UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Tammy L. Hines

v. Case No. ll-cv-262-PB Opinion No.

Michael As true. Commissioner Social Security Administration

MEMORANDUM AND ORDER

Tammy Hines seeks judicial review of a decision by the

Commissioner of the Social Security Administration denying her

applications for disability insurance and supplemental security

income benefits. Hines contends that the Administrative Law

Judge ("ALJ") who considered her applications erred in assessing

her residual functional capacity ("RFC") and improperly relied

upon the Medical-Vocational Guidelines to determine that she was

not disabled. For the reasons provided below, I affirm the

Commissioner's decision.

I. BACKGROUND1

Hines applied for disability benefits on February 21, 2007,

when she was twenty-nine years old. She initially alleged a

disability onset date of September 19, 2005, due to anxiety,

1 The background information is taken from the parties' Joint Statement of Material Facts. See L.R. 9.1(b). Citations to the Administrative Transcript are indicated by "Tr." asthma, and knee pain. She subsequently amended the disability

onset date to February 19, 2007. Hines is a high school

graduate who worked as a cashier, an amusement park ride

operator, and a folder maker.

A. Medical History

Hines received treatment at the Nashua Area Health Center

("NAHC") beginning in December 2003, when she was diagnosed with

mild persistent asthma. On September 14, 2005, she called the

NAHC to report chest pains. A doctor refilled her asthma

prescriptions. A week later, Hines went to the emergency room

("ER") complaining of intermittent sharp chest discomfort. The

diagnosis was atypical chest pain. When she followed up with

Dr. Bundschuh at the NAHC five days later, she reported that she

had continued to experience similar chest pain since the ER

visit. She also complained that symptoms of her asthma had

increased and that she had to use her inhaler more frequently.

She was assessed with atypical chest pain that appeared to be

musculoskeletal in origin.

Hines presented to the ER again the following month due to

dizziness and chest pain. The impression was chest wall pain

and she was advised to apply heat to the area.

On December 19, Hines informed Dr. Bundschuh that she was

taking Singulair for her asthma, but still had to use her

2 inhaler three to four times a day. She stated that her asthma

prevented her from working. At a follow-up appointment on May

1, 2006, Dr. Bundschuh noted that Hines was doing well with her

mild persistent asthma as long as she had access to medications.

Later that same month, Hines returned to Dr. Bundschuh. He

again assessed stable asthma and recommended stress management.

On June 26, 2006, Hines went to the NAHC to follow up on an

ER visit for asthma exacerbation. She complained of

intermittent chest pressure that occurred when she was stressed.

On October 18, Hines returned to the NAHC for a health

maintenance visit. The impression was a "well woman" with mild

persistent asthma and psychological stress. The following

month, however, Hines again complained of right chest pain that

she rated as six on a scale of one to ten. The assessment was

bronchitis.

On December 26, Hines went to the ER complaining of chest

pain. It was noted that Hines had made multiple visits to the

ER for atypical chest pain. Thistime she also complained of

shortness of breath and palpitations. The final diagnosis was

chest wall pain and dehydration. Two days later, she followed

up with Carol Manning, a nurse practitioner at the NAHC, and

rated her chest pain as seven out of ten. The pain was

3 reproduced with pushing on the chest wall directly over the

sternum. The assessment was costochondritis.

On January 11, 2007, Hines again went to the ER complaining

of chest pain. She also reported experiencing occasional

shortness of breath over the past few months. The diagnosis was

chest wall pain.

On January 17, Hines called the NAHC, stating that she was

still having chest pains with any exertion. Hines reported that

she could not afford the medication that she had been

prescribed. The next day. Nurse Manning assessed Hines with

unspecified abdominal pain and advised her to take Nexium. She

also noted that Hines was previously diagnosed with

costochondritis and given prescriptions that she never filled.

She had also been in the ER twice, but failed to follow the

recommended treatment plans.

On February 1, Hines was again seen at the NAHC for her

chest and abdominal pain. She was assessed with unspecified

abdominal pain, most likely due to gastritis. She reported

little improvement with Nexium. Approximately two weeks later,

however, she stated that Nexium was making her feel better. She

also reported experiencing anxiety for the past month. Hines

said she had blacked out the day before and was angry and

yelling at people. Upon examination, Hines appeared anxious,

4 but her judgment, insight, and memory were intact. The

assessment was mild persistent asthma, unspecified abdominal

pain, knee pain, and generalized anxiety disorder.

