in the written decision, explicitly addressed the

opinion of one of Coppola's treating sources that Coppola was

disabled; (2) should not have relied upon the opinion of the

testifying medical expert; (3) improperly weighed other medical

evidence in the record; (4) failed to analyze the record in

accordance with agency guidance for evaluating cases involving

drug addiction and alcoholism; and (5) improperly concluded that

Coppola's jobs as a landscape laborer and stocker gualified as

"past relevant work." While Coppola's last four assignments of

error are meritless, the court agrees with the first, and thus

remands this case to the ALJ.

A. Treating source's opinion of disability

Coppola argues that the ALJ's analysis of his residual

functional capacity was "incomplete" because the ALJ's written

decision contained no discussion of an opinion rendered by Dr.

See Admin. R. at 14-18. The ALJ's step 3 discussion makes clear that the ALJ relied upon this analysis in making findings at step 3. See

at 13-14 (citing multiple times to discussion of medical evidence in residual functional capacity assessment). Nothing more was reguired.

13 Keri Lemmond, Coppola's treating psychiatrist, that Coppola was

disabled and unable to "do any form of work" due to post-

traumatic stress disorder, bipolar disorder, generalized anxiety

disorder, social phobia, and polysubstance dependence. Admin. R.

at 365. The Commissioner concedes that the ALJ did not discuss

Dr. Lemmond's opinion, but maintains that the ALJ committed no

error because Dr. Lemmond's opinion was on an "issue reserved to

the Commissioner" and thus could not have altered the ALJ's

analysis. The court does not share the Commissioner's view.

The Commissioner is correct that a medical opinion that a

claimant is "'disabled' or 'unable to work'", even if it is from

a treating source like Dr. Lemmond, is considered an opinion on

an issue "reserved to the Commissioner" and is not entitled to

"special significance."

(d), 416.927(d);

see also Social Security Ruling ("SSR") 96-5p, Tit es and XVI:

Medical Source Opinions on Issues Reserved to the Commissioner,

, at *2 (S.S.A. 1996) ("[TJreating source opinions

on issues that are reserved to the Commissioner are never

entitled to controlling weight or special significance."). That

does not mean, however, that an ALJ need not take notice of such

an opinion. To the contrary, the ALJ "must always carefully

consider medical source opinions about any issue, including

opinions about issues that are reserved to the Commissioner."

14 SSR 96-5P,

, at *2. Such opinions "must never be

ignored," and if the record contains a treating source's opinion

on an issue reserved to the commissioner, the ALJ's decision

"must explain the consideration given to the treating source's

opinion(s)." Id. at *3, *6.

The ALJ therefore erred in omitting any discussion of Dr.

Lemmond's opinion from his written decision. This omission is

critical: without such a discussion, "this court cannot know

whether the ALJ considered and rejected the [opinion] or whether

he merely overlooked it." Dwyer v. Astrue,

(citation and internal quotation marks omitted). The

Commissioner nonetheless suggests that Dr. Lemmond's opinion

"does not warrant any further consideration by the ALJ" because

it provides "no assessment of [Coppola's] functional limitations

or what activities he could still perform despite his

impairments." Memo, in Supp. of Mot. to Affirm (document no. 13-

1) at 9. But it is not the task of this court to re-weigh the

record evidence and "articulate for the first time at the appeals

stage good reasons for rejecting a treating source's opinion."5

5This court observes, as Judge McAuliffe did in Bergeron, that in certain circumstances--e.g ., where a treating source's relationship with the claimant is "negligible"--an ALJ's "failure to explain the consideration given to a treating source's opinion on an issue reserved to the Commissioner can be a harmless error that does not require remand."

, 11 n.2. As in

15 Bergeron v. Astrue,

(citation and internal

quotation marks omitted) (McAuliffe, J.). This case must be

remanded to the ALJ so he can consider Dr. Lemmond's opinion and,

if he rejects it, explain his reasons for doing so. See

at

10-12 .

