UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Megan Stacey Larocque

v. Civil No. 14-cv-230-JL Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Megan Stacey Larocque has appealed the Social Security

Administration’s (“SSA”) denial of her application for a period

of disability and disability insurance benefits. An

administrative law judge at the SSA (“ALJ”) ruled that, despite

Larocque’s severe impairments (bipolar disorder and anxiety

disorder), she retains the residual functional capacity (“RFC”)

to perform a full range of work at all exertional levels with

specified nonexertional limitations, allowing her to perform jobs

that exist in the national economy in significant numbers and, as

a result, is not disabled. See

(a). The

Appeals Council later denied Larocque’s request for review, see

§ 404.968(a), with the result that the ALJ’s decision became

the final decision on Larocque’s application, see id. § 404.981.

Larocque then appealed the decision to this court, which has

jurisdiction under

(g) (Social Security). Larocque has moved to reverse the decision, see L.R. 9.1(b),

challenging it as unsupported by substantial evidence. Among

other things, Larocque argues that the ALJ failed to properly

evaluate the medical opinion evidence bearing on her RFC

determination. The Acting Commissioner of the SSA has cross-

moved for an order affirming the ALJ’s decision, see L.R. 9.1(e),

defending the ALJ’s handling of the opinion evidence. After

careful consideration, the court agrees with Larocque that the

ALJ erred in evaluating the opinion evidence and therefore grants

Larocque’s motion to reverse (and denies the Acting

Commissioner’s motion to affirm) the ALJ’s decision.

The ALJ found that Larocque retained the RFC to perform a

full range of work with a few nonexertional limitations,

including that she (1) “must avoid concentrated exposure to

hazards such as moving machinery and unprotected heights,” (2) is

“limited to simple, routine tasks in a work environment free of

fast-paced production requirements, involving only simple, work-

related decisions with few, if any, work place changes,” and (3)

“would be limited to only occasional interaction with the

public.” Admin. R. at 101. In evaluating Larocque’s RFC, the

ALJ had six medical opinions at her disposal: those of

Larocque’s “treating providers,” Dr. Maria Gaticales, Ms. Melinda

2 Rhinelander, LCSW, and Ms. Teresa Brugman, APRN1; that of a

consultative examiner, Dr. William Freeman; and those of the

state agency psychological consultants, Drs. Michael Maliszewski

and Aryeh Shestopal.

As the ALJ acknowledged, each of the Arbour professionals

and Dr. Freeman described significant limitations on Larocque’s

ability to work. In spite of the consistency among these four

opinions, the ALJ afforded “little weight” to all of them

because, she explained, they were inconsistent with the record as

a whole, poorly or not supported by objective medical evidence,

and contradicted by or not reflective of the improvements that

the ALJ found Larocque experienced beginning in late 2011. The

ALJ then afforded “some weight” to the opinions of agency

psychological consultants Drs. Maliszewski and Shestopal, neither

1 Dr. Gaticales, Ms. Rhinelander, and Ms. Brugman are all associated with Arbour Counseling Services, where Larocque received treatment. Ms. Rhinelander, Larocque’s therapist, completed a Psychiatric/Psychological Impairment Questionnaire form on June 2, 2011. Dr. Gaticales, a psychologist, reviewed Larocque’s file and completed a Psychiatric/Psychological Impairment Questionnaire form on May 11, 2012. Ms. Brugman, a registered nurse who manages Larocque’s prescriptions, completed a Psychiatric/Psychological Impairment Questionnaire form on June 27, 2012. Ms. Rhinelander and Ms. Brugman also submitted letters setting out their opinions concerning Larocque’s limitations on August 2, 2011 and July 10, 2012. The ALJ referred to Dr. Gaticales, Ms. Rhinelander, and Ms. Brugman, collectively, as Larocque’s “treating providers.” Admin R. at 104. For convenience and clarity, the court will refer to them as the “Arbour professionals.”