The following month, Hines returned to the ER, complaining

of chest pain and abdominal pain. She also reported having had

shortness of breath while going up and down stairs. She stated

that she experienced "the shakes" due to her anxiety and that

she was on Paxil. The diagnosis was abdominal pain.

Hines went to the ER again on May 1, 2007, for chest pain.

She stated that she experienced sharp chest pain with a racing

heart when sleeping. She reported stress at home "mostly

because she has to watch her dog all day and the dog needs to go

outside every two hours." Tr. 387. The impression was atypical

chest pain and anxiety. Three days later, Hines called the NAHC

complaining of anxiety and chest pain.

On May 8, Hines underwent a comprehensive psychological

profile performed by Dr. Francis Warman, a psychologist. Dr.

Warman observed that Hines was nervous and anxious and had some

mild stuttering in her voice. Hines reported having panic

attacks three or four times a day and experiencing chest pain,

shortness of breath, heart palpitations, occasional blackouts,

and occasional bouts of screaming. She reported having had

5 difficulty sitting in school and paying attention, and noted

that she was in special education through high school.

Dr. Warman's diagnosis was panic disorder without

agoraphobia. He noted that Hines appeared to have difficulties

with concentration and believed that further testing for

cognitive problems might be warranted. He also stated that

there was some indication of a learning disability, particularly

in the areas of computation and distractibility. According to

Dr. Warman, Hines was able to understand and remember simple

instructions and to interact appropriately and communicate

effectively with others. In light of her distractibility and

hyperactivity. Dr. Warman noted that it would be difficult, but

not impossible, for Hines to maintain her concentration and

focus in work situations. In addition, he opined that her

frequent panic attacks would make it difficult, but not

impossible, for her to maintain attendance and follow schedules

at work.

On May 9, 2007, Hines was seen at the NAHC to follow up

regarding her chest pain. She was still having anxiety and

rated her chest pain as five out of ten. Nurse Manning

diagnosed generalized anxiety disorder. She noted that Hines

had made many visits to the ER and NAHC for the same problem,

and that numerous tests and cardiac workups showed no problem

6 other than anxiety. Hines admitted that anxiety was taking over

her life and that she understood that there was nothing

seriously wrong when she had her attacks. Nurse Manning

increased Hines's dosage of Paxil and prescribed Adavan for

emergency management of panic attacks. She also referred Hines

to the Community Council of Nashua for counseling.

The following day. Nurse Manning wrote a letter addressing

Hines's medical issues as they related to her ability to work.

She opined that Hines's main issue was severe anxiety, which

frequently caused panic attacks. She also indicated that Hines

had moderately severe asthma and was frequently symptomatic.

Dr. William Jamieson completed a psychiatric review on May

17, 2007. He opined that Hines had mild restrictions in her

activities of daily living; no difficulties in maintaining

social functioning; moderate difficulties in maintaining

concentration, persistence, or pace; and no episodes of

decompensation. In his mental RFC statement. Dr. Jamieson

concluded that Hines could understand, remember, and carry out

simple instructions; maintain attention in a simple job setting

with clear expectations and reasonable supervision; maintain

attendance and follow a schedule, despite some disruption due to

anxiety symptoms; sustain an ordinary routine without special

7 supervision; adequately relate with others; and respond

appropriately to routine work changes.

On May 30, Hines presented to the NAHC complaining of

dizziness, a headache, and left ear pain. Nurse Manning

assessed generalized anxiety disorder (improved on Paxil) and

minor vertigo. Five days later, Hines returned to the NAHC for

dizziness and neck pain. The impression was minor vertigo, and

Hines's medication was increased. Two days later, Hines still

reported feeling dizziness and chest pain, but denied neck pain.

She was referred to an ear, nose, and throat specialist for

minor vertigo.

Hines went back to the NAHC on July 9 to follow up about

her anxiety. She reported feeling better. The assessment was

generalized anxiety disorder. Hines felt that her anxiety was

under good control. It was also noted that her mild persistent

asthma was generally under good control.

