Jillian Virginia Lagasse v. Nancy Berryhill, Acting Commissioner Social Security Administration

2018 DNH 083

• Court: District Court, D. New Hampshire
• Decided: April 18, 2018
• Docket: 17-cv-212-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jillian Virginia Lagasse

v. Civil No. 17-cv-212-JD Opinion No. 2018 DNH 083 Nancy Berryhill, Acting Commissioner Social Security Administration

O R D E R

Jillian Lagasse sought judicial review, pursuant to 42

U.S.C. § 405(g), of the decision of the Acting Commissioner of

Social Security, that granted benefits for only a closed period

of disability.1 The magistrate judge issued a report and

recommendation to grant Lagasse’s motion to reverse, deny the

Acting Commissioner’s motion to affirm, and to remand the case

for an award of benefits. The Acting Commissioner filed an

objection to the report and recommendation, Lagasse did not file

a response to the objection.

Standard of Review

On referral of a dispositive motion, a magistrate judge

issues proposed findings for the disposition of the motion in a

report and recommendation. 28 U.S.C. § 636(b)(1)(B). The

parties then have an opportunity to object to the report and

1 Lagasse sought disability insurance benefits under Title II and supplemental security income under Title XVI. recommendation and to respond to an objection. Fed. R. Civ. P.

72(b)(2). The court conducts a de novo review of any part of

the report of recommendation that has been objected to and may

“accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” § 636(b)(1);

accord Fed. R. Civ. P. 72(b)(3).

Background

In April of 2013 when she was twenty-nine years old,

Lagasse was diagnosed with endocarditis, aortic valve

vegetation, severe aortic regurgitation, and pleuritic chest

pain. She received medical care for those conditions, and

psychiatric treatment because of increased anxiety and

depression. She had aortic valve replacement surgery on June

21, 2013, at Brigham and Women’s Hospital. She continued to

experience anxiety after her surgery, with panic attacks,

depression, drug use and abuse, and emergency hospitalizations.

On October 13, 2013, Lagasse underwent an urgent procedure

to remove and replace the aortic valve. During the procedure,

Lagasse suffered a brain hemorrhage (cerebrovascular accident)

that caused a loss of sensation and loss of fine motor control

on her left side. The medical records indicate that she

continued to be treated for physical and mental issues.

2 Lagasse applied for social security benefits in 2014,

alleging an onset of disability as of April 2, 2013. She

claimed disability based on the cerebrovascular accident and its

effects including left-sided weakness, endocarditis and chest

wall pain, valvular heart disease, fibromyalgia, asthma,

intermittent left hand tremors, migraine headaches, obesity,

major depressive disorder, generalized anxiety disorder,

attention deficit and hyperactivity disorder, personality

disorder, and sleep disorder. A hearing was held before an ALJ

on March 15, 2016.

The ALJ issued a decision on April 8, 2016, in which he

found that Lagasse had been disabled between April 2, 2013, and

December 8, 2015, but that the disability ended on December 9,

2015. In support, the ALJ found that Lagasse had severe

impairments from April 2, 2013, through December 8, 2015, due to

“status post cerebrovascular accident, valve defect, depression,

anxiety, a personality disorder and polysubstance abuse” and

that she could perform light work with certain limitations, but

would miss work three or four days each month. Doc. 7-2, at 19

& 22. The ALJ found that as of December 9, 2015, Lagasse had

the same severe impairments and the same residual functional

capacity except that due to medical improvement she would no

longer be absent three or four times each month. Based on that

assessment, the ALJ found that Lagasse was no longer disabled as

3 of December 9 and found a closed period of disability. When the

Appeals Council denied review, the ALJ’s decision became the

final decision of the Acting Commissioner.

Lagasse sought judicial review and moved to reverse the

decision. Lagasse argued that the ALJ erred in finding medical

improvement as of December 9, 2015, because there was no

supporting medical opinion, and the ALJ made the finding based

on his own review of medical data. Lagasse also argued that the

ALJ had misinterpreted the medical records and improperly

weighed the medical opinions, which did not show medical

improvement in December of 2015. In her motion to affirm, the

Acting Commissioner argued that substantial evidence supported

the decision. Lagasse filed a reply.

