Martinage v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Paul Joseph Martinage
v. Case No. 16-cv-245-PB
Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration
REPORT AND RECOMMENDATION
Pursuant to 42 U.S.C. § 405(g), Paul Martinage moves to
reverse the Acting Commissioner’s decision to deny his
applications for Social Security disability insurance benefits,
(“DIB”), under Title II of the Social Security Act, 42 U.S.C. §
423, and for supplemental security income, (“SSI”), under Title
XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves
for an order affirming her decision. For the reasons that
follow, this matter should be remanded to the Acting
Commissioner for further proceedings consistent with this report
and recommendation.
I. Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
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The [district] court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
. . . .
42 U.S.C. § 405(g) (setting out the standard of review for DIB
decisions); see also 42 U.S.C. § 1383(c)(3) (establishing §
405(g) as the standard of review for SSI decisions). However,
the court “must uphold a denial of social security . . .
benefits unless ‘the [acting Commissioner] has committed a legal
or factual error in evaluating a particular claim.’” Manso-
Pizarro v. Sec’y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per
curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
As for the statutory requirement that the acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.” Alexandrou v. Sullivan, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial
evidence is ‘more than [a] mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Currier v. Sec’y of HEW, 612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402
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U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the
[acting Commissioner] to determine issues of credibility and to
draw inferences from the record evidence. Indeed, the
resolution of conflicts in the evidence is for the [acting
Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations
omitted). Moreover, the court “must uphold the [acting
Commissioner’s] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.” Tsarelka v. Sec’y of HHS, 842 F.2d 529,
535 (1st Cir. 1988) (per curiam). Finally, when determining
whether a decision of the acting Commissioner is supported by
substantial evidence, the court must “review[] the evidence in
the record as a whole.” Irlanda Ortiz, 955 F.2d at 769 (quoting
Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
II. Background
The parties have submitted a Joint Statement of Material
Facts. That statement, document no. 16, is part of the court’s
record and will be summarized here, rather than repeated in
full.
At the time of the decision from which he appeals,
Martinage was 25 years old. He has had some short-term and
part-time employment, but he has never engaged in substantial
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gainful work activity.
When he was about nine years old, Martinage was diagnosed
with juvenile diabetes. His treatment has included medication
and counseling, but he has a long history of noncompliance with
directives to monitor his blood sugar, take his diabetes
medication, and eat properly. Because of his diabetes and/or
his failure to engage in self care, Martinage has been admitted
to: (1) St. Joseph’s Hospital, in October of 2007, for diabetic
ketoacidosis;1 (2) Children’s Hospital, in January 2008, for
ketoacidosis; (3) Parkland Medical Center (“PMC”), in February
2010, for uncontrolled diabetes and chest pain; (4) Southern New
Hampshire Medical Center (“SNHMC”), in May 2010, for
ketoacidosis; (5) PMC, in January 2011, for uncontrolled
diabetes;2 (6) SNHMC, in April 2013, for ketoacidosis; and (7)
SNHMC, in November 2013, for ketoacidosis. The record also
documents several other hospital visits for ketoacidosis that
did not result in admissions and one or more occasions on which
a medical professional told Martinage to go to the hospital, but
1 Diabetic ketoacidosis is a “buildup of ketones in blood
due to breakdown of stored fats for energy; a complication of
diabetes mellitus.” Stedman’s Medical Dictionary 1027 (28th ed.
2006). Stedman’s further explains that “[u]ntreated, [diabetic
ketoacidosis] can lead to coma and death.” Id.
2 Rather than being properly discharged, Martinage left the
hospital against medical advice. See Administrative Transcript
1177.
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he refused to do so. See Tr. 1147.
Martinage has also been diagnosed with major depressive
disorder, attention deficit hyperactivity disorder (“ADHD”),
oppositional defiant disorder, adjustment disorder, bipolar
disorder, borderline personality disorder, anxiety disorder,
obsessive-compulsive disorder, marijuana dependence, and alcohol
dependence. His mental impairments have been treated with both
medication and counseling. Those impairments have also resulted
in admissions to: (1) New Hampshire Hospital, in April 2006, for
suicidal ideation, self-abusive behavior, and aggression; and
(2) SNHMC, in May 2013, for severe depression and suicidal
ideation. Beyond his hospitalizations, Martinage has a history
of treatment at the Greater Nashua Mental Health Center
(“GNMHC”), going back at least as far as 2006. His treatment
has included both medication and counseling.
