UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jeffrey Phaneuf

v. Civil No. 13-cv-139-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner Social Security Administration

O R D E R

Pursuant to

(g), Jeffrey Phaneuf moves to

reverse and remand the decision of the Acting Commissioner of

the Social Security Administration denying his application for

disability insurance benefits and supplemental security income.1

Phaneuf contends that the Administrative Law Judge (“ALJ”) erred

in weighing the medical opinion evidence, erred in his

credibility assessment, and erred in failing to find him

disabled at Step Three of the sequential analysis. The Acting

Commissioner moves to affirm the decision.

Standard of Review

Disability, for purposes of social security benefits, is

“the inability to do any substantial gainful activity by reason

of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or

1 Although the applicant’s counsel spelled his name “Jeffery”, the administrative records shows that his name should be “Jeffrey”. can be expected to last for a continuous period of not less than

12 months.”

(a).2 The ALJ follows a five-

step sequential analysis for determining whether a claimant is

disabled. § 404.1520. The claimant bears the burden, through

the first four steps, of proving that his impairments preclude

him from working. Freeman v. Barnhart,

(1st

Cir. 2001). At the fifth step, the Commissioner determines

whether other work that the claimant can do, despite his

impairments, exists in significant numbers in the national

economy and must produce substantial evidence to support that

finding. Seavey v. Barnhart,

(1st Cir. 2001).

In reviewing the decision of the Acting Commissioner in a

social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey,

.

The court defers to the ALJ’s factual findings as long as they

are supported by substantial evidence. § 405(g). “Substantial evidence is more than a scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” Astralis Condo. Ass’n v. Sec’y Dep’t of

Housing & Urban Dev.,

(1st Cir. 2010). 2 The Social Security Administration promulgated regulations governing eligibility for disability insurance benefits at Part 404 and for supplemental security income at Part 416. Because the regulations are substantially the same, the court will cite only to the disability insurance benefits regulations, Part 404. See McDonald v. Sec’y of Health & Human Servs.,

, 1120 n.1 (1st Cir. 1986).

2 Factual Background

Phaneuf’s records show that he has a long history of

mental-health issues. Thomas E. McCandless first treated

Phaneuf in 1980 and provided an evaluation in 1990 in which he

diagnosed Phaneuf with an anti-social personality disorder.

More recently, Phaneuf received counseling with Stephen

Boy, Ph.D., beginning in October of 2009. Phaneuf told Dr. Boy

that he was estranged from his wife and that he had had a

lifelong history of criminal behavior. Phaneuf said that he

“pushes it to the point [that] he [might] be incarcerated.” Dr.

Boy diagnosed substance abuse and antisocial behavior and noted

that Phaneuf was at risk for impulsive behavior because of his

addiction. In December and January, Phaneuf continued to report

substance-abuse problems and issues with his estranged wife.

Phaneuf saw his primary-care physician, Michael Guidi,

D.O., in February of 2010. Dr. Guidi noted Phaneuf’s

“significant emotional upset” because of the failure of his marriage and Phaneuf’s reports of obsessive-compulsive behavior,

depression, anxiety, and insomnia. Dr. Guidi prescribed

Trazodone for insomnia.

From March through May of 2010, Phaneuf continued

counseling with Dr. Boy who noted Phaneuf’s antisocial behavior

and warned Phaneuf that he would end up in jail as a result of

his anger at his estranged wife. On June 21, 2010, Phaneuf had

an appointment with Kevin DiCesare, M.D., a psychiatrist at the Center for Life Management, to get a second opinion on his

3 treatment options. Phaneuf reported his history of mental

health issues and his problems with his estranged wife. On

examination, Dr. DiCesare found that Phaneuf had good eye

contact, normal speech and movement, no significant deficits in

memory or concentration, and logical and goal-directed thought

processes. Phaneuf had fair insight and grossly intact

judgment. Dr. DiCesare diagnosed a mood disorder, not otherwise

specified, and antisocial personality traits. He assigned a GAF

score of 60.3 Dr. DiCesare continued Phaneuf’s prescriptions

for Citalopram, for depressive symptoms, and Trazodone, for

sleep, and added Depakote, for manic episodes, and Ativan, for

anxiety. He also recommended that Phaneuf begin treatment with

a psychotherapist.

