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. 2014 DNH 033 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 20 C.F.R. §§ 404.1520(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 20 C.F.R. §§
404.1505(a), 416.905(a). The Appeals Council later denied
Coppola's request for review of the ALJ's decision, see id. §§
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 42 U.S.C. § 405(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." 20 C.F.R. §§
404.1520(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, 2012 DNH 108, 8 (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, 276 F.3d 1, 5 (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, 2012 DNH
175, 25-26 (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, 2013 DNH
106, 2 (quoting 20 C.F.R. § 416.945(e)) (internal quotation marks
and alterations omitted); see also Syms v. Astrue, 2011 DNH 138,
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 id. (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, 2013 DNH 106, 2
(emphasis added); see also, e.g., 20 C.F.R. §§ 404.1523,
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, 2011 WL 6130881, 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, 2013 WL 4238315, *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 id. at
33-34 (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, 2009 WL 982798, 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, 1985 WL 3310, 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.,
211 F.3d 652, 656 (1st Cir. 2000); see, e.g., Washington v.
Astrue, No. 12-CV-1429, 2013 WL 1787180, 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 20 C.F.R. § 404, 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, 2013 WL
1787180 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[.]" 20 C.F.R. § 404, 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.
20 C.F.R. § 404, 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, 2012 DNH 109, 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 id. 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." 20 C.F.R. §§ 404.1527(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,
1996 WL 374183, 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, 1996 WL 374183, 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, 2012 DNH 105, 11
(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." 2009 DNH 174, 11 n.2. As in
15 Bergeron v. Astrue, 2009 DNH 174, 12 (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 id. 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, 2013 WL 636962, 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, 2010 WL 1236305, 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, 2012 WL 1098449 (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, 2004 WL 1529262 (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, 895 F.2d 1, 17 (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, 2013 DNH 022, 29 n.10 (Barbadoro, J.); Platon
v. Astrue, No. ll-cv-495, 2012 WL 5493620, 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, 2013 DNH
022 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 20 C.F.R. §§ 404.1527 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, 186 Fed. Appx. 19, 22 (1st Cir. 2006); see also
Alcantara v. Astrue, 257 Fed. Appx. 333, 334 (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, 742 F. Supp.
2d 1355, 1378-79 (N.D. Ga. 2010) (similar); L.B.M. ex rel. Motley
v. Astrue, No. 08-cv-1354, 2010 WL 1190326, 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, 2012 WL
4034512, 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 20
C.F.R. §§ 404.1527(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, 2012 WL 4034512
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 20 C.F.R. §§
404.1527(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. Id. §§ 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, 2012 WL 1676990, 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, 2006 WL 2329939, at *2
(S.S.A. 2006) ("only 'acceptable medical sources' can be
considered treating sources"); 20 C.F.R. §§ 404.1513(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." 20 C.F.R. §§ 404.1502, 416.902;
see Graham v. Barnhart, 2006 DNH 057, 14-15. 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), 2013 WL 621536 (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,
2014 WL 220705, 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." 20 C.F.R. §§ 404.1560(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, 214 F.3d 984, 989 (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, 2001 WL 799600, *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, 1982 WL 31386, 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, 811 F.2d 1352, 1355-56
(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, 1982 WL 31386, 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, 2012 DNH 060, 23 (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.
Id. at 24 (quoting Auger v. Astrue, 792 F. Supp. 2d 92, 95 (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." Id.
(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,
2012 DNH 060 at 27 ("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 42 U.S.C. § 405(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.