3 of whom examined Larocque and whose opinions the ALJ recognized

as also inconsistent with the record.

Larocque argues that the ALJ erred by giving more weight to

the opinions of the non-examining consultants than to the

opinions of the Arbour professionals and Dr. Freeman. The ALJ is

required to consider medical opinions along with the rest of the

evidence in the record.

(b). The ALJ weighs

the medical opinions “based on the nature of the medical source's

relationship with the claimant, the consistency of the opinion

with the other record evidence, the medical source's specialty,

and other factors that may be brought to the ALJ's attention.”

Grant v. Colvin,

(citing

(c)). The ALJ generally gives more weight to the

opinion of a source who examined the claimant, and may give

controlling weight to the claimant’s treating source.

(c). The ALJ resolves conflicts between conflicting

medical opinions, and the ALJ’s decision to resolve those

conflicts against the claimant must be upheld if “that conclusion

has substantial support in the record.” Tremblay v. Sec’y of

HHS,

(1st Cir. 1982). Substantial evidence is

that which a “reasonable mind, reviewing the evidence in the

record as a whole, could accept . . . as adequate to support

[the] conclusion.” Ortiz v. Sec’y of HHS,

(1st

4 Cir. 1991) (quoting Rodriguez v. Sec'y of HHS,

(1st Cir. 1981)). Because the ALJ’s decision to give “little

weight” to the opinions of the Arbour professionals and Dr.

Freeman but “some weight” to the non-examining consultants is not

supported by substantial evidence, the court agrees with

Larocque.

Dr. Gaticales, Ms. Rhinelander, and Ms. Brugman

The Arbour officials consistently opined that Larocque’s

bipolar disorder presented significant barriers to her

employment. Dr. Gaticales and Ms. Rhinelander opined that

Larocque experienced “marked limitations in performing activities

within a schedule, maintaining regular attendance, working in

coordination with or proximity to others without being distracted

by them, completing a normal workday or workweek without

interruptions from psychologically based symptoms, accepting

instruction and responding appropriately to supervisors, and

responding appropriately to changes in the work setting.” Admin.

R. at 104. Ms. Brugman opined that Larocque had “marked

limitations in understanding, remembering and carrying out

detailed instructions, and in accepting instructions and

appropriately responding to supervisors.” Admin. R. at 104. Ms.

Rhinelander and Ms. Brugman further opined that the dramatic mood

shifts associated with Larocque’s bipolar disorder made it

5 difficult for her to function at a consistent level for any

period of time and caused confrontations and difficulties with

her superiors and problems with concentration, ultimately

concluding that Larocque’s bipolar disorder would “continue to

present significant barriers for her in an employment situation.”

Admin. R. at 506, 600.

The ALJ afforded “less weight” to the opinions of the Arbour

professionals upon finding that their opinions were “inconsistent

with the record as a whole and not well supported by the weight

of the objective evidence.” Admin. R. at 104. The only

explanation the ALJ gives for this conclusion is that “treatment

notes from late 2011 until the present show a much higher degree

of functioning with much less symptomology.”2 Admin. R. at 104.

While the ALJ is responsible for resolving conflicting evidence

and drawing inferences from the record, see Rodriguez,

, the ALJ’s findings are not conclusive when they are

“derived by ignoring evidence, misapplying the law, or judging

2 The ALJ has provided no other rationale for her conclusions that these opinions are “inconsistent with the record as a whole and not well supported by the weight of the objective evidence.” Admin. R. at 104. If by this ALJ refers to some other deficiency or inconsistency between the opinions and the record, the ALJ has run afoul of the requirement that the ALJ “clearly explain the evidentiary basis of her RFC assessment.” Hynes v. Barnhart,

, 8. Without such an explanation, the court cannot ascertain whether the ALJ’s conclusions are supported by substantial evidence in the record. See Laplume v. Astrue,

.