In July of 2010, Phaneuf began therapy at Center for Life

Management with Alissa Dillon, a licensed mental-health

counselor. Dillon found that Phaneuf was alert and oriented,

had a depressed mood and “congruent affect,” and was difficult

to engage. Phaneuf reported sleep and anger problems related to his separation from his wife. Dillon recommended weekly

sessions to develop coping skills and identify triggers for

3 GAF is an abbreviation for global assessment of functioning and provides a means for mental health professionals “to turn raw medical signs and symptoms into a general assessment, understandable by a lay person, of an individual’s mental functioning.” Gonzalez-Rodriguez v. Barnhart,

(1st Cir. 2004); see also American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed., text rev. 2000). A GAF score of 51 to 60 represents moderate symptoms. Jones v. Astrue, No. 1:10-CV-179-JAW,

, at *3 n.4 (D. Me. Mar. 30, 2011).

4 anger issues. Dr. DiCesare provided a treatment plan for weekly

sessions with Dillon, and recorded Phaneuf’s diagnosis of mood

disorder, not otherwise specified, and a GAF score of 60.

During sessions with Dillon in August of 2010, Phaneuf had

increased symptoms of depression and reported problems with

sleep and stress about his work where coworkers had been laid

off. Dillon warned Phaneuf that he was in danger of losing his

treatment because he had missed three appointments with Dr.

DiCesare.

On December 6, 2010, Phaneuf was seen by Carrie Winn, a

licensed mental health counselor at Center for Life Management,

for a court-requested anger management evaluation. Winn found

that Phaneuf was cooperative, had good eye contact, and

maintained good attention and concentration. She found that

Phaneuf’s long-term memory was impaired but his short-term

memory was good. Testing showed no signs of anxiety or

depression but episodic occurrences at the moderately angry

level. Phaneuf requested that his medication be refilled but declined the counseling that was required for medication. Winn

noted that Phaneuf would benefit from mental-health counseling

and participation in an anger-management group.

Dr. DiCesare completed a Mental Impairment Questionnaire on

December 23, 2010. Dr. DiCesare noted that although Phaneuf

reported a stable mood, he had a history of intermittent

explosiveness, and that he could not assess the level of

impairment in Phaneuf’s daily activities. Dr. DiCesare found that Phaneuf had no evidence of a thought disorder, had impaired

5 long-term memory but intact short-term memory, had good

attention and concentration, had average intelligence, and had

poor insight and judgment. As to task performance, Dr. DiCesare

noted that Phaneuf reported no impairment and he observed none.

He diagnosed mood disorder, not otherwise specified, and

antisocial personality traits.

A state agency psychologist, Edward Martin, Ph.D., reviewed

Phaneuf’s records and completed a Psychiatric Review Technique

form on January 25, 2011. Dr. Martin found that Phaneuf had no

restrictions in daily activities, mild difficulty in maintaining

social functioning, no extended episodes of decompensation, and

no difficulties in maintaining concentration, persistence, or

pace.

Phaneuf changed therapists at Center for Life Management

and began seeing Gregory Pantazis, a licensed alcohol and drug

counselor, in March of 2011. Phaneuf said he was unhappy with

his job at a collection agency but feared that he would not find

another job if he left. Phaneuf also said that he had been having emotional issues since his divorce and that he relieved

pain with drug use. Phaneuf had a depressed mood and “congruent

affect,” was expressionless, and was difficult to engage in the

session.

In April of 2011, Pantazis reported that Phaneuf had a

positive mood and affect, was able to process highs and lows,

and was able to set goals for the next session. Phaneuf

continued to have issues with drug use and withdrawal. In June,

6 Phaneuf identified work and the lack of a romantic relationship

as the stressors in his life.