On July 31, Hines went to the ER, complaining of shortness

of breath with a persistent cough for several days prior to the

visit. She also reported left mid-back pain with inspiration.

The symptoms were attributed to asthma exacerbation. Hines felt

better after receiving an Albuterol nebulizer treatment.

Hines returned to the ER on August 17, complaining of

shortness of breath that had been severe over the previous two hours, and chest wall discomfort associated with a non­

productive cough. She reported using her inhaler approximately

three to four times a day. The final diagnosis was asthma.

Dr. Sabah Hadi, a consulting psychiatrist, filled out a

mental RFC evaluation on January 11, 2008. Dr. Hadi concluded

that Hines had no limitations with respect to performing simple

work; mild limitations in her ability to interact with others;

and moderate limitations in her ability to respond to usual work

situations and work changes. "Moderate" was defined on the form

as "more than a slight limitation in this area but the

individual is still able to function satisfactorily." Tr. 428.

On March 10, 2008, Hines went to the ER complaining of

chest pain. She felt like her heart was racing and she was

short of breath. The impression was right flank pain. Hines

was given Vicodin for the pain and advised to heat the area. At

a follow-up appointment at the NAHC on March 19, Hines rated her

chest pain as nine out of ten. The assessment was

costochondritis.

On May 8, Hines returned to the NAHC, complaining of chest

pain (again rated as nine out of ten), dizziness, and back

numbness. The assessment was unspecified chest pain. Three

days later, Hines presented to the ER due to chest wall pain.

She was told to follow-up with Nurse Manning. In June, she

9 again went to the ER due to chest pain. The impression was left

chest wall pain.

On June 5, Nurse Manning filled out a medical source

statement on behalf of Hines. She opined that Hines had a

slight limitation in her ability to understand, remember, and

carry out short and simple instructions; no limitation in her

ability to make judgments on simple tasks; no limitation in her

ability to interact with others; and a slight limitation in her

ability to respond to work pressures and routine changes. Nurse

Manning noted that Hines was experiencing episodes of severe

anxiety with unpredictable triggers, and had mild asthma that

worsened during anxiety attacks. She opined that Hines was

nonetheless capable of gainful employment, but that her

conditions possibly could cause her to be absent from work three

or more times per month, depending upon how well her anxiety was

controlled.

Based on a referral from Nurse Manning, Hines was seen at

the Community Council of Nashua on July 2. Hines reported that

her panic attacks began after a car accident two years earlier.

Since then, she only felt safe using the city bus as a means of

transportation. Hines described experiencing a heightened

startle response, a racing heart, difficulty breathing, shaking,

and feeling as though she would fall to the ground. She felt

10 overwhelmed and easily distracted. At times she would stop

herself from leaving her home. She complained of decreased

sleep, appetite, memory, and concentration. She also reported

becoming agitated easily.

During her mental status evaluation, Hines's behavior,

attitude, eye contact, and speech were within normal limits.

Her thought process was normal and insightful. Hines reported

fleeting thoughts of self-harm without suicidal intent and no

actions on the self-harm thoughts. Her mood reflected anxiety

and her affect was appropriate to her mood. The intellectual

functioning test showed that she had a short attention span with

an average intelligence. Her memory was impaired in immediate

and recent recall. She was oriented in all spheres and her

judgment appeared to be adequate. Her Global Assessment of

Functioning ("GAF") score was 58.2

The next day, Hines went to the NAHC complaining of ongoing

numbness in her arms, hands, legs, and feet. The assessment was

that the numbness was likely due to anxiety.

2 A GAF of 51-60 indicates " [ni] oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers)." Diagnostic and Statistical Manual of Mental Disorders at 34 (4th ed. 2 000) ("DSM-IV").

11 Approximately a month later, Hines went to the ER due to

chest pain. The impression was chest wall pain. She was

advised to take Ibuprofen and to heat the area.

On August 26, Nurse Manning wrote that Hines suffered from

severe anxiety and mild persistent asthma. She noted that Hines

had fairly frequent exacerbations and that Hines felt she was

unable to work.

