Janine Alcantara v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1056
JANINE ALCANTARA,
Plaintiff, Appellant,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Lynch and Howard,
Circuit Judges.
Ronald B. Eskin on brief for appellant.
Dulce Donovan, Assistant U.S. Attorney, and Robert Clark
Corrente, United States Attorney, on brief for appellee.
December 12, 2007

-- 1 of 5 --

-2-
Per Curiam. After carefully considering the briefs and
record on appeal, we remand for further administrative proceedings.
The appellant alleged disability since November 2001, due
to depression, anxiety, insomnia, ADHD, diabetes, hypertension and
hepatitis C. She was obese, with an eighth-grade education,
involving special education classes.
After a March 2004 hearing, the ALJ found that the
appellant had severe mental and severe physical impairments that
rendered her incapable of her past work. Only his findings
concerning her mental capacities are relevant here. The ALJ found
that the appellant had moderate limits in social functioning. She
could perform light, unskilled work involving occasional
interaction with the public, coworkers and supervisors. A VE
testified that the capacity for light, unskilled work with moderate
limits in social functioning would permit substantial employment.
The VE doubted, however, that more severe limitation would permit
substantial employment. At step five of the disability process,
the ALJ relied upon the finding that the appellant had only
moderate limits in social functioning, without other material
mental limits, to discharge his burden of showing that she was
employable. 20 C.F.R. § 416.920. That finding was not supported
by substantial evidence.
In finding only moderately limited social functioning and
excluding other material mental limitations, the ALJ discounted

-- 2 of 5 --

-3-
Treating Psychiatrist Webb's opinion, Therapist Serabian's
concordant opinion, and the opinions of consultants DiZio and
Killenberg. The ALJ explained that he was relying primarily on the
opinion of non-examining, consultant Musiker. The ALJ could not
give Musiker's opinion any significant weight. It was the opinion
of a reviewing consultant, based on a significantly incomplete
record, and it was not well justified. See 20 C.F.R. § 416.927(d).
Musiker, reviewing upon reconsideration, considered no more than
the first third of the record for the period of alleged disability.
His opinion was irrelevant to most of the disability period.
Although the ALJ stated that the record underwent no material
change, he did not explain his analysis. The record repeatedly
indicated that the appellant deteriorated with her parents' deaths.
The record upon reconsideration was compiled after her mother's
death, but before her father's death. Musiker mentioned no
specific medical findings to justify his opinion, but he appears to
have been unaware of the mother's death and the issue it raised.
Moreover, unlike the record before the ALJ, the record reviewed by
Musiker contained no reports from therapists or treating
psychiatrists for the period of alleged disability. As a non-
examining psychologist, Musiker's opinion merited less prima facie
credibility than treating and examining sources, and less
credibility than more expert sources. Absent a medical advisor's

-- 3 of 5 --

-4-
or consultant's assessment of the full record, the ALJ effectively
substituted his own judgment for medical opinion.
The ALJ offered other rationales for discounting the
opinions that the appellant was more severely mentally limited, but
they do not bear the weight placed upon them. The ALJ ignored
Therapist Serabian's opinion because she was a licensed social
worker, not an acceptable medical source. See 20 C.F.R. §§ 416.902,
416.913, 416.927. The ALJ could not simply ignore Serabian's
opinion. Although acceptable medical sources are the primary
sources of evidence about the severity of impairment and its effect
on work abilities, they are not the sole permissible sources of
such evidence. 20 C.F.R. §§ 416.913(d); 416.929(c)(3). Serabian
was a medical source capable of providing evidence about the
severity and effects of impairment, as well as a general source of
evidence. 20 C.F.R. §§ 416.902, 416.912(b), 416.913(d),
416.945(a). The ALJ was required to weigh all of the evidence. 20
C.F.R. §§ 416.920(a)(3), 416.920a (a) & (c); 416.927(c).
The ALJ also discounted the appellant's limitations
because she neglected prescribed treatment. His reasoning
concerning psychiatric treatment is unclear. The appellant did
miss therapy appointments in May or June 2003. Providence Center
records stated, however, that she obtained interim treatment at
West Bay Psychiatry. Irrespective, the rationale for requiring
compliance with medical advice is not to punish minor lapses, but

-- 4 of 5 --

-5-
to ensure that claimants do what they can to restore capacity. 20
C.F.R. § 416.930(a). Furthermore, non-compliance may be excused for
good cause. 20 C.F.R. § 416.930(b) & (c). At the time of the
missed appointments, the appellant's therapist and
gastroenterologist reported that she was deteriorating with chaotic
life circumstances. The ALJ failed to explain his analysis of
these issues.
The ALJ also mentioned limited episodes of improvement
and favorable indicia of general functioning. A brief reprieve
would not render the appellant able-bodied. She was entitled to
benefits if any medically-determinable, severe impairment prevented
her from working for a continuous period of at least twelve months.
20 C.F.R. § 416.905. She also needed several, specific, mental
capacities to work. The ALJ did not explain how assessments of her
general level of functioning were relevant to her specific
abilities to tolerate stress, supervision, coworkers and others.
We vacate the district court judgment and remand to the
district court with direction to remand to the agency for further
proceedings consistent with this opinion.
Vacated and remanded.

-- 5 of 5 --