Phaneuf had appointments with Dr. DiCesare in April and

June of 2011 for management of medication, Depakote. On

examination, Phaneuf had no abnormal movements, good eye

contact, non-pressured speech, logical and goal-directed thought

processes, intact cognition, fair insight, and intact judgment.

Phaneuf’s mood was depressed. In July, Phaneuf reported that he

had lost his job because of attendance issues and that he had

had a relapse of drug use. The results of the examination were

similar to the previous results.

In July and August, Phaneuf reported to Pantazis and Dr.

DiCesare that he had been taking Suboxone which he found helpful

in maintaining sobriety. Phaneuf was having financial problems

because of unemployment. In October, Phaneuf told Dr. DiCesare

that he had lost his housing and was staying at a friend’s

apartment. Dr. DiCesare noted a worsening in Phaneuf’s mood and

told him that he needed to participate in therapy to maintain the medication services. Phaneuf requested a new therapist.

Dr. DiCesare completed a Mental Impairment Questionnaire on

October 28, 2011. He assigned a GAF score of 50, noting that

the highest score during the year was 60. Dr. DiCesare

explained that Phaneuf had had a limited response to medication,

which had caused side effects. He stated that Phaneuf had

marked restriction in activities of daily living, extreme

difficulties in maintaining social functioning, extreme difficulties in maintaining concentration, persistence, and

7 pace, and four or more episodes of decompensation, lasting at

least two weeks, during the year. Dr. DiCesare anticipated that

Phaneuf’s impairments would cause him to miss work four or more

days each month and noted Phaneuf’s history of being disruptive

and combative in the workplace.

On the same day, Dr. DiCesare completed a “Medical Opinion

Re: Ability to do Work-Related Activities (Mental)” form. He

indicated on the form that Phaneuf was seriously limited, unable

to meet competitive standards, or had no useful mental abilities

or aptitudes needed to do unskilled work. As to semi-skilled

and particular types of jobs, Dr. DiCesare checked the boxes

indicating that Phaneuf had no useful ability to do that kind of

work or, at best, was unable to meet competitive standards. He

also anticipated that Phaneuf would be absent from work more

than four days per month.

At an appointment with Dr. DiCesare in December of 2011,

Phaneuf reported that he had stopped taking Suboxone and had

relapsed to abusing drugs. Phaneuf was still challenged with depression and irritability. Dr. DiCesare found no abnormal

movements, good eye contact, normal speech, the same mood as

previously, logical and goal-directed thought processes, no

suicidal or homicidal ideation, no delusional or hallucinatory

thinking, intact cognition, fair insight, and intact judgment.

Phaneuf applied for disability insurance benefits and

supplemental security income in December of 2010. When his

application was denied, he requested a hearing that was held on

8 December 15, 2011. Phaneuf testified at the hearing, and a

vocational expert also testified.

The ALJ issued a decision on January 19, 2012, finding that

Phaneuf was not disabled. The Appeals Council denied Phaneuf’s

request for review, making the ALJ’s decision the final decision

of the Commissioner.

Discussion

In support of his motion, Phaneuf contends that the ALJ

improperly weighed the medical opinions and failed to properly

assess his credibility. Phaneuf also contends that the ALJ

erred in failing to find that his mental impairments equaled a

listed impairment and that the medical evidence does not support

the ALJ’s decision. The Acting Commissioner defends the ALJ’s

reasoning and moves to affirm the decision.

A. Medical Opinions

The ALJ attributes weight to a medical opinion based on a variety of factors including the nature of the relationship

between the medical source and the applicant, the extent to

which the opinion includes supporting information, the

consistency of the opinion with the record as a whole, the

specialization of the source, the source’s understanding of the

administrative process, and the source’s familiarity with the

applicant’s record.