In April 2006, GNHMC initiated Martinage’s involuntary
admission to New Hampshire Hospital. In November 2008, after an
apparent hiatus in treatment, Martinage was seen by Dr.
Lancaster and Dr. Christopher Benton at GNHMC for an intake
evaluation. He was discharged in June 2009 when he moved out of
the area.
In August of 2009, Martinage returned to GNHMC and received
a reopening evaluation that was documented on a form signed by
Linda Stakun, a licensed mental health counselor, and Dr.
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Benton. In February 2010, Dr. Benton performed a psychiatric
evaluation in which he reported the following history:
[Martinage] states he has low energy, low motivation,
difficulty organizing tasks, [and] tends to lose
things. . . . Poor memory. Difficulty as an adult
keeping track of things and reported difficulty
processing. He requires a great deal of structure to
be effective. He has lost numerous jobs. If the
shift changed to different times he has difficulty
adjusting and adapting to the requirements. . . . He
seems to get lost. He has difficulty with directions.
Also has episodes where he gets “pretty pissed, pretty
quickly” and irritable toward others.
Administrative Transcript (hereinafter “Tr.”) 1615. Based upon
a mental status exam, Dr. Benton reported that Martinage had
“[d]ifficulty in maintaining attention.” Tr. 1616. Under the
heading “Summary & Assessment,” Dr. Benton wrote: “20-year-old
gentleman who has had multiple jobs and inability to work
independently and to organize events in his life without a great
deal of structure.” Tr. 1617. Dr. Benton saw Martinage in
March, April, and June of 2010. In October of 2010, Martinage
was discharged from GNHMC for losing contact with the agency.
He returned to GNHMC in September of 2012, when an intake
evaluation was performed by Stakun. In October of 2012, nurse
Carol Drouin performed a psychiatric evaluation in which she
reported that, among other things, Martinage was seeing Stakun
every two weeks. She also reported the following social
history: “He is frequently terminated from jobs for his attitude
or conflict with either co-workers or his boss.” Tr. 1612. In
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April of 2013, Martinage was discharged after he lost contact
with GNMHC.
In May of 2013, Martinage reinitiated treatment at GNHMC,
and Drouin completed another psychiatric evaluation. She noted
that Martinage was suicidal, and referred him to SNHMC. He was
admitted to SNHMC that same day, “for safety stabilization and
treatment,” Tr. 1365, and remained hospitalized for two days.
In a Psychiatric Discharge Summary, Dr. Christopher Duros noted
that Martinage “has difficulty keeping jobs due to problems with
authority [and] getting into interpersonal conflicts with his
supervisors and co-workers.” Tr. 1366. After his discharge,
Martinage saw nurse Drouin twice more during the month of May.
In July of 2013, “[n]urse Drouin and Dr. Benton of the
[GNHMC] completed a Mental Impairment Questionnaire [on
Martinage].” Jt. Statement, doc. no. 16 at 28. In it, they
identified the following diagnoses: bipolar disorder, anxiety
disorder, ADHD, borderline personality disorder, and cannabis
dependence. In response to a question about the relationship
between Martinage’s psychiatric condition(s) and his physical
symptoms, they wrote:
Depression sometimes makes self care difficult,
i.e., stays in bed, not getting dressed and not taking
medications as prescribed. Diabetes not well
controlled.
Tr. 1463. In the section of the form devoted to functional
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limitations, they indicated that claimant: (1) was limited most
of the time on a sustained basis in three areas (tolerating
stresses common to a work setting, interacting appropriately
with the general public without exhibiting behavioral extremes,
and adapting or responding appropriately to changes in a work
setting); (2) was limited more than a third of the time in eight
areas;3 and (3) was limited but still functioned satisfactorily
in three areas. They identified no area in which he had only
mild limitations or had no limitations at all. As a basis for
the limitations they found, Drouin and Dr. Benton indicated that
Martinage exhibited 22 different signs and symptoms.
They further opined that Martinage would decompensate four
or more times during a 12-month period for at least two weeks at
a time. They described his decompensation this way:
Multiple episodes including hospitalization in May
2013 for suicidal ideation with thoughts of overdosing
on insulin or medications. Reports increase in anger
over last month.
Tr. 1466. They also indicated that as a result of Martinage’s
impairments or treatment for them, he would be absent from work
3 Those eight areas are: (1) completing activities of daily
living; (2) maintaining social functioning and communicating
appropriately with others; (3) concentration; (4) task
completion; (5) maintaining attendance and a schedule; (6)
accepting instructions and responding appropriately to criticism
from others; (7) working in coordination with or proximity to
others without being unduly distracted; and (8) completing a
normal work day and workweek without interruptions from
psychologically based symptoms.