B. Medical expert testimony

Coppola also argues that the ALJ erroneously relied on the

opinion of Dr. Stuart Gitlow, a medical expert ("ME") who

testified at the administrative hearing. The ALJ gave "great

weight" to Dr. Gitlow's opinion that the symptoms of Coppola's

mental impairments do not impose any significant limitations

(though the ALJ rejected Dr. Gitlow's opinion that Coppola does

not have a medically determinable mood disorder).

Coppola's objections to the ALJ's reliance on Dr. Gitlow's

testimony are twofold. First, Coppola says, the ALJ deviated

from the requirements imposed by the Hearings, Appeals and

Litigation Law Manual ("HALLEX"), an internal SSA procedural

manual, in taking Dr. Gitlow's testimony. This deviation from

protocol, Coppola argues, deprived him of a fair hearing and

necessitates remand. Second, Coppola asserts that Dr. Gitlow's

testimony was "unreliable" and "substantially deviated from the

Bergeron, however, this case does not present such circumstances.

16 medical record," and was thus not entitled to the great weight

accorded it by the ALJ. Neither argument is persuasive.

In support of his first objection, Coppola relies primarily

upon HALLEX § 1-2-5-39. That section provides, in relevant part:

During the opening statement, the ALJ must explain why ME testimony is necessary. The ME may attend the entire hearing, but this is not required. Before the ME testifies, the ALJ must:

• ensure on the record that the ME has examined all medical and other evidence of record;

• ensure that the record contains an accurate statement of the ME's professional qualifications;

• give the claimant and the representative an opportunity to ask the ME questions about his or her professional qualifications; and

• summarize the opening statement or relevant testimony on the record if the ME was not present.

HALLEX § 1-2-5-39, www.ssa.gov/OP_Home/hallex/I-02/I-2-5-3 9.html

(last visited Feb. 3, 2014). As Coppola points out, the ALJ did

not explain on the record why Dr. Gitlow's testimony was

necessary, and the record contains no statement of Dr. Gitlow's

professional qualifications. Both these omissions contravened

§ 1-2-5-39.6

6Coppola suggests that the ALJ also failed to comply with § 1-2-5-39 by not providing him with Dr. Gitlow's qualifications and opinions prior to the hearing, by permitting Dr. Gitlow to testify before Coppola himself did, and by asking Dr. Gitlow "general questions" at the hearing rather than sending Dr. Gitlow written interrogatories prior to the hearing. Memo, in Supp. of

17 That the ALJ did not comply with the letter of HALLEX does

not, however, require remand. It is an open question in this

circuit whether an ALJ's failure to comply with HALLEX can ever

constitute reversible error. Our court of appeals has never

addressed that issue, and other district courts in this circuit

have arrived at diverqent conclusions. Compare Green v. Astrue,

No. ll-cv-11711,

, at *10 n.5 (D. Mass. Feb. 20,

2013) (HALLEX "has no legal force, and it does not bind the SSA")

and Mason v. Astrue, No. 08-cv-11957,

, at *6 n.7

(D. Mass. Mar. 5, 2010) ("HALLEX provisions . . . lack the force

of law and create no judicially-enforceable rights.") with Dawes

v. Astrue, No. ll-cv-272,

(D. Me. Mar. 30, 2012)

(ALJ's failure to comply with HALLEX warranted remand) and E .E .P .

ex re . Palmer v. Barnhart, No. 03-cv-246,

(D.

Me. June 24, 2002) (same). The judges of this court have never

Mot. to Reverse (document no. 10-1) at 12-14. Section 1-2-5-39, however, does not provide any guidance on any of these practices, let alone prohibit them. In a single sentence in his memorandum, Coppola also claims that the ALJ's "general questions" of Dr. Gitlow were "beyond" the scope of § 1-2-5-34 of HALLEX (which outlines circumstances in which an ALJ may obtain ME testimony). Id. at 13. Exactly how the ALJ's questions exceeded that section's scope is not immediately apparent to the court, and Coppola has made no effort to explain his position, so the court considers this argument waived. See United States v. Zannino,

(1st Cir. 1990) ("[IJssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").

18 had occasion to resolve this issue directly, see Sibley ex rel.

Sibley v. Astrue,

, 29 n.10 (Barbadoro, J.); Platon

v. Astrue, No. ll-cv-495,

, at *5-6 (D.N.H. Nov.