(d); see also SSR 96-

9 2p,

(July 2, 1996).4 A treating medical source is

the applicant’s own physician, psychiatrist, psychologist, or

other acceptable medical source.

. A

treating source’s opinion will be given controlling weight if it

is “well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence in [the] case record.” §

404.1527(d).

Only acceptable medical sources can give medical opinions,

can be considered treating sources, and can establish the

existence of a medically determinable impairment. §§ 404.1502,

404.1513(a), & 404.15276(a)(2); see also SSR 06-3p,

, at *2 (Aug. 9, 2006)5; Taylor v. Astrue,

(D. Mass. 2012). Other care providers “may provide

insight into the severity of the impairment and how it affects

the individual’s ability to function.” SSR 06-3p,

, at *2; accord Young v. Colvin, No. 13-CV-024-SM,

, at *6 (D.N.H. Feb. 25, 2014); Noonan v. Astrue, No. 11-CV-517-JD,

, at *8 (D.N.H. Nov. 26, 2012).

“As the Commissioner’s own Social Security Ruling explains,

4 SSR 96-2p is titled Policy Interpretation Ruling Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions. 5 SSR 06-3p is titled Titles II and XVI:II and XVI: Considering Opinions and Other Evidence from Sources Who Are Not “Acceptable Medical Sources” in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies.

10 ‘[t]he evaluation of an opinion from a medical source who is not

an “acceptable medical source” depends on the particular facts

in each case. Each case must be adjudicated on its own merits

based on a consideration of the probative value of the opinions

and a weighing of all the evidence in that particular case.’”

Taylor,

(quoting SSR-06-3p, at *5).

1. Dr. DiCesare

Phaneuf contends that the ALJ erred in evaluating Dr.

DiCesare’s opinion. Phaneuf agrees with the ALJ that Dr.

DiCesare’s opinion is not entitled to controlling weight but

argues that the ALJ did not adequately explain the weight he

gave to the opinion.6 The Acting Commissioner supports the ALJ’s

evaluation.

In the decision, the ALJ noted that Dr. DiCesare found that

Phaneuf had “marked” limitations in daily living activities and

“extreme” limitations in maintaining social functioning and

maintaining concentration, persistence, or pace. The ALJ gave little weight to those opinions because they were inconsistent

with Dr. DiCesare’s treatment notes. To explain, the ALJ cited

specific treatment notes, close to the time when Dr. DiCesare

provided his opinions, when Dr. DiCesare found that Phaneuf’s 6 Because Phaneuf does not argue that Dr. DiCesare’s opinion should have been given more weight than the ALJ assigned, Phaneuf’s challenge does not appear to seek a different outcome. As such, even if the ALJ’s analysis were deficient, which it was not, any error would be harmless. See, e.g., Jackson v. Comm’r of Soc. Sec., No. 12-15036,

, at *17 (E.D. Mich. Mar. 31, 2014).

11 functioning was normal, that he was alert and oriented, and that

he had no deficits in memory or concentration. The ALJ also

reviewed Phaneuf’s GAF scores and noted that those assessments

indicated only moderate impairments or limitations.

The ALJ correctly and appropriately reviewed the medical

records and found that Dr. DiCesare’s opinions were inconsistent

with that evidence. Because of the inconsistencies, the ALJ

properly assigned little weight to those opinions.

2. Therapist Pantazis

Phaneuf argues that the ALJ improperly relied on a

selective few opinions and observations of his therapist,

Gregory Pantazis. He faults the ALJ for relying on opinions

that were generated during “the artificial and highly supportive

context of a therapy appointment.” The Acting Commissioner

contends that the ALJ correctly found that Pantazis’s opinions

were consistent with Phaneuf’s records.

Pantazis’s treatment notes show that Phaneuf’s mood varied at their meetings. Even when Phaneuf’s mood was depressed,

however, Pantazis noted that Phaneuf was alert, oriented, and

able to process the paperwork necessary for treatment. More

frequently, Pantazis noted that Phaneuf’s mood was positive and

that he was able to process highs and lows, set goals for

treatment, and seemed ready for change.