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more than four days per month. Finally, when asked to describe
any additional reasons why Martinage would have difficulty
maintaining a full time job, Drouin and Dr. Benton wrote: “Mood
instability, difficulty maintaining personal safety, controlling
anger, unstable relationships, [and] poor coping skills.” Id.
Martinage saw Drouin again in September 2013. She
reported:
He has distance[d] himself from his father and
step-mother who are his sources of emotional support.
He is sleeping about 10-12 hours. He is describing
anhedonia. His energy level is low. His
concentration is fair. His appetite is diminished.
He has suicidal ideations with thoughts of hanging
himself [or] overdosing on insulin. He believes there
is a 30-40% chance that he would act on these
thoughts.
Tr. 1630. Case management progress notes from GNMHC indicate
that in August 2013 Martinage lost a job due to absences and
that in July 2014, he quit a job after having a dispute with a
coworker. Similarly, a recovery plan drafted by several
providers at GNHMC states that Martinage “struggles to maintain
employment and often gets into arguments with his boss/co-
workers.” Tr. 1738.
In January 2014, the Social Security Administration (“SSA”)
referred Martinage to Dr. Joan Scanlon for a consultative
psychological examination. With respect to Martinage’s current
level of functioning, Dr. Scanlon gave the following opinions:
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A. Activities of Daily Living: . . . Mr. Martinage
executes essential activities of daily living, such as
executing household chores, attention to grooming and
hygiene, and does not present as limited in this area.
B. Social Functioning: . . . [T]he claimant has
established a very positive relationship with his
stepmother despite their early history, maintain[s]
relations with a variety of friends, and spoke of very
positive relationships in the workplace. Although his
suicidal attempts have been precipitated by loss of
relationships, per his report as well as medical
records, he does not present as limited in this area.
C. Understanding and Remembering Instructions: . . .
Mr. Martinage is able to understand and remember
locations and work-like procedures as exemplified in
his prior places of employment; his ability to recount
the steps of managing his diabetes speaks to his
understanding of detailed instructions. He is not
limited in this area.
D. Concentration and Task Completion: . . . [T]he
claimant is able to execute simple, overlearned
routines, and persisten[ce] and pace [were] not noted
as a difficulty in his places of work. However, he
did evidence consistent struggles with information
processing and tasks of greater complexity in this
examination. He presents as somewhat limited in this
area.
E. Reaction to Stress, Adaptation to Work or Work-
Like Situations: . . . [T]he claimant was generally
able to sustain stresses in the work setting,
reporting only one negative event. He is further able
to render simple decisions, maintain attendance and a
schedule by his report, and positive relationships
with work personnel, as described. He is not limited
in this area.
Tr. 1691-92.
The Disability Determination Explanation (“DDE”) forms
generated by claimant’s applications for DIB and SSI include a
Psychiatric Review Technique (“PRT”) assessment of Martinage
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performed by Dr. Patricia Salt, a non-examining state-agency
psychiatric consultant. She noted the following relevant
diagnoses: diabetes mellitus, affective disorders, substance
addiction disorders, anxiety disorders, and personality
disorders. For the purposes of determining whether any of
claimant’s mental impairments satisfied the so-called “paragraph
B” criteria of a listed impairment, Dr. Salt reported that
claimant had mild restrictions on his ability to perform the
activities of daily living; mild difficulties maintaining social
functioning; moderate difficulties in maintaining concentration,
persistence, or pace; and had no episodes of decompensation,
each of extended duration.
Dr. Salt also performed an assessment of Martinage’s mental
residual functional capacity (“RFC”).4 She opined that Martinage
had no limitations in the areas of understanding and memory,
social interaction, and adaptation. With respect to claimant’s
capacity for sustained concentration and persistence, Dr. Salt
opined that Martinage had no significant limitation in six of
eight abilities, and moderate limitations in two others: the
ability to carry out detailed instructions and the ability to
maintain attention and concentration for extended periods.
4 “Residual functional capacity” is a term of art that means
“the most [a claimant] can still do despite [his] limitations.”
20 C.F.R. §§ 404.1545(a)(1) & 416.945(a)(1).
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Martinage received a hearing on his claim before an
Administrative Law Judge (“ALJ”). At the hearing, Martinage’s
counsel asked him about managing his diabetes:
Q Have you had trouble managing your diabetes?
A From day one.