The magistrate judge found that the ALJ erred in finding

medical improvement by December 9, 2015, addressing issues not

raised by Lagasse in her motion. Specifically, the magistrate

faulted the ALJ for relying on Lagasse’s activities (rather than

medical records) earlier in 2015, during the period of

disability, to find medical improvement. The magistrate also

faulted the ALJ for relying on Lagasse’s medical records in

December and January to show medical improvement when the number

of medical visits could support an inference of continued

disability due to absenteeism. Based on the errors found, the

4 magistrate recommended that the case be reversed and remanded

for an award of benefits, rather than for further proceedings.

Discussion

In her objection to the report and recommendation, the

Acting Commissioner argues that the magistrate impermissibly

drew her own inferences from the medical evidence, contrary to

the ALJ’s inferences, to conclude that substantial evidence of

medical improvement was lacking. The Acting Commissioner also

argues that even if the decision is reversed, the case should

not be remanded for an award of benefits.

A. Medical Improvement

Once a claimant is found to be entitled to disability

benefits, the Acting Commissioner must decide whether the

disability is continuing. 20 C.F.R. § 404.1594(a).2 That

process is usually conducted in separate proceedings resulting

in separate decisions. In this case, however, the ALJ found a

period of disability, followed by improvement that resolved the

disability, which is called a closed period of disability.

2 For purposes of this case, the pertinent regulations governing disability insurance benefits at 20 C.F.R. Part 404 are the same as the pertinent regulations governing supplemental security income at 20 C.F.R. § 416, and therefore, the court will cite only Part 404 regulations. See Reagan v. Sec’y of Health & Human Servs., 877 F.2d 123, 124 (1st Cir. 1989).

5 As the magistrate judge explained in the report and

recommendation, it is unclear whether the medical improvement

standard applies in a case involving a closed period of

disability found in a single decision. See Report &

Recommendation, doc. no. 17, at 13, n.14 (citing Huse v. Colvin,

2014 WL 1125361, at *1, n.1 (D.N.H. Mar. 20, 2014)). The Acting

Commissioner and the parties have assumed that the medical

improvement standard does apply here, and the court will apply

that standard here without deciding whether it would apply in

every case of a closed period of disability.

In the process of determining whether medical improvement

has occurred that would end a period of disability, the Acting

Commissioner must decide “if there has been any medical

improvement in [the claimant’s] impairments(s) and, if so,

whether this medical improvement is related to [the claimant’s]

ability to work.” Id. Medical improvement means any decrease

in the medical severity of impairments. § 404.1594(b)(1). “[A]

determination that there has been a decrease in medical severity

must be based on improvement in the symptoms, signs, and/or

laboratory findings associated with [the] impairments.” Id.

Even if the Acting Commissioner finds that medical improvement

has occurred, she “must also show that [the claimant is]

currently able to engage in substantial gainful activity before

[she] can find that you are no longer disabled.” Id.

6 The ALJ found that from April 2, 2013, through December 8,

2015, Lagasse would be absent from work three to four days per

month because of her valve defect and replacement procedures,

the cerebrovascular accident, and treatment related to those

conditions. The ALJ also found that Lagasse’s depression,

anxiety, personality disorder, and substance abuse were severe

impairments and that she had been hospitalized twice for

episodes of decompensation during that period. The ALJ found

that Lagasse had improved by December 8, 2015, so that although

she had the same residual functional capacity to do light work

with certain limitations she no longer had the limitation of

three to four absences a month.

The ALJ explained that he found medical improvement based

on the treatment notes from Lagasse’s appointment with

Physician’s Assistant Christina Dickey on December 8, addressing

Lagasse’s insomnia issues. The ALJ also cited Lagasse’s

activities earlier in 2015 as indications of improvement and

treatment notes after December 8, generated during emergency

room visits and continued treatment for insomnia that showed

normal results on examination. The ALJ interpreted that

evidence to show that Lagasse’s status post cerebrovascular

accident and valve defect had improved as of December 8, 2015,

to the point that she would no longer be absent from work three

or four days each month. Oddly, despite his impression of

7 medical improvement, the ALJ did not find that Lagasse’s

residual functional capacity had improved with respect to

exertional level or other functional limitations, only that she

would no longer be absent from work because of her impairments.