Therefore, the medical records support the ALJ’s analysis

of Pantazis’s opinions and observations. Although Pantazis is not an acceptable medical source, his opinions and observations

12 made during many treatment sessions are properly considered to

determine the nature and severity of Phaneuf’s impairments.

B. Credibility

The applicant’s credibility with regard to reports of

symptoms such as pain is assessed based on several factors: his

daily activities, functional restrictions, non-medical

treatment, medications and side-effects, precipitating and

aggravating factors, and the nature, location, onset, duration,

frequency, radiation, and intensity of the pain he reports. See

(c)(3); Avery v. Sec’y of Health & Human

Servs.,

(1st Cir. 1986); see also SSR 96-7p.7

“The credibility determination by the ALJ, who observed the

claimant, evaluated his demeanor, and considered how that

testimony fit in with the rest of the evidence, is entitled to

deference, especially when supported by specific findings.”

Frustaglia v. Sec’y of Health & Human Servs.,

(1st Cir. 1987). While the ALJ is expected to consider all of the relevant factors, he need not explicitly analyze each factor

in the decision. Wenzel v. Astrue, No. 11-CV-269-PB,

, at *7 (D.N.H. July 6, 2012).

Phaneuf criticizes the ALJ’s credibility assessment for

merely inserting boilerplate language, failing to consider

Phaneuf’s work history, and erroneously evaluating his daily

7 Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements,

(July 2, 1996).

13 activities. The ALJ found that Phaneuf’s statements about the

severity and effects of his symptoms were not credible to the

extent they were inconsistent with his ability to do a full

range of low-stress work with certain limitations as to pace and

interaction with the public, coworkers, and supervisors.

The ALJ did not rely on boilerplate but instead explained

that the record evidence and Phaneuf’s conduct and testimony at

the hearing did not support Phaneuf’s view of his impairments.

The ALJ noted that he observed Phaneuf during the hearing and

that Phaneuf was engaged, able to participate and testify

without distraction, that his testimony was clear and well

reasoned, and that Phaneuf’s conduct showed that he was able to

interact well and understand and follow instructions. Phaneuf

stated that he was unable to work because he could not control

his moods which made him disruptive and combative in the work

place, but the ALJ noted that the reports from Phaneuf’s

employers show that he was terminated because he did not work

the required amount of time, he gave false information to customers, he did not follow company policy, and did not cancel

payments when requested.

The ALJ found that Phaneuf had only mild restrictions in

daily activities, despite Phaneuf’s description of more severe

impairments. The ALJ noted that Phaneuf regularly went

shopping, performed chores around the house, took care of his

two children to some extent, and maintained his treatment

schedules, which required travel and contact with the public. Although Phaneuf disputes the extent of his activities, arguing

14 that his mother provided most of his meals, housekeeping, and

child care, the ALJ’s determination is supported by substantial

evidence.

C. Step Three

At Step Three of the sequential analysis, the ALJ must

determine whether the applicant has an impairment or a

combination of impairments that meets or medically equals the

severity of an impairment listed in 20 C.F.R. Part 404, Subpart

P. See Pfeffer v. Colvin, Civ. Action No. 12-30181-GAO,

, at *3 (D. Mass. Mar. 18, 2014). Psychological and

behavioral disorders are addressed in section 12 of 20 C.F.R.

Part 404, Subpart P, Appendix 1, which provides nine diagnostic

categories. To meet a listed impairment, the applicant must

demonstrate that he satisfies the criteria for that listing.

. When an applicant has impairments that are

not listed, he may still be found disabled at Step Three if he

can show that his impairments are at least equal in severity and duration to an analogous listing.

.

