UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey Phaneuf
v. Civil No. 13-cv-139-LM Opinion No. 2014 DNH 145 Carolyn W. Colvin, Acting Commissioner Social Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(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.” 20 C.F.R. §§ 404.1505(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, 274 F.3d 606, 608 (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, 276 F.3d 1, 5 (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,
172 F.3d 31, 35 (1st Cir. 1999); accord Seavey, 276 F.3d at 9.
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., 620 F.3d 62, 66 (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., 795 F.2d 1118, 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, 111 F. App’x 23, 25 (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, 2011 WL 1253891, 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.
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. 20 C.F.R. § 404.1527(d); see also SSR 96-
9 2p, 1996 WL 374188 (July 2, 1996).4 A treating medical source is
the applicant’s own physician, psychiatrist, psychologist, or
other acceptable medical source. 20 C.F.R. § 404.1502. 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, 2006 WL
2329939, at *2 (Aug. 9, 2006)5; Taylor v. Astrue, 899 F. Supp. 2d
83, 88 (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, 2006 WL
2329939, at *2; accord Young v. Colvin, No. 13-CV-024-SM, 2014
WL 711012, at *6 (D.N.H. Feb. 25, 2014); Noonan v. Astrue, No. 11-CV-517-JD, 2012 WL 5905000, 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, 899 F. Supp. 2d at 88 (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, 2014 WL 1304913, 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
20 C.F.R. § 404.1529(c)(3); Avery v. Sec’y of Health & Human
Servs., 797 F.2d 19, 29 (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., 829 F.2d 192, 195
(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, 2012 WL
2679456, 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, 1996 WL 374186 (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, 2014 WL
1051197, 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. 20
C.F.R. § 404.1525. 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. 20 C.F.R. § 404.1526.
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., 194 F.3d 252, 260 (1st Cir. 1999).
16 meet the requirement of two Paragraph B criteria.9 See Sullivan
v. Zebley, 493 U.S. 521, 530 (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. 20 C.F.R. § 404.1545(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., 955
F.2d 765, 769 (1st Cir. 1991); Pacensa v. Astrue, 848 F. Supp.
2d 80, 87 (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.