1. Opinion Evidence

As Lagasse pointed out in her motion to reverse, there is

no medical opinion that supports the ALJ’s interpretation of the

record to show medical improvement as of December 8, 2015. Dr.

Yager did a physical evaluation of Lagasse in January of 2015

and found that while she was physically able to do sedentary

work, with limitations because of her left hand issues and

inadequate balance, but questioned her mental status for work

and thought that her condition would not improve for a year.

Dr. Lockward, Lagasse’s psychiatrist, wrote in September of 2015

that Lagasse would be absent from work more than four days each

month and that she would not be able to work for six months from

that time, when she should be reevaluated. The ALJ agreed with

Dr. Lockward’s opinion up to December 8 but gave it little

weight thereafter because “it is now clear that the claimant is

doing better.”

An ALJ may choose among various medical opinions and need

not have a “super evaluator” to provide a single opinion on the

8 issue of functional capacity.3 Evangelista v. Sec’y of Health &

Human Servs., 826 F.2d 136, 144 (1st Cir. 1987). On the other

hand, however, an ALJ must assess properly the weight to be

given to medical opinions based on a variety of factors.

§ 404.1527(c). In addition, an opinion that is based on a

review of only part of the record cannot provide substantial

evidence to support the ALJ's residual functional capacity

finding if other evidence, not reviewed, supports the claimant's

limitations. Alcantara v. Astrue, 257 Fed. Appx. 333, 334 (1st

Cir. 2007); Padilla v. Barnhart, 186 Fed. Appx. 19, 20 (1st Cir.

2006); McGowen v. Colvin, No. 15-CV-329-JD, 2016 WL 1029480, at

*6 (D.N.H. Mar. 15, 2016).

To the extent the ALJ relied on expert opinion in making

his second residual functional capacity assessment, he cited Dr.

Fairley’s opinion which was done in February of 2015 and Dr.

Martin’s opinion dated December 9, 2014. The ALJ disagreed with

Dr. Fairley’s opinion that Lagasse could do full time work from

3 To the extent the magistrate judge suggests that the standards applicable to a residual functional capacity analysis do not apply in the context of medical improvement, the court disagrees in the circumstances of this case. Here, the ALJ assessed a second residual functional capacity to support the finding that Lagasse was no longer disabled following the closed period of disability. In addition, the court disagrees that an ALJ is qualified to consider and interpret raw medical data in the process of comparing prior and current medical evidence to determine whether medical improvement has occurred. See Report & Recommendation, doc. no. 17, at 16, n.16.

9 April 2, 2013, to February of 2015, but found “Dr. Fairley’s

assessment reasonable as of December 2015.” The ALJ also gave

great weight to the opinion of the state agency psychologist,

Dr. Martin, a year before the date when the ALJ found medical

improvement and does not address absenteeism.

Neither Dr. Fairley nor Dr. Martin reviewed the medical

records pertinent to medical improvement as of December 9, 2015.

As a result, neither provided an opinion about Lagasse’s

functional capacity in December of 2015. A considerable number

of medical records were generated after both of those opinions,

which included Dr. Lockward’s opinion about Lagasse’s

absenteeism. None of the opinion evidence supports the ALJ’s

finding that Lagasse’s absenteeism ended on December 8, 2015.

The ALJ did not explain why the subsequent medical evidence,

after Dr. Fairley and Dr. Martin provided their opinions, was

not material. See Giandomenico v. Social Security Admin., 2017

WL 5484657, at *4 (D.N.H. Nov. 15, 2017).

2. Medical Records

Instead of opinion evidence, the ALJ relied primarily on

treatment notes in December of 2015 and January of 2016 to find

that Lagasse had improved so that absenteeism would no longer be

a functional limitation. The December 8 appointment, however,

was for treatment of insomnia. That examination did not include

10 a focus on Lagasse’s valve defect or her cerebrovascular

accident nor did the note say whether or not Lagasse would

likely be absent from work due to insomnia or for any other

reason.

The treatment notes also show that Lagasse made repeated

trips to the emergency room over the next month. Those

incidents document that she experienced chest wall pain and

other symptoms that were severe enough to make her seek

treatment, even if the physical examinations provided some

normal results. The hospital treatment notes also do not

address absenteeism or functional capacity.