In this case, the ALJ found that Phaneuf’s mental

impairments caused mild restrictions in his activities of daily

living, marked difficulties in maintaining social functioning,

moderate difficulties in maintaining concentration, persistence,

or pace, and no episodes of decompensation. The ALJ considered

the diagnostic categories for affective disorders (§ 12.04),

anxiety-related disorders (§ 12.06), and substance-abuse disorders (§ 12.09). To meet the required level of severity for

15 those listings, an applicant must satisfy the criteria for

Paragraph A, and either the criteria of Paragraph B or the

criteria of Paragraph C. The ALJ concluded that Phaneuf did not

meet a listed impairment because he did not satisfy either

Paragraph B or Paragraph C.

Based on an apparent misunderstanding of the listing

requirements, Phaneuf argues that the ALJ erred in not finding

him disabled because he found marked limitations in maintaining

social functioning.8 Phaneuf appears to argue that contrary to

the ALJ’s finding, he satisfied the listing criteria in

Paragraph B. Simply put, one finding of marked limitations is

not enough to meet the requirements of the pertinent listings.

Paragraph B in sections 12.04, 12.06, and 12.09 (which

incorporates the criteria of other listings) requires a

condition described in Paragraph A that results in at least two

of four listed problems, which are marked restrictions or

difficulties or repeated episodes of decompensation. Although

the ALJ found marked limitations in maintaining social functioning, he found no other marked limitation or difficulty

and no episode of decompensation. As a result, Phaneuf did not

8 Although Phaneuf states that the ALJ erred in failing to assess whether his impairments “equaled” a listed impairment, he makes no developed argument aimed at equivalence. The ALJ considered three listings, and Phaneuf does not identify any other listing that would be relevant to his impairments. Therefore, Phaneuf did not sufficiently present an argument based on equivalence to permit review. See Higgins v. New Balance Athletic Shoes, Inc.,

(1st Cir. 1999).

16 meet the requirement of two Paragraph B criteria.9 See Sullivan

v. Zebley,

(1990) (“For a claimant to show

that his impairment matches a listing, it must meet all of the

specified medical criteria. An impairment that manifests only

some of those criteria, no matter how severely, does not

qualify.”)

Phaneuf also argues that the ALJ failed to consider the

combined effect of all of his impairments. He is mistaken. The

ALJ stated that he considered Phaneuf’s impairments singly and

in combination, and the ALJ’s analysis of Phaneuf’s impairments

supports that conclusion.

D. Residual Functional Capacity

A residual functional capacity assessment determines the

most a person can do in a work setting despite his limitations

caused by impairments.

(a)(1). The

Commissioner’s residual functional capacity assessment is

reviewed to determine whether it is supported by substantial evidence. Irlanda Ortiz v. Sec’y of Health & Human Servs.,

(1st Cir. 1991); Pacensa v. Astrue,

(D. Mass. 2012).

Phaneuf argues that the ALJ’s residual functional capacity

assessment is wrong because he has “a per se disabling level of

social functioning impairment.” He contends that the vocational

9 Phaneuf does not argue that he satisfied the criteria for Paragraph C.

17 expert’s testimony about the jobs Phaneuf can do, which is based

on the residual functional capacity assessment, does not provide

substantial evidence to support the ALJ’s decision.

As is explained above, the ALJ’s finding of marked

limitations in maintaining social functioning does not result in

a finding that Phaneuf is “per se” disabled. Although Phaneuf

argues a different interpretation of his record and a novel

application of the criteria for disability, the court must

follow the established regulations and standards that govern

social security benefits determinations. Because substantial

evidence supports the ALJ’s residual functional capacity

assessment and disability finding, the decision is affirmed.

Conclusion

For the reasons detailed above, the Acting Commissioner’s

motion for an order affirming her decision, document no. 15, is

granted, and Phaneuf’s motion to reverse and remand the

decision, document no. 12, is denied. The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________ Landya B. McCafferty United States District Judge

June 24, 2014

cc: Daniel McKenna, Esq. Karl E. osterhout, Esq. Robert J. Rabuck, Esq.

18