Hines received counseling from Maureen Hayes, a licensed

mental health counselor at the Community Council of Nashua, on

six occasions between July and November 2008. On September 3,

Hayes filled out a medical source statement. She noted that

Hines had disorganized thinking, poor concentration, and poor

focus. According to Hayes, Hines was moderately limited in her

ability to understand, remember, and carry out short, simple

instructions; make judgments on simple work-related decisions;

interact appropriately with the public, supervisors, and co­

workers; and respond to work pressures and routine changes in a

work setting. "Moderate" was defined on the form as "more than

a slight limitation in this area but the individual is still

able to function satisfactorily." Tr. 520. The counselor noted

that dealing with changes increased Hines's anxiety and pain.

She also noted that Hines experienced isolation in social

interaction and that monitoring was needed for personal care.

12 Hayes opined that Hines was not capable of gainful employment on

a sustained basis at that time.

Hines was discharged from the Community Council of Nashua

three months later. Her treatment was completed with her goals

mostly met. It was noted that Hines attended appointments as

scheduled and worked on developing skills for reducing the

intensity and severity of her symptoms. Hines reported a

noticeable reduction in symptoms.

Hines returned to the Community Council of Nashua on March

24, 2009, a week after the death of her husband, upon referral

from Nurse Manning. Hines reported suffering from chronic worry

and felt like she was unable to express herself. She felt

isolated and lonely, and lacked energy, interest, or motivation.

She also complained of sleep and appetite disturbances,

increased physical pain and panic attacks, a rapid heartbeat,

chest pain and pressure, shortness of breath, tingling in her

arms and legs, irritability, agitation, anger, a lack of memory,

and a lack of concentration. When in a social setting, she

would completely shut down. A mental status evaluation was

essentially normal, except her intellectual functioning showed a

short attention span with a below average to average

intelligence. It was noted that her memory was impaired in

immediate and recent recall. Her GAF score was 60. She

13 subsequently received counseling from Maureen Hayes on six

occasions between April and September 2009.

On April 13, 2009, Hines was seen by Dr. Lawrence Jasper, a

consulting psychologist, for a comprehensive psychological

examination. Hines reported that a month prior to the

evaluation, her 66-year-old husband of the past seven years had

died. She stated that she had been diagnosed with depression

about a month prior to the examination. Hines explained that

the depression began when she was a child, but it grew worse

during the six months before her husband died. Hines reported

that she was coded as educationally handicapped in school

because she was a very slow learner and had attention deficit

hyperactivity disorder. She believed that she could not work

because of pain, anxiety, and excessive irritability.

On mental status examination, Hines performed in the

impaired range on the tests of immediate and intermediate verbal

memory, which was consistent with Hines's report of having

required a one-to-one aide in order to interpret classroom

instructions. Her speech was articulate and grammatical, her

eye contact was good, affect was appropriate, thinking was goal

directed, her intelligence appeared average, and her mood was

within normal limits. Hines described her anxiety level as

elevated in response to extensive cognitive demands. Dr. Jasper

14 assessed that Hines was able to understand and remember simple

instructions; interact appropriately and communicate effectively

with family, friends, her landlord, and fellow employees;

sustain attention and complete simple tasks; and tolerate

stresses associated with a typical work setting.

On April 26, 2009, Hines was brought to the ER by ambulance

because she was having sharp, severe chest pain. Diagnostic

studies were essentially unremarkable. The impression was

costochondritis, improved after administration of Toradol.

Hines underwent a psychiatric evaluation by Dr. Jonathan

Sobin on June 5, 2009. She primarily complained of symptoms of

panic disorder (two to three episodes per week) that were

sometimes triggered by asthma attacks. Her panic attacks

manifested as a shortness of breath, tightness in her chest,

pain, shaking, blackouts, and a fear of completely losing

control. Hines reported nervous reactions to being among people

she did not know well and also complained of insomnia. Dr.

Sobin opined that Hines's degree of functional loss was between

slight and moderate in daily activities, slight in social

interactions, slight in task performance, and moderate in stress

reaction. His diagnostic impression was panic disorder with

agoraphobia.

15 At a mental health counseling session on December 1, 2009,

Counselor Hayes noted that Hines had an increased sense of

sadness secondary to the loss of her husband. Hines saw Hayes

for mental health counseling again on December 30, 2009. On

March 23, 2010, Hines requested that her case be closed.