13, 2012) (DiClerico, J.), and this order need not resolve it,

either. Even those courts to conclude that an ALJ's failure to

adhere to HALLEX can constitute reversible error have required a

claimant to demonstrate that he or she suffered some prejudice

from the ALJ's misstep before remanding. See Sibley,

at 29 n.10. Coppola does not argue that either of the ALJ's

deviations from § 1-2-5-39 caused him any prejudice; to the

contrary, he concedes that "[t]hese omissions by themselves were

not problematic." Memo, in Supp. of Mot. to Remand (document no.

10-1) at 13. The ALJ's deviation from HALLEX in taking Dr.

Gitlow's testimony thus does not require remand.

Coppola's second objection, that Dr. Gitlow's testimony was

"unreliable," likewise falls short. This assessment of Dr.

Gitlow's reliability stems from Coppola's belief that "Dr.

Gitlow's testimony substantially deviated from the medical

record." Id. at 14. Yet nothing Coppola points to in support of

this claim shows any deviation from the medical record, let alone

a deviation that could fairly be termed "substantial."

By way of example. Dr. Gitlow testified that to diagnose

Coppola with a psychiatric disorder, he would have to observe a

19 period of time in which Coppola was "demonstrably clear of

psychoactive substances" such as drugs and alcohol, and noted

that he was unable to do so because all of the toxicology screens

in the record were positive. Admin. R. at 56-57. In an effort

to undermine this testimony, Coppola points out that on several

occasions, his mental health providers did not order toxicology

screens. This is, however, beside the point. Dr. Gitlow

testified about, and rendered his opinion based upon, the

toxicology screens that Coppola's providers actually did perform.

His testimony was entirely consistent with the results of those

tests. Similarly, the fact that Coppola's providers chose not to

perform those tests on some occasions does nothing to undermine

Dr. Gitlow's testimony that the standard of care published by the

American Psychiatric Association ordinarily reguires such tests.7

As yet another example, Coppola claims that Dr. Gitlow

incorrectly testified that Coppola was not "forthcoming regarding

his substance abuse" during an October 2011 visit with one of his

providers. See Admin. R. at 38-39. During that visit, Coppola

7Coppola asserts that his providers did not perform such tests because he did not show any signs of substance abuse on his visits with them. This is rank speculation that finds no support in the record. Even assuming, though, that Coppola's providers did not observe any signs of substance abuse during his visits, that does not amount to evidence that Coppola was "demonstrably clear of psychoactive substances," such that it would undermine Dr. Gitlow's testimony.

20 informed the provider that (1) he had "not had any kind of

alcohol since March and even before that he used alcohol very

infrequently" and (2) he had not used marijuana, cocaine, or

ecstasy "for more than a year." Id. at 463. In a remarkable

feat of disingenuousness, Coppola points to the fact that he

disclosed his alcohol use in March as evidence that he was, in

fact, forthcoming about his substance abuse. Yet, as Dr. Gitlow

pointed out in his testimony, Coppola tested positive for

cannabis during a March 2011 visit to the emergency room--belying

his claim to his provider that he had not used marijuana in over

a year--and Coppola's blood alcohol level was tested at 0.313

during another emergency room visit in April 201l--belying his

claim that he had not used alcohol since March. See id. at 459-

60. So Dr. Gitlow's testimony that Coppola was not forthcoming

about his substance abuse was amply supported by the medical

record.

In short, neither the ALJ's failure to adhere to HALLEX in

taking Dr. Gitlow's testimony nor Coppola's characterization of

that testimony as "unreliable" provides grounds for remand.8

8Coppola also asserts that Dr. Gitlow was "biased," citing a column he wrote that deals with the evaluation of disability claimants who have tested positive for cannabinoids in light of the recent emergence of medical marijuana. Contrary to Coppola's argument, however, the court sees nothing in the article that even faintly suggests bias on Dr. Gitlow's part or otherwise

21 C. Other medical evidence

Coppola contends that the ALJ also erred in his treatment of

other medical opinions in the record. Specifically, Coppola

claims that the ALJ, in evaluating the medical opinion evidence

pursuant to

and 416.927, erred in giving

"significant weight" to the opinion of Dr. Patricia Salt, a state

agency medical consultant, and should have attributed greater

weight to the opinions of Dr. Stephanie Lynch (another state

agency consultant) and Coppola's treating sources at Seacoast

Mental Health Center ("SMHC"). None of Coppola's objections to

the ALJ's analysis or this opinion evidence are persuasive.