6 matters entrusted to experts.” Nguyen v. Chater,

(1st Cir. 1999). The ALJ discounted the opinions of the Arbour

professionals because she determined that Larocque began to show

signs of improvement in late 2011. In doing so, the ALJ both

ignored evidence and judged matters entrusted to experts.

First, as Larocque points out, the same physician’s notes

that the ALJ relied on for this conclusion also indicate that

Larocque reported increased depression, feelings of isolation and

frustration, passive/avoidant behavior, anxiety, and suicidal

ideation between February and September 2012. See Admin. R. at

603, 606, 607, 618, 620, 621. While it is for the ALJ to assess

the facts, the ALJ is “not at liberty to ignore medical

evidence.” Nguyen,

. Here, the ALJ appears to

have picked and chosen only the facts that supported her

conclusion that Larocque’s condition improved beginning in late

2011 without explaining--or, so far as the court can tell--

considering the contrary evidence in reports from the same time

period, including those self-same reports. This is particularly

problematic in the context of bipolar disorder, which is

recognized as causing good days and bad days, or good periods and

bad periods. See Bauer v. Astrue,

(7th Cir.

2008); Matta v. Astrue,

(2d Cir. 2013).

7 This error is compounded by the fact that none of the

medical opinions reviewed by the ALJ conclude that Larocque’s

condition improved. To the contrary, the only opinions drafted

after this alleged period of improvement began--those of Dr.

Gaticales in May 2012 and Ms. Brugman in June 2012--concluded

that Larocque’s impairments were “ongoing, creating an

expectation . . . that they will last at least twelve months.”

Admin. R. at 502, 590, 598. Ms. Rhinelander and Ms. Brugman

further explained in July 2012 that Larocque continued to

experience “intense, severe mood swings” which make it

“challenging for her to function at a stable, consistent level

for any period of time.” Admin R. at 600. In making an

independent determination that Larocque’s condition improved

beginning in late 2011--a determination contrary to all of the

medical opinions concerning that time period--the ALJ

impermissibly “substituted [her] own judgment for medical

opinion.” Alcantara,

(1st Cir. 2007)

(unpublished).

Larocque further argues that the ALJ erred by failing to

give Dr. Gaticales’s opinion controlling weight as the opinion of

a treating source, or by providing “good reasons” for not

affording it that controlling weight as required by

(c)(2). The Acting Commissioner argues, on the other

8 hand, that Dr. Gaticales’s opinion is not entitled to controlling

weight because Dr. Gaticales is not, in fact, a treating source--

Dr. Gaticales never examined Larocque, and the record contains no

evidence of an “ongoing treatment relationship” between Larocque

and Dr. Gaticales. See

(“Treating source

means your own physician, psychologist, or other acceptable

medical source who provides you, or has provided you, with

medical treatment or evaluation and who has, or has had, an

ongoing treatment relationship with you.”). While the ALJ

appears to have erroneously called Dr. Gaticales a “treating

provider,”3 the court need not definitively resolve question of

her status here. Even considering Dr. Gaticales as a non-

treating source, as explained supra, the ALJ’s decision to give

her opinion “little weight” is simply not supported by

substantial evidence.

3 Larocque also argues that, even if Dr. Gaticales is not herself a treating source, she should be treated as such as part of Larocque’s treatment team. However, the cases from the Courts of Appeal for the Eighth and Ninth Circuits that Larocque relies on for this proposition are inapposite here. In each of those cases, the physician considered part of the treatment team had evaluated the patient at least once and had ongoing responsibilities as part of that team of healthcare providers. See Shontos v. Barnhart,

(8th Cir. 2003); Benton ex rel. Benton v. Barnhart,

(9th Cir. 2003). Here, there is no evidence that Dr. Gaticales evaluated Larocque at all, or did more than review the treatment notes of Ms. Rhinelander and Ms. Burman before rendering her opinion.