On June 4 and 18, 2010, Dr. Jasper, an examining

consultant, conducted an intelligence profile and

neuropsychological test battery. Dr. Jasper noted that Hines

displayed an unusual lack of insight for an adult and that she

did not appear to be a fully accurate historian. She reported

that panic attacks manifested in motoric shakiness, difficulty

breathing (which might escalate to an asthma attack), chest

pain, a rapid heartbeat, and numbness and tingling in her left

arm and right leg from the kneecap down. Hines said she did not

have panic attacks if she stayed away from her disruptive

neighbors.

The examination was terminated by Hines about six hours

into the session. Hines complained that her arm was too tired,

and that taking a break would not help her. She also was

worried about her pet bird because she had forgotten to turn on

the air conditioning. Hines was encouraged to call her

attorney, who strongly urged her to complete the examination.

During the call, she became genuinely upset, stating, "I'm just

16 full of emotion. I'm afraid if I continue. I'm going to be in

an ambulance going to the hospital[.]" Tr. 709. After the

phone call, Hines explained that she felt that she might develop

a panic attack because she was so upset, which would trigger a

severe asthma attack. The session was terminated and Hines

offered to come back to finish the testing.

Hines returned for her second appointment on June 18. She

seemed happy and cooperative during the remaining portion of the

examination. Dr. Jasper noted that Hines's speech was

articulate and grammatical and that her affect was bright and

cheerful. He also noted that she became irritable and somewhat

labile on two occasions when placed under stress but was able to

maintain adequate self-control.

Dr. Jasper diagnosed panic disorder without agoraphobia and

borderline intellectual functioning. He opined that Hines was

able to complete her daily activities; interact appropriately

with others in a work setting, despite some difficulty;

understand and remember very short, simple instructions;

maintain attention and concentration on simple tasks; and

tolerate stressors common to a work setting.

In an RFC statement. Dr. Jasper opined that Hines had

moderate limitations in her ability to understand, remember, and

carry out simple instructions; make judgments on simple work-

17 related decisions; interact appropriately with the public,

supervisors, and co-workers; and respond appropriately to work

situations and changes in routine work settings. "Moderate" was

defined on the form as "more than a slight limitation in this

area but the individual is still able to function

satisfactorily." Tr. 703.

Hines went to the ER on July 27, 2010, complaining of chest

pain, shortness of breath, and dizziness. She was admitted for

atypical chest pain and ataxia. It was noted that Hines's pain

appeared to be related to anxiety/hysteria. Several days later,

she was seen at the NAHC to follow up on the ER visit. She

still had pain, which was worse with inspiration. The

assessment was non-cardiac chest pain.

On November 2, 2010, Hines was seen by Dr. Kalyani Eranki

for a rheumatology consultation. She had significant eczema on

both hands. An antinuclear antibody test ("ANA") was positive.

The doctor reported that Hines seemed to have symptoms of

Raynaud's syndrome. At a follow-up appointment later in the

month. Dr. Eranki discussed conservative treatment options.

B. Administrative Proceedings

After her claim for disability benefits was denied at the

initial levels, Hines requested a hearing before an ALJ. The

hearing was held on September 11, 2008. The ALJ issued an

18 unfavorable decision on November 3, 2008, and the Decision

Review Board ("DRB") reviewed the case. On February 6, 2009,

the DRB vacated the ALJ's decision and remanded the case for a

further hearing to resolve several issues. Among other things,

the DRB asked the ALJ to "evaluate the claimant's mental

impairments, consider further the claimant's maximum residual

functional capacity . . . and obtain vocational evidence." Tr.

100 .

Hines appeared before a different ALJ for a new hearing on

October 27, 2010. Hines was represented by counsel. She and

her father testified. A vocational expert was also present but

was not asked to testify.