Coppola argues that the ALJ should have accorded less weight

to Dr. Salt's opinion because she "had virtually no records" at

the time she rendered that opinion. Memo, in Supp. of Mot. to

Reverse (document no. 10-1) at 19-20. He cites several cases

holding that when a medical source had only an incomplete medical

record at her disposal at the time she rendered her opinion, the

ALJ cannot "rel[y] exclusively" on that opinion. Padilla v.

Barnhart,

(1st Cir. 2006); see also

Alcantara v. Astrue,

(1st Cir. 2007)

(opinion of medical consultant who examined only one-third of

undermines his credibility as a witness.

22 medical record was not, by itself, sufficient evidence to support

ALJ's finding of no disability); Russell v. Astrue,

(N.D. Ga. 2010) (similar); L.B.M. ex rel. Motley

v. Astrue, No. 08-cv-1354,

, at *12-*13 (S.D. Ind.

Mar. 23, 2010) (similar). As Coppola acknowledges, though, the

ALJ did not rely exclusively on Dr. Salt's opinion. Rather, the

ALJ relied only in part upon that opinion, and relied primarily

upon Dr. Gitlow's opinion, which was rendered with the benefit of

the entire medical record. The cases Coppola cites are thus

inapposite. C f ., e.g., Guisti v. Astrue, No. ll-cv-360,

, at *10-11 (D.R.I. Aug. 22, 2012) (explaining that ALJ's

partial reliance on opinion of medical consultants who did not

review entire medical record was inconsequential because ALJ

relied primarily on testimony of expert who did examine the

entire record) .

To be sure, the completeness of the record before a medical

source is a factor an ALJ should consider when determining the

amount of weight to give to the opinions of that source. See

(c)(6), 416.927(c)(6) (identifying "the extent

to which an acceptable medical source is familiar with other

information in your case record" as a "relevant factor" that SSA

considers in deciding the weight to give the source's opinion).

Yet it is only one factor out of many, and the fact that an

23 opinion was rendered without the benefit of the entire medical

record does not, in and of itself, preclude an ALJ from giving

significant weight to that opinion. See Guisti,

at *10. Coppola identifies no other deficiency in the ALJ's

treatment of Dr. Salt's opinion, and the record reveals that the

ALJ, in accordance with his duties under §§ 404.1527 and 416.927,

relied on Dr. Salt's opinion only insofar as that opinion was, in

his estimation, consistent with other evidence of record (and,

indeed, discounted that opinion to the extent it conflicted with

other record evidence--including evidence tendered after Dr.

Salt's review, see Admin. R. at 17 (rejecting Dr. Salt's opinion

that Coppola had only mild difficulties in maintaining

concentration, persistence, or pace)).

Ironically, Coppola segues seamlessly into arguing that the

ALJ should have accorded greater weight to Dr. Lynch's opinion,

although Dr. Lynch had even less of a record at her disposal than

Dr. Salt did at the time she rendered her opinion. As Coppola

notes. Dr. Lynch examined him, and SSA regulations provide that

the opinions of examining sources are generally entitled to more

weight than those of non-examining sources. See

(c)(1), 416.927(c)(1). This rule is, however, not

inflexible, and, again, the nature of the relationship between a

source and the claimant is but one of several factors an ALJ must

24 consider when determining the amount of weight to give to that

source's opinions. The ALJ must also consider the extent to

which the source identifies evidence such as "medical signs and

laboratory findings" in support of her opinions, the quality of

the source's explanation for those opinions, and the opinions'

consistency with the record as a whole.

§§ 404.1527(c) (3)-

(4) , 416.927 (c) (3)- (4) .