Q Can you tell the Judge what your problems
have been managing your diabetes?
A Taking my insulin, monitoring my blood sugar
levels, bringing insulin with me if I leave, bringing
a snack with me if I leave. Pretty much everything
diabetes related.
. . . .
Q Can you explain why you have trouble doing
these things?
A Because I [am] depressed, I don’t care to do
them. It’s a struggle to take out my blood sugar, to
do my finger stick, to wait, to count carbs I need to
draw out my insulin. I don’t care. I’m too depressed
to – I know what the long-term effects are and I just
don’t care.
Q So when you don’t take care of yourself with
the diabetes, what happens to you physically?
A I get violently sick, I can’t leave the
bathroom, vomiting constantly.
Q And you end up having to go to the hospital?
A Yes.
Q So knowing that that happens to you that you
end up in the bathroom vomiting, having to go to the
hospital, you still have trouble taking your insulin
and counting your carbs?
A Yes.
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Q Have you[r] parents tried to help you with
managing your diabetes?
A At first, when I was first diagnosed, yes.
As I grew up and got older, they kind of left me to my
own devises to take care of myself. I don’t have the
willpower to do it.
Tr. 92-93. Claimant’s counsel questioned his mother on the same
topic:
Q Now Paul has had diabetes since
approximately the age of 9. Has he had trouble
managing the diabetes?
A Ever since he was younger. It was with our
guidance when he was younger.
Q And since he’s become an adult, have those
problems with managing the diabetes contin[ued]?
A Yes, they’re worse.
Q They’re worse? Can you explain what you
observe his problems to be managing his diabetes?
A Because he’s depressed, because he doesn’t
care. When he’s in that mood, he doesn’t do his
readings.
Q His blood sugar readings?
A He has admitted that he doesn’t do them
yearly [sic] and he should be doing them three or four
times a day. He has been dropped by many different
doctors because he does not follow protocol. They’ve
kind of given up on him, so that’s why he has so many
different doctors that have tried to work with him.
His Alc has been 12 of 13 since a very young age.
Q Which is very high.
A Which is very high. We’ve told him he won’t
have a long life and he is well aware of that. He
cannot move beyond the way he is.
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Tr. 96-97.
After the hearing, the ALJ issued a decision that includes
the following relevant findings of fact and conclusions of law:
4. The claimant has the following severe impairments:
diabetes mellitus, attention deficit hyperactivity
disorder, Bipolar II disorder, depression, anxiety,
borderline personality traits and substance abuse (20
CFR 404.1520(c) and 416.920(c)).
. . . .
5. The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
. . . .
6. After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform a full range
of work at all exertional levels but with the
following non-exertional limitations: the claimant
needs to avoid exposure to heights and dangerous
machinery. He is able to understand, remember and
carry out routine tasks and short simple instructions.
He is able to maintain attention and concentration for
extended periods. He is able to perform activities
within a schedule and maintain regular attendance. He
is able to complete a normal 8-hour workday and 40-
hour workweek without interruption for psychologically
based symptoms. He can perform at a consistent pace.
He is able to sustain an ordinary routine without
supervision. He is able to as[k] simple questions and
request assistance. He is able to accept instructions
and respond appropriately to criticism from
supervisors. He is able to respond appropriately to
changes in the work setting.
. . . .
11. Considering the claimant’s age, education, work
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experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a)).
Tr. 23, 26, 27-28, 30. The ALJ based his decision upon a
determination that claimant’s “limitations have little or no
effect on the occupational base of unskilled work at all
exertional levels.” Tr. 30.
III. Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under
a disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). To be eligible
for supplemental security income, a person must be aged, blind,
or disabled, and must meet certain requirements pertaining to
income and assets. 42 U.S.C. § 1382(a). The question in this
case is whether the ALJ correctly determined that Martinage was
not under a disability from December 14, 2010, through May 19,
2015.
To decide whether a claimant is disabled for the purpose of
determining eligibility for either DIB or SSI benefits, an ALJ
is required to employ a five-step process. See 20 C.F.R. §§
404.1520 (DIB) & 416.920 (SSI).
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The steps are: 1) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3) if the impairment meets the
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4) if the [claimant’s] “residual functional
capacity” is such that he or she can still perform
past relevant work, then the application is denied; 5)
if the [claimant], given his or her residual
functional capacity, education, work experience, and
age, is unable to do any other work, the application
is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20
C.F.R. § 416.920).
The claimant bears the burden of proving that he is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). He
must do so by a preponderance of the evidence. See Mandziej v.
Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982)). Finally,
[i]n assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including:
(1) objective medical facts; (2) [claimant]’s
subjective claims of pain and disability as supported
by the testimony of the [claimant] or other witness;
and (3) the [claimant]’s educational background, age,
and work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690
F.2d 5, 6 (1st Cir. 1982)).
B. Martinage’s Claims
Martinage claims that the ALJ erred in determining his RFC
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by: (1) giving too much weight to the opinions of Drs. Scanlon
and Salt; (2) giving too little weight to the July 2013 opinion
of Dr. Benton and nurse Drouin; (3) failing to evaluate the
opinions of four other treating sources; and (4) inadequately
analyzing the combined effects of his diabetes and his mental
impairments. The court agrees that the manner in which the ALJ
handled the opinion provided by Drouin and Dr. Benton merits a
remand.
1. Weight Given to the July 2013 Opinion
Generally speaking, when an ALJ evaluates opinions on a
claimant’s functional capacity submitted by medical sources,
the greatest weight should be placed on opinions from
treating sources, with less weight placed on opinions
from medical sources who merely examine a claimant,
and the least weight of all on opinions from medical
sources who have neither treated nor examined a
claimant.
Jenness v. Colvin, No. 15-cv-005-LM, 2015 WL 9688392, at *6
(D.N.H. Aug. 27, 2015) (quoting McLaughlin v. Colvin, No. 14-cv-
154-LM, 2015 WL 3549063, at *5 (D.N.H. June 8, 2015)); see also
20 C.F.R. §§ 404.1527(c) & 416.927(c). Moreover,
[i]f [an ALJ] find[s] that a treating source’s opinion
on the issue(s) of the nature and severity of [a
claimant’s] impairment(s) is well–supported by
medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the
other substantial evidence in [the claimant’s] case
record, [the ALJ] will give it controlling weight.
20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2).
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But even when an ALJ does not give controlling weight to
the opinion of a treating source, he or she is obligated to
determine the amount of weight to give that opinion by
considering: (1) the length of the treatment relationship and
the frequency of examination; (2) the nature and extent of the
treatment relationship; (3) the supportability of the opinion;
(4) the consistency of the opinion with the record as a whole;
(5) the medical specialization of the source giving the opinion;
and (6) any other factors that may support or contradict the
opinion. See 20 C.F.R. §§ 404.1527(c)(2)-(6) & 416.927(c)(2)-
(6). Indeed, after an ALJ performs the requisite analysis,
“[i]n many cases, a treating source’s opinion will be entitled
to the greatest weight and should be adopted, even if it does
not meet the test for controlling weight.” Hunt v. Colvin, No.
16-cv-159-LM, 2016 WL 7048698, at *7 (D.N.H. Dec. 5, 2016)
(quoting Social Security Ruling 96-2p, 1996 WL 374188, at *4
(S.S.A. July 2, 1996)).
Finally, an ALJ is obligated to give good reasons for the
weight he or she assigns to the opinion of a treating source.
See 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2).
To meet the “good reasons” requirement, the ALJ’s
reasons must be both specific, see Kenerson v. Astrue,
No. 10-cv-161-SM, 2011 WL 1981609, at *4 (D.N.H. May
20, 2011) (citation omitted), and supportable, see
Soto–Cedeño v. Astrue, 380 Fed. Appx. 1, 4 (1st Cir.
2010). In sum, the ALJ’s reasons must “offer a
rationale that could be accepted by a reasonable
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mind.” Widlund v. Astrue, No. 11-cv-371-JL, 2012 WL
1676990, at *9 (D.N.H. Apr. 16, 2012) (citing Lema v.
Astrue, C.A. No. 09–11858, 2011 WL 1155195, at *4 (D.
Mass. Mar. 21, 2011)), report and recommendation
adopted by 2012 WL 1676984 (D.N.H. May 14, 2012).
Jenness, 2015 WL 9688392, at *6.
In his decision, the ALJ had this to say about the opinion
provided by Drouin and Dr. Benton:
As for the opinion evidence, the undersigned has
considered the July 2013 opinion of Nurse Practitioner
Drouin. However, this source is not an acceptable
medical source within the meaning of the Social
Security Act (20 C.F.R. 404.1513 and 416.913).
Moreover, her clinic notes do not support the
limitations alleged. Nurse Practitioner Drouin did
not treat the claimant at all between October 2012 and
May 2013. When he did return for treatment, he
admitted to daily use of marijuana and ongoing use of
alcohol at a level of 8-9 beers at one time. He also
admitted that he was dealing with pending legal issues
yet, despite all of these concerns, he exhibited
normal speech, good eye contact and intact judgment.