On December 23, 2010, the ALJ issued an unfavorable

decision. At step two of the sequential analysis, the ALJ found

that Hines had the following severe impairments: panic disorder

without agoraphobia; borderline intellectual functioning;

asthma; and possible Raynaud's syndrome with a positive ANA

test. At step three, he found that her impairments did not meet

or medically equal a listing. The ALJ then determined that

Hines had the RFC to perform medium work, except that she "is

limited to work involving simple instructions" and "cannot be

exposed to excessive dust, fumes, gases, and extreme

temperatures." Tr. 13. At step five, the ALJ determined that

19 the additional limitations had no effect on the occupational

base of unskilled medium work and decided, based on the Medical-

Vocational Guidelines, that jobs existed in significant numbers

in the national economy that Hines could perform. Accordingly,

the ALJ found that Hines was not disabled from February 19, 2007

through the date of the decision.

The DRB again selected the claim for review, but notified

Hines on March 29, 2011 that it did not complete its review

during the time allowed. The ALJ's December 23, 2010 decision

therefore became the final decision of the Commissioner.

II. STANDARD OF REVIEW

Under

(g), I am authorized to review the

pleadings submitted by the parties and the transcript of the

administrative record and enter a judgment affirming, modifying,

or reversing the "final decision" of the Commissioner. My

review is limited to determining whether the ALJ used "the

proper legal standards and found facts [based] upon the proper

quantum of evidence." Ward v. Comm'r of Soc. Sec.,

(1st Cir. 2000) .

The findings of fact made by the ALJ are accorded deference

as long as they are supported by substantial evidence.

20 Substantial evidence to support factual findings exists "'if a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support his conclusion.'"

Irlanda Ortiz v. Sec'y of Health & Human Servs.,

(1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec'y of

Health & Human Servs.,

(1st Cir. 1981) ) . If

the substantial evidence standard is met, factual findings are

conclusive even if the record "arguably could support a

different conclusion." Id. at 770.

Findings are not conclusive, however, if they are derived

by "ignoring evidence, misapplying the law, or judging matters

entrusted to experts." Nguyen v. Chater,

(1st

Cir. 1999). The ALJ is responsible for determining issues of

credibility and for drawing inferences from evidence on the

record. Irlanda Ortiz,

. It is the role of the

ALJ, not the court, to resolve conflicts in the evidence.

The ALJ follows a five-step sequential analysis for

determining whether an applicant is disabled.

;

. The applicant bears the burden,

through the first four steps, of proving that his impairments

preclude him from working. Freeman v. Barnhart,

(1st Cir. 2001). At the fifth step, the ALJ determines

whether work that the claimant can do, despite his impairments,

21 exists in significant numbers in the national economy and must

produce substantial evidence to support that finding. Seavey v.

Barnhart,

(1st Cir. 2001).

Ill. ANALYSIS

Hines argues that the ALJ erroneously denied her claims for

disability benefits because he failed to account for her panic

disorder in the RFC assessment, improperly discounted certain

medical source opinions, and improperly relied upon the Medical-

Vocational Guidelines (the "Grid") to determine that she was not

disabled.3 I address each challenge below.

A. The ALJ's RFC Assessment

Hines contends that the ALJ's RFC assessment is not

supported by substantial evidence. Specifically, she argues

that the ALJ's decision is internally inconsistent because he

found at step two that her panic disorder was a severe

impairment but then failed to include in her RFC any functional

restrictions associated with the impairment. The argument lacks

merit.

3 Hines also argues that the ALJ failed to comply with instructions in the DRB's remand order. Because my task is to decide whether the ALJ applied the correct legal standards and reached a decision that is supported by substantial evidence, the allegation is not relevant to my review of the ALJ's decision. See

(g); Wilkins v. Barnhart, 69 Fed. App'x. 775, 779 (7th Cir. 2003).

22 The determination at step two as to whether an impairment

is severe is a de minimis test, designed to "screen out

groundless claims." McDonald v. Sec'y of Health & Human Servs.,

(1st Cir. 1986). All that is required of

the claimant at this step is "to make a reasonable threshold

showing that the impairment is one which could conceivably keep

him or her from working."