The ALJ interpreted some normal findings in the treatment

notes to mean that Lagasse’s functional capacity had improved to

the extent that she would no longer be absent three or four

times each month. To the extent the examination notes show good

or normal results, the decision does not explain the ALJ’s

ability to translate those results into a finding of medical

improvement and a lack of continuing absenteeism.4 Given the

4 The parts of the treatment notes that the ALJ cites were made by providers based on physical examinations. The notes are medical findings and not raw medical data, such as x-rays, MRI results, laboratory test reports. See Piper v. Berryhill, 2018 WL 1392908, at *2 (D.N.H. Mar. 20, 2018). Nevertheless, the notes did not provide functional findings, and the ALJ’s interpretation of those notes to show functional improvement so that Lagasse would no longer require absences from work required medical knowledge of Lagasse’s underlying complex medical issues, the treatment she had undergone, and her then current

11 complexity of Lagasse’s physical impairments, medical

improvement is a conclusion that is beyond the ALJ’s ability as

a lay person and does not involve a common sense judgment about

functional capacity. See Nguyen v. Chater, 172 F.3d 31, 25 (1st

Cir. 1999); Manso-Pizarro v. Sec’y of Health & Human Servs., 76

F.3d 15, 17 (1st Cir. 1996).

In addition to her physical impairments, the ALJ also found

severe impairments due to depression, anxiety, personality

disorder, and substance abuse. As the ALJ found, Lagasse

experienced episodes of decomposition during the closed period

because of substance abuse and suicidal ideation. The ALJ’s

reference to examinations in August of 2015 that showed some

normal results and that Lagasse was alert during her December

appointment for insomnia adds little to support for a finding of

improved functional capacity. The ALJ also discussed Lagasse’s

substance abuse and drug-seeking behavior. Lagasse’s

significant mental impairments further undermine the inferences

the ALJ took from the normal physical findings that he

highlights from the treatment notes.

Therefore, substantial evidence is lacking to support the

ALJ’s second residual functional capacity assessment in which he

medical condition that is beyond the understanding of a lay person.

12 found that Lagasse had medically improved as of December 8,

2015, and was no longer disabled.

B. Remand for an Award of Benefits

The magistrate judge recommends that the case be remanded

for an award of benefits, based on the conclusion in Attmore v.

Colvin, 827 F.3d 872 (9th Cir. 2016).5 The Acting Commissioner

objects to that result.

In Attmore, the Ninth Circuit determined that the ALJ erred

in finding that the claimant had medically improved. Id. at

879. The court reversed the judgment of the district court and

directed the court to remand the case to the ALJ “for the

calculation and award of benefits.” Id. The court provided no

analysis or explanation as to why an award of benefits was the

appropriate result in that case.

In the First Circuit, a direction to the Acting

Commissioner to award benefits is rarely appropriate.

“[O]rdinarily[,] the court can order the agency to provide the

relief it denied only in the unusual case in which the

underlying facts and law are such that the agency has no

In her motion to reverse the decision of the Acting 5

Commissioner, Lagasse asked that she be awarded benefits or that the case be remanded for further hearing but did not provide any argument in support of an order to award benefits. Ordinarily, the court disregards issues raised without developed argument in support. Coons v. Indus. Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010).

13 discretion to act in any manner other than to award or to deny

benefits.” Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001).

A court may order the agency to award benefits only “where the

proof of disability is overwhelming or where the proof is very

strong and there is no contrary evidence.” Id. Otherwise,

“when the agency has not considered all relevant factors in

taking action, or has provided insufficient explanation for its

action, the reviewing court ordinarily should remand the case to

the agency.” Id.

This case does not present extraordinary circumstances that

would support a remand for an award of benefits. Instead,

remand is necessary for further proceedings because the ALJ did

not show that substantial evidence existed to support his

functional capacity assessment as of December 9, 2015, and

provided an insufficient explanation for finding medical

improvement. On remand, the ALJ may find it necessary to have

medical opinion evidence to address Lagasse’s functional

capacity as of December 8, 2015, and thereafter.

Conclusion

For the foregoing reasons, the report and recommendation

(document no. 17) is rejected.

14 The decision of the Acting Commissioner is reversed for the

reasons provided in this order, and the case is remanded

pursuant to Sentence Four of § 405(g) for further proceedings.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

April 18, 2018

cc: Janine Gawryl, Esq. Robert J. Rabuck, Esq.