9 As the Acting Commissioner also points out, the opinions of

Ms. Rhinelander and Ms. Brugman, as Larocque’s therapist and the

registered nurse who managed her prescriptions, are not

“acceptable medical sources.” See

(a);

Social Security Ruling (“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). They are, however, “other medical

sources” whose opinions cannot be used to establish disability

but can--as they are here--be used to “show the severity of [the

claimant’s] impairment(s) and how it affects [the claimant’s]

ability to work.”

(d). The ALJ should

therefore “explain the weight given to opinions from these ‘other

sources,’ or otherwise ensure that the discussion of the evidence

in the determination or decision allows a claimant or subsequent

reviewer to follow the adjudicator’s reasoning, when such

opinions may have an effect on the outcome of the case.” SSR 06-

03p,

, at *6. The ALJ may use the factors set out

in

(d) to evaluate the medical opinions from

“other medical sources.” Id. at *4.

While the Acting Commissioner is correct that the ALJ need

not explicitly take account of all of the factors articulated in

(c) in determining what weight to give to a

10 medical opinion or an opinion from an “other medical source,” the

court must at the least be able to discern the rationale the ALJ

used to reach her determination, and that rationale must be

supported by substantial record evidence. Here, the rationale

provided by the ALJ for discounting the opinions of the Arbour

professionals is not supported by substantial record evidence.

Dr. Freeman

Larocque further argues that the ALJ erred by giving “little

weight” to the opinion of Dr. Freeman, the Administration’s own

examining psychologist, who examined Larocque in January 2011 and

concluded that it was “doubtful that [Larocque] would be able to

effectively handle the duties and responsibilities in a work

setting” because “she would become overwhelmed and would be

unable to function on a job.” Admin. R. at 479.

The ALJ gave Dr. Freeman’s opinion little weight after

concluding that, like those of the Arbour professionals, it was

“inconsistent with the record as a whole and poorly supported by

the objective medical evidence.” Admin. R. at 103. But, as with

the Arbour professionals, the ALJ failed to provide any

supporting rationale for this conclusion, merely “not[ing] that

this opinion was made in January 2011, right around the time the

claimant began to see an improvement in her condition, and thus

11 does not appropriately reflect the gains the claimant made in

therapy over time.” Admin. R. at 103.

The opinions of examining sources are typically given

greater weight than non-examining sources. See Alcantara, 257 F.

App’x. at 334 (examining opinions merit more prima facie

credibility than non-examining sources). Whether the source of

the medical opinion has examined the claimant is particularly

relevant where mental illness is at issue. See Westphal v.

Eastman Kodak Co., No. 05–6120,

, at *5 (W.D.N.Y.

June 21, 2006) (“[I]n the context of a psychiatric evaluation, an

opinion based on personal examination is inherently more reliable

than an opinion based on a cold record because observation of the

patient is critical to understanding the subjective nature of the

patient's disease and in making a reasoned diagnosis.”). Except

for the ALJ’s own opinion, no later medical opinion suggests that

Larocque’s condition improved after January 2011. For the same

reasons that the ALJ erred in giving little weight to the Arbour

professionals, as explained supra, so the ALJ erred in giving

less weight to the opinion of the Administration’s examining

psychologist than to the non-examining sources.

Drs. Maliszewski and Shestopal

The Acting Commissioner argues that the ALJ correctly gave

“some weight” to the agency reviewing physicians, Drs.

12 Maliszewski and Shestapol. Larocque contends that the ALJ erred

by giving the opinions of these non-examining physicians more

weight than those of the Arbour professionals and Dr. Freeman.

The court agrees with Larocque.

As this court has observed, an ALJ can rely “on the

assessments of non-testifying, non-examining physicians” in

adjudicating a claimant’s RFC, and conflicts between those

assessments and other medical testimony “are for the ALJ to

resolve.” Morin v. Astrue,

(citing Tremblay,

). In fact, the ALJ is “required to consider the

opinions of state agency psychological consultants about the

nature and severity of an applicant’s impairments because state

agency consultants ‘are experts in the Social Security disability

programs.’” Grant,

, at *3 (quoting SSR 96-6p,

Titles II and XVI: Consideration of Administrative Findings of

Fact by State Agency Medical and Psychological Consultants and

Other Program Physicians,

, at *2 (S.S.A. 1996)).