Therefore, the undersigned affords this opinion little
weight.
Tr. 29 (citations to the record omitted).
There are several problems with the ALJ’s handling of the
opinion at issue. First, the ALJ characterized it as “the July
2013 opinion of Nurse Practitioner Drouin.” Tr. 29. But the
opinion was signed by both Drouin and Dr. Benton.5 Because Dr.
Benton is an acceptable medical source, see 20 C.F.R. §§
5 While the ALJ missed that point, the Acting Commissioner
at least tacitly acknowledges it; the parties’ Joint Statement
says that “Nurse Drouin and Dr. Benton . . . completed a Mental
Impairment Questionnaire,” doc. no. 16, at 28.
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404.1513(a)(1) & 416.913(a)(1), the ALJ did not give a good
reason for discounting that opinion when he treated it as the
product of someone who was not an acceptable medical source. In
her motion, the Acting Commissioner attempts to evade the
consequences of the ALJ’s error by arguing that claimant’s
treatment history with Dr. Benton was limited in scope, but “it
is not for the Acting Commissioner to defend the ALJ’s decision
with rationales that the ALJ did not articulate.” Hunt, 2016 WL
7048698, at *9 (citing Letellier v. Comm’r of SSA, No. 13-cv-
271-PB, 2014 WL 936437, at *8 (D.N.H. Mar. 11, 2014) (collecting
cases); Haggblad v. Astrue, No. 11-cv-028-JL, 2011 WL 6056889,
at *13 (D.N.H. Nov. 17, 2011)).
Next, the ALJ justified giving little weight to the opinion
because “Drouin did not treat the claimant at all between
October 2012 and May 2013.” Tr. 29. However, as the Acting
Commissioner correctly concedes, Martinage did see Drouin in
November of 2012. She attempts to argue around the ALJ’s
erroneous statement by pointing out that claimant’s treatment
with Drouin during the period at issue was minimal rather than
nonexistent. But, again, such post-facto justification is
insufficient. See Hunt, 2016 WL 7048698, at *7.
Finally, the ALJ stated that Drouin’s treatment notes did
not support the opinion because: (1) a May 14, 2013, mental
status examination revealed “[s]peech [of] a normal rate” and
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“judgment [that was] grossly intact,” Tr. 1450; and (2) a May
30, 2013, mental status exam revealed “[s]peech . . . of normal
rate,” “good eye contact,” and “judgment [that was] mostly
intact,” Tr. 1453. Instead of focusing on those justifications,
the Acting Commissioner points to other clinical findings and
argues that those findings, unmentioned by the ALJ, undermine
the July 2013 opinion. Yet again, the Acting Commissioner makes
an argument that goes beyond the ALJ’s rationale, which is not a
permissible approach to arguing for the affirmance of an ALJ’s
decision. See Hunt, 2016 WL 7048698, at *7. As for the
rationale that is properly before the court, i.e., the one the
ALJ articulated in his decision, the court is not persuaded. In
his decision, the ALJ plucked three observations from one or two
mental status examinations, but he said nothing about how
Drouin’s appraisal of Martinage’s speech, eye contact, or
judgment undermined any aspect of the opinion that she and Dr.
Benton gave on Martinage’s mental RFC. Thus, the ALJ’s
rationale lacks the specificity necessary to count as a good
reason for giving little weight to the July 2013 opinion.
In sum, this case must be remanded so that the Acting
Commissioner may conduct a proper evaluation of the July 2013
opinion, in accordance with 20 C.F.R. §§ 404.1527(c) &
416.927(c).
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2. Other Issues
The ALJ’s handling of the July 2013 opinion is enough to
warrant a remand. There is, however, an additional problem with
the ALJ’s decision that is worth noting at this point, to aid
the parties on remand. Claimant argues that in assessing his
RFC, the ALJ failed to adequately consider the relationship
between his diabetes and his mental impairments. The court
agrees.
With respect to multiple impairments, the applicable social
security regulation provides:
In determining whether [a claimant’s] physical or
mental impairment or impairments are of a sufficient
medical severity that such impairment or impairments
could be the basis of eligibility under the law, we
will consider the combined effect of all of [a
claimant’s] impairments without regard to whether any
such impairment, if considered separately, would be of
sufficient severity. If we do find a medically severe
combination of impairments, the combined impact of the
impairments will be considered throughout the
disability determination process.