Here, the ALJ, in according only "some weight" to Dr.

Lynch's opinion, noted that it was not "well supported by the

objective evidence obtained during the examination," including

Coppola's perfect 30/30 score on a mini-mental status examination

and "his rapid performance of serial 7 subtractions." Admin. R.

at 15-16. The ALJ observed that Dr. Lynch's opinion appeared to

be based almost exclusively on Coppola's subjective allegations,

although those allegations were inconsistent with Dr. Lynch's own

observations regarding Coppola's grooming, appearance, mood, and

reported activities of daily living. Id. The ALJ also noted

that Coppola's subsequent treatment records undermined Dr.

Lynch's opinion. Id. at 16. While Coppola argues that the ALJ,

in discounting Dr. Lynch's opinion in this manner, exceeded "his

competence as a lay person" and "made evaluative interpretations

permitted only by medical experts," Memo, in Supp. of Mot. to

Reverse (document no. 10-1) at 21, there is nothing inappropriate

25 about an ALJ comparing "a medical-source opinion with a

claimant's medical records, to determine whether the opinion is

consistent with those records." Widlund v. Astrue, No. 11-cv-

371,

, at *9-*10 (D.N.H. Apr. 16, 2012). As the

Commissioner points out, moreover, even if squaring Dr. Lynch's

opinion with her observations and the objective evidence she

obtained during her examination were a matter reserved to medical

experts, the ALJ's conclusion was supported by two medical

experts--Drs. Gitlow and Salt--both of whom reviewed Dr. Lynch's

report and found it internally inconsistent. See Admin. R. at

53-54, 300.

Nor did the ALJ err in giving only "some weight" to the

opinions of Coppola's sources at SMHC. The ALJ supportably found

(based upon Dr. Gitlow's testimony) that the opinion of Coppola's

therapist at SMHC, David Ceglia, was inconsistent with the

objective observations made during Coppola's visits, and "not

fully reliable" due to Coppola's lack of candor regarding his

prior drug use. Id. at 17; see also Part III.B, supra. Coppola

makes no effort to explain how the ALJ rnisweighed Ceglia's

opinion, apart from merely invoking the rule that a treating

source's opinion is typically entitled to more weight than that

of other sources. As a licensed mental health counselor,

however, Ceglia does not qualify as a treating source under SSA

26 regulations. See SSR 06-03p, Titles II and XVI: Considering

Opinions and Other Evidence from Sources Who Are Not "Acceptable

Medical Sources" in Disability Claims,

, at *2

(S.S.A. 2006) ("only 'acceptable medical sources' can be

considered treating sources");

(a),

416.913(a) (defining "acceptable medical sources").

No doubt recognizing this, Coppola attempts to attribute

Ceglia's opinion regarding Coppola's functional limitations to

Dr. Edward Drummond, a psychiatrist who cosigned Ceglia's intake

summary for Coppola. Yet Dr. Drummond does not qualify as a

treating source, either, because apart from this signature--which

itself does not even indicate that Dr. Drummond ever examined

Coppola--there is no other evidence in the record that indicates

that he saw Coppola again, let alone had the type of "ongoing

treatment relationship" with Coppola that would be required to

make him a "treating source."

, 416.902;

see Graham v. Barnhart,

. So the general rule

that allots greater weight to the opinions of treating sources--

which, again, is all that Coppola cites to support his claim that

the ALJ erred in analyzing the SMHC opinions--is inapplicable

here.

The ALJ committed no error in his analysis of the opinions

of Salt, Lynch, and Ceglia.

27 D. Social Security Ruling 13-2p

Coppola argues that the ALJ erred by failing to apply SSR

13-2p, Titles II and XVI: Evaluating Cases Involving Drug

Addiction and Alcoholism (DAA),

(S.S.A. 2013), a

recent Social Security Ruling that explains the SSA's policies

for considering drug addiction and alcoholism. In criticizing

the ALJ for not relying upon this ruling, however, Coppola

overlooks a critical fact: the ALJ rendered his written decision

on November 16, 2011, but the SSA did not issue SSR 13-2p until

February 20, 2013--over one year later. (Indeed, the SSA had not

yet issued SSR 13-2p at the time the Appeals Council denied

Coppola's request for review of the ALJ's decision in October

2012.) It therefore would have been impossible for the ALJ to

apply that ruling when rendering his decision. The court will

not fault the ALJ for his failure to apply a Social Security

Ruling that postdated the final agency action in this case.9 Cf.