However, a decision to resolve conflicts between assessments

against the claimant should only be affirmed when “that

conclusion has substantial support in the record.” Morin,

(internal quotations omitted). The ALJ’s assignment

of “some weight” to these opinions is not supported by

substantial evidence in the record.

13 Dr. Maliszewski, who prepared his opinion in July 2011,

opined that Larocque had “moderate limitations in activities of

daily living, moderate difficulties in maintaining social

functioning, and marked difficulties in maintaining

concentration, persistence and pace.” Admin. R. at 104. The ALJ

concluded that “the record does not show support for such

significant limitations,” but recognized “that the claimant

experiences legitimate limitations in social functioning and

concentration, persistence and pace,” and so gave Dr.

Maliszewski’s opinion “some weight.” Admin. R. at 104-105. The

ALJ provided no explanation for either of these conclusions.

Indeed, by this point, the ALJ had already discounted the

opinions of the Arbour professionals and Dr. Freeman as not

supported by the record or objective evidence. Without further

explanation, it is difficult to understand on what basis the ALJ

determined that Larocque experienced “legitimate limitations in

social functioning, and concentration, persistence and pace” but

not the “significant limitations” that Dr. Maliszewski observed.

The ALJ’s treatment of Dr. Shestapol’s opinion is similarly

unenlightening. In February 2011, Dr. Shestopal opined that

Larocque’s impairments were “severe but not expected to last 12

months.” Admin. R. at 105. The ALJ concluded that Dr.

Shestopal’s opinion was “consistent with the record to the extent

14 that the claimant’s mental impairments are severe,” but that

“there is ample evidence in the file to conclude that these

impairments would last more than 12 months.”4 Admin. R. at 105.

Given the ALJ’s conclusion that Dr. Shestopal’s opinion was

clearly inconsistent with the record, the ALJ’s decision to give

more weight to a non-examining source than an examining source is

in error.

Conclusion

The court is left to conclude that the ALJ determined, based

on selective evidence and without benefit of any medical opinion

to that effect, that Larocque’s condition began to improve in

late 2011. On this basis, the ALJ discounted the medical opinion

evidence of every examining source and gave greater weight to

both his own unsupported conclusion and the opinions of non-

examining agency consultants despite also finding those opinions

unsupported by the record. By doing so, the ALJ “effectively

substituted his own judgment for medical opinion.” Alcantara,

. This was error, for an ALJ “cannot assess

the claimant’s RFC himself . . . .” Levesque v. Colvin, 2014

4 This conclusion is inconsistent with the ALJ’s finding that Larocque’s condition began to improve within 12 months of Dr. Shestopal’s opinion. See Admin R. at 103-04. As discussed supra, the ALJ discounted the opinions of the examining sources on that basis.

, at 2-3. Therefore, the court is constrained to reverse

the ALJ’s decision and remand this case to the SSA for further

consideration.5

For the foregoing reasons, Larocque’s motion to reverse the

SSA’s decision6 is GRANTED, and the Acting Commissioner’s motion

to affirm it7 is DENIED. See

(g). The clerk

shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: May 14, 2015

cc: Eddy Pierre Pierre, Esq. Brenda M. Golden Hallisey, Esq. Robert J. Rabuck, Esq.

5 Larocque also argues that the ALJ erred by failing to properly evaluate Larocque’s credibility and that the Appeals Council erred by declining to consider a retrospective opinion that was not before the ALJ during initial review. The court need not reach these arguments because the ALJ’s error in weighing the opinion evidence necessitates reversal and remand in and of itself. 6 Document no. 9. 7 Document no. 11.

16