20 C.F.R. §§ 404.1523 & 416.923.
Here, in the context of determining whether Martinage had
an impairment or combination of impairments that met or
medically equaled the severity of a listed impairment, at Step 3
of the sequential evaluation process, the ALJ stated: “As for
any mental health issues related to the claimant’s episodes of
ketoacidosis, these symptoms and signs are considered in
combination with the claimant’s other mental health diagnoses.”
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Tr. 26. But the section of the ALJ’s Step 3 analysis devoted to
Martinage’s mental impairments does not appear to say anything
about the relationship between those mental impairments and
claimant’s episodes of ketoacidosis. However, at Step 2, the
ALJ did have this to say about the discharge summary that
resulted from Martinage’s 2006 admission to New Hampshire
Hospital:
[H]is diabetes was poorly controlled. Psychiatrist,
Dr. Robert Vidaver indicated that the claimant did not
exhibit any interest in controlling this condition.
Thus, he diagnosed a personality disorder at that
time.
Tr. 23. Later on, in his analysis of the credibility of
claimant’s statements about his symptoms, the ALJ described
claimant’s hearing testimony: “He has trouble managing his
diabetes. He does not care to deal with it due to depression.
He knows the long-term effects but he does not care.” Tr. 28.
He also described testimony from claimant’s mother: “She has
tried to help him manage his diabetes with reminders, but he
will not follow-through. He does not have the desire. He has
episodes of ketoacidosis every other month or so.” Tr. 28. The
ALJ concluded:
While the undersigned has also considered testimony by
the claimant’s parents regarding complications of
diabetes, the medical records clearly show that each
instance of documented ketoacidosis occurred in the
context of the claimant’s noncompliance with
treatment. Yet there is no documented medical reason
for the claimant’s non-compliance as supported by
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evidence that he was dismissed from the diabetes
clinic due to his behavior of missing appointments.
Tr. 29.
In her motion, the Acting Commissioner supports the ALJ’s
conclusion by arguing that “there is evidence in the record
suggesting that [Martinage’s] non-compliance [with his treatment
regimen] was unrelated to his mental problems.” Doc. no. 15-1,
at 17. She then points to evidence that the ALJ did not cite,
i.e., a chart document generated by a May 7, 2012, office visit
with physician’s assistant (“PA”) in an endocrinology practice
who noted Martinage’s noncompliance and also reported that
Martinage denied depressive symptoms during that office visit.
However, in that same chart document, the PA reported
Martinage’s history of depression, and the PA adjusted
Martinage’s prescriptions for Wellbutrin and Lexapro, both of
which are anti-depressants.6 Given that Martinage’s PA actually
treated him for depression by adjusting his prescriptions for
Wellbutrin and Lexapro, Martinage’s denial of depressive
symptoms on May 7, 2012, is not substantial evidence that his
6 Wellbutrin is a “trademark for a preparation of bupropion
hydrochloride,” Dorland’s Illustrated Medical Dictionary 2079
(32nd ed. 2012), which is “used as an antidepressant,” id. at
261. Lexapro is a “trademark for a preparation of escitalopram
oxalate,” id. at 1032, which is “used as an antidepressant,” id.
at 647.
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entire nine-year history of noncompliance with his diabetes self
treatment regimen was unrelated to his mental impairments.
While the Acting Commissioner attempts to bolster the ALJ’s
resolution of this issue by pointing to one bit of medical
evidence, the ALJ himself pointed to none. To the contrary,
before announcing his conclusion that “there is no documented
medical reason for the claimant’s non-compliance,” Tr. 29, the
ALJ observed that Dr. Vidaver based a diagnosis of personality
disorder on Martinage’s lack of interest in controlling his
diabetes. In other words, the ALJ himself identified a
documented medical reason for Martinage’s noncompliance, that
reason being the personality disorder that Dr. Vidaver
diagnosed.
Beyond that, the record is replete with evidence that
Martinage was noncompliant with his diabetes treatment regimen
precisely because he suffered from a mental impairment.
Claimant testified that he was noncompliant due to depression.
See Tr. 92-93. His mother offered similar testimony. See Tr.
96-97.