Parker ex rel. Parker v. Comrn'r, Soc. Sec. Admin., No. 13-cv-19,

, at *9-*10 (D. Me. Jan. 21, 2014) (substantially

identical case).

90f course, the ALJ likely will have to apply that ruling on remand.

28 E. Coppola's past relevant work

After taking testimony from a vocational expert ("VE") at

the hearing, the ALJ concluded that, in light of his RFC, Coppola

retains the ability to work as a landscape laborer or a stocker--

jobs that the ALJ found to be Coppola's "past relevant work"

within the meaning of the SSA regulations. Coppola argues that

the ALJ's conclusion was erroneous as to both jobs. Coppola is

mistaken.

Coppola's primary argument is that neither job "rose to the

level of past relevant work" because the jobs were "sporadic" and

"seasonal." Memo, in Supp. of Mot. to Reverse (document no. 10-

1) at 23. The court questions whether Coppola's work as a

stocker, which he had been doing for about five months as of the

date of the hearing, see Admin. R. at 67, can fairly be called

"sporadic." In any event, though, neither the sporadic nor the

seasonal nature of a job prevents it from being considered "past

relevant work." Rather, "past relevant work" is defined to be

"work that [the claimant has] done within the past 15 years, that

was substantial gainful activity, and that lasted long enough for

[the claimant] to learn to do it."

(b)(1),

416.960(b)(1). Thus, even if a claimant performs a job

"sporadically" or only at certain times of year, it may still

"rise to the level" of "past relevant work" if these criteria are

29 met. See, e.g., Reeder v. Apfel,

(8th Cir.

2000) (holding that claimant's seasonal work as a fruit picker

qualified as past relevant work); Stephenson v. Halter, No. 00-

cv-391,

, *7 (D.N.H. June 21, 2001) (rejecting

claimant's argument that prior employment as a secretary could

not be considered past relevant work due to its sporadic nature).

Coppola is correct that one of the SSA's rulings provides

that "[a]n individual who has worked only sporadically or for

brief periods of time during the 15-year period, may be

considered to have no relevant work experience." SSR 82-62,

Titles II and XVI: A Disability Claimant's Capacity to Do Past

Relevant Work, In General,

, at *1 (S.S.A. 1982).

As other courts have explained, however, this is simply a

reference to the durational requirement discussed later in the

ruling, see, e.g., Jozefowicz v. Heckler,

(10th Cir. 1987), i.e., that the period of time during which the

claimant performed a job was "sufficient for the worker to have

learned the techniques, acquired information, and developed the

facility needed for average performance in the job situation,"

SSR 82-62,

, at *2. Coppola makes no argument that

he did not perform the jobs of landscape laborer and stocker long

enough to meet this requirement, and the record evidence is

30 inconsistent with such an argument in any event, as the ALJ

specifically found. See Admin. R. at 18-19.

Coppola also argues that the ALJ misheard the VE's testimony

regarding his ability to perform his previous work as a stocker.

According to Coppola, the VE "testified that the only part of the

job of 'stocker' that the claimant could do . . . was the cart

pusher/retriever part." Memo, in Supp. of Mot. to Reverse

(document no. 10-1) at 23. Coppola has it exactly wrong. The VE

testified that Coppola could perform the job of a stocker, but

would not be able to perform the entirely separate job of a cart

pusher/retriever (another of Coppola's past jobs) as that job is

typically performed. See Admin. R. at 82. The ALJ committed no

error in concluding that Coppola's jobs as a landscape laborer

and stocker qualified as "past relevant work."

IV. Step Five

Finally, Coppola contends that the ALJ erred in finding, at

step five of the analysis, that he retains the ability to perform

the jobs of kitchen helper, groundskeeper, and hand packer. The

Dictionary of Occupational Titles ("DOT") rates those jobs as

requiring "02 Level Reasoning Development," i.e., the ability to

"[a]pply commonsense understanding to carry out detailed but

uninvolved written or oral instructions" and to "[d]eal with

31 problems involving a few concrete variables in or from

standardized situations." U.S. Dep't of Labor, Ernp't & Training

Admin., Dictionary of Occupational Titles, Vol. II, at 1011 (4th

ed., rev. 1991). Coppola maintains this requirement is

incompatible with the ALJ's assessment that he is "limited to

performing simple routine repetitive tasks." Admin. R. at 14.

Coppola's argument is not without some merit. As this court

has previously noted, there is an "inherent conflict between

skill levels as defined in the social security regulations . . .

and in the DOT." McGrath v. Astrue,

(internal

citation omitted). Specifically,

the Social Security regulations and the DOT use markedly different standards for addressing a claimant's ability to understand, remember, and concentrate on job duties. The regulations divide such abilities into only two categories--"short and simple instructions" and "detailed" or "complex" ones--whereas the DOT uses a more graduated scale ranging from one to six that does not easily accommodate itself to the regulations' simple/complex dichotomy. Thus, no one- to-one parallel can be found between "simple" as it is used under the regulations and the DOT's requirements.

at 24 (quoting Auger v. Astrue,

(D.

Me. 2011)). Coppola's challenge to the ALJ's step five finding

arises from this conflict, raising the question "whether a task

may be 'simple' under the regulations and still involve the kind

of 'detailed' tasks required under Level 2 reasoning."

(citation and internal quotation marks omitted).

32 This court, noting the unsettled nature of this question in

this circuit and the existence of divergent authority, found it

unnecessary to directly answer this question in McGrath. See id.

at 24-27. So too here: given the court's conclusion that the

ALJ erred in determining Coppola's RFC, see Part III.A, supra,

this case must be remanded to the ALJ. If it becomes necessary

on remand, the ALJ should, out of an abundance of caution,

address Coppola's reasoning ability under both the SSA

regulations and the DOT'S definitions.

Coppola also raises two other challenges to the ALJ's step

five conclusion, which warrant only brief attention. First, he

argues that the ALJ's finding that he is able to "tolerate only

occasional interactions and no cooperative tasks with coworkers"

precludes the conclusion that he can perform the kitchen helper,

groundskeeper, and hand packer jobs. That argument, however,

stems from Coppola's assertion that the DOT definitions for those

jobs "reveal[] that interaction and cooperation with others is

required of all the jobs," Memo, in Supp. of Mot. to Remand

(document no. 10-1) at 26, an assertion that is, quite simply,

incorrect. Second, he points out--correctly, this time--that the

ALJ's conclusion that he is capable of performing the job of

kitchen helper is contrary to the VE's testimony. See Admin. R.

at 83 (vocational expert testified "I don't believe the job of a

33 kitchen helper could be performed" if, as the ALJ found, Coppola

was limited to "occasional interaction with coworkers"). That

error alone, however, would not ordinarily require remand given

the ALJ's concurrent conclusion that Coppola is also capable of

performing the groundskeeper and hand packer jobs. See McGrath,

("A single occupation is sufficient to meet

the commissioner's burden at Step 5 of the evaluation process.").

In any event, the ALJ will have the opportunity to correct this

error on remand.

V. Conclusion

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

ALJ's decision10 is GRANTED, and the Commissioner's motion to

affirm it11 is DENIED. See

(g). The clerk shall

enter judgment accordingly and close the case.

Coppola's counsel is reminded that pursuant to LR 7.1(a) (3),

memoranda in support of dispositive motions may not exceed 25

pages. Coppola's overlong memorandum in support of his motion to

reverse violates this rule. The violation is de minimis and

warrants no remedial action, but counsel is cautioned that the

court expects her adherence to L.R. 7.1(a)(3) in the future.

“’Document no. 10.

“ Document no. 13.

34 SO ORDERED.

jQieeph N. Laplante Ufiited States District Judge

Dated: February 21, 2014

cc: Janine Gawryl, Esq. T. David Plourde, Esq.

35