Many of the providers who have treated Martinage for
diabetes and/or ketoacidosis have noted his mental impairments
and the treatment he has received for them. In November 2007,
after Martinage presented to the Joselin Clinic with “out of
control diabetes with recent [diabetic ketoacidosis],” Tr. 1009,
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26
Dr. Lori Laffel observed that Martinage’s “history of
significant depression . . . may be interfering with his ability
to manage his diabetes,” id. In a chart document that resulted
from an August 2010 office visit that was devoted to diabetes
treatment, the provider at an endocrinology practice noted
Martinage’s history of noncompliance and assessed him as being
was unable to check his blood sugar levels and take his insulin
regularly due to “ongoing depression/lack of motivation.” Tr.
1263. In the discharge note that resulted from a
hospitalization for “[d]iabetic ketoacidosis secondary to
noncompliance with insulins,” Tr. 1357, in May 2013, the
physician who discharged Martinage advised him to see his mental
health care provider, or establish care with one, within a week
or two, see Tr. 1358.
Conversely, Martinage’s providers of mental health care
have noted the relationship between his mental impairments and
his inability to perform diabetic self care activities. For
example, in the discharge note that resulted from Martinage’s
involuntary admission to New Hampshire Hospital in 2006, Dr.
Vidaver wrote:
Of greater significance is the patient’s diabetes,
which he has had for several years, and is poorly
controlled. The patient appears to have no interest
in controlling his diabetes, nor does he follow diet
or glucose testing as recommended by his physician and
the school nurse. There is a quality of defiance
towards the illness and, therefore, there is a risk
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27
towards his own long-term survival as the side effects
of diabetes take their toll.
Tr. 582. Similarly, in the discharge summary that resulted from
Martinage’s psychiatric hospitalization in May 2013, Dr. Duros
noted Martinage’s “very negligent . . . self care for diabetes
[and] very poor diabetes control” Tr. 1365, and the role that
apathy played in his noncompliance, see Tr. 1366. He continued:
[I]t is very clear with this client that with
improvement in mood, he is likely to be much more
effective at controlling his own blood sugars, and
this would result in significant improvement in his
physical well being, therefore we eventually decided
to start Zoloft initially at 25 mg daily. . . .
Again the benefits of treatment for his emotional
disturbance and mood disturbance would result likely
in significant[ly] better self care.
Tr. 1368.7
Finally, in an opinion to which the ALJ gave great weight,
see Tr. 29, Dr. Scanlon did not expressly attribute Martinage’s
noncompliance to a mental impairment, but she did devote
considerable attention to his noncompliance. In the history
section of her report, she wrote:
[H]e is not currently in active medical management of
his diabetes; services provided by a diabetic nurse
have been offered “many times” in the past without
success. On this note, Mr. Martinage recounted the
required steps for managing his diabetes in
considerable detail . . . . However, he does not
follow his regimen . . . . As apparently has been a
7 Zoloft is a “trademark for preparations of sertraline
hydrochloride,” Dorland’s, supra note 6, at 2092, which is “used
to treat depressive, obsessive-compulsive, and panic disorders,”
id. at 1699.
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longstanding pattern, his parents will “nag” on him
“all the time[”], given he has never managed his
diabetes independently or adhere[d] to the required
regimen.
Tr. 1689. In her discussion of content of thought, Dr. Scanlon
reported that Martinage’s “most recent suicidal plan was by
overdose of insulin and provoking diabetic ketoacidosis.” Tr.
1690. Her prognosis provides, in pertinent part:
The claimant is recently exhibiting consistency and
effort to address his psychological difficulties.
However, the equally pertinent management of his
diabetes continues to remain quite problematic. . . .
With continued intervention and considerably greater
focus upon diabetic management, his level of
functioning will continue to improve.
Tr. 1692. That a psychological consultant would devote so much
attention to Martinage’s management of his diabetes tends to
undercut the idea that his noncompliance is unconnected to his
mental impairment.
In light of the foregoing, the court cannot agree that
substantial evidence supports the ALJ’s conclusion that there is
no documented medical reason for Martinage’s noncompliance with
his doctors’ instructions for managing his diabetes.
Accordingly, on remand, the Acting Commissioner will need to
follow the directive of 20 C.F.R. §§ 404.1523 and 416.923 and
consider the combined effect of Martinage’s diabetes and his
mental impairments throughout the sequential evaluation process.
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IV. Conclusion
For the reasons given, the Acting Commissioner’s motion for
an order affirming her decision, document no. 15, should be
denied, and Martinage’s motion to reverse that decision,
document no. 10, should be granted to the extent that the case
is remanded to the Acting Commissioner for further proceedings,
pursuant to sentence four of 42 U.S.C. § 405(g).
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
SO ORDERED.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 20, 2017
cc: Janine Gawryl, Esq.
T. David Plourde, Esq.
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