. An ALJ's finding that

an impairment is severe does not necessarily translate into

functional restrictions in the RFC. See Griffeth v. Comm'r of

Soc. Sec.,

(6th Cir. 2007) ("The ALJ's

finding that the limitation was [severe], however, was not

inherently inconsistent with his finding that the limitation has

'little effect' on the claimant's ability to perform basic work-

related activities."); Sykes v. Apfel,

, 268 n.12

(3d Cir. 2000) ("A finding under step two of the regulations

that a claimant has a 'severe' nonexertional limitation is not

the same as a finding that the nonexertional limitation affects

residual functional capacity"). Accordingly, although the ALJ

determined that Hines's panic disorder was a severe impairment,

he was not required to find that the impairment affected Hines's

RFC.

With respect to her mental RFC, the ALJ determined that

Hines was limited to work involving simple instructions, but

23 that she was able to use judgment, respond appropriately to

supervision, co-workers, and usual work situations, and cope

with routine changes in a work setting. Hines argues that the

ALJ's finding indicates that he rejected without adequate

explanation all medical source opinions to the extent they

identified functional limitations related to her panic disorder.

Specifically, she points out that the ALJ gave significant

weight to the opinions of Drs. Jamieson, Hadi, and Jasper, but

failed to explain his treatment of their opinions that she had

"moderate" limitations in her ability to respond appropriately

to changes in a work setting and/or in her ability to interact

appropriately with supervisors and co-workers. Based on the

definition of "moderate" common to all the opinions, I disagree.

The medical source and RFC evaluation forms that the

doctors filled out all define a "moderate" limitation as "more

than a slight limitation in this area but the individual is

still able to function satisfactorily." Given that the doctors

in effect opined that Hines could still respond to changes in a

work setting and interact with others at a satisfactory level,

despite some difficulties, the ALJ's assessment is not

inconsistent with their opinions. See McLain v. Astrue, No.

SACV 10-1108 JC,

, at *6 (C.D. Cal. June 3, 2011)

("Moderate mental functional limitations - specifically

24 limitations in social functioning and adaptation - are not per

se disabling, nor do they preclude the performance of jobs that

involve simple, repetitive tasks.").

In fact, medical opinions indicating that a claimant is at

most moderately limited in the relevant areas can "adequately

substantiate" an ALJ's finding that the claimant can function in

a work environment. Falcon-Cartagena v. Comm'r of Soc. Sec.,

(1st Cir. 2001); see Quintana v. Comm'r of

Soc. Sec., 110 Fed. App'x. 142, 145 (1st Cir. 2004) (the ALJ's

finding that claimant could "relate normally to supervisors and

co-workers" is supported by treating psychiatrist's opinion that

the claimant's social functioning was "only 'moderately' limited

in most respects"). Here, the ALJ's assessment is bolstered by

Nurse Manning, whose opinion stated that Hines had only a mild

limitation in her ability to cope with work pressures and

routine changes in a work setting, and no limitation in her

ability to interact with others. The ALJ gave significant

weight to that opinion. The ALJ was entitled "to piece together

the relevant medical facts from the findings and opinions of

multiple physicians." Evangelista v. Sec'y of Health & Human

Servs.,

(1st Cir. 1987). Accordingly, the

ALJ's RFC assessment is not internally inconsistent and is

supported by substantial record evidence.

25 B. Weight Given to Opinions

To the extent Hines also challenges the ALJ's decision to

assign little weight to the opinions that arguably conflict with

his RFC assessment, I conclude that the ALJ properly exercised

his discretion to resolve conflicts in the record.

An ALJ must consider a number of factors in weighing

medical source opinions, including the nature and extent of the

source's relationship with the applicant, whether the source

provided evidence in support of the opinion, whether the opinion

is consistent with the record as a whole, and whether the

medical source is a specialist in the field.

(c)(1-6). The fact that a medical opinion is from an

"acceptable medical source" is a factor that may justify giving

that opinion greater weight than an opinion from a medical

source who is not an "acceptable medical source." SSR 06-03P,

, at * 5 (Aug. 9, 2006).

Here, the ALJ gave little weight to Counselor Hayes's

September 2008 opinion that Hines was not capable of gainful

employment. As the ALJ noted, Hayes had only been treating

Hines for two months at the time she rendered her opinion, and

Hines's counseling sessions ended three months later, with

treatment notes indicating that her condition had improved.

Moreover, Hayes's opinion is inconsistent with other medical

26 source opinions, and she is not an "acceptable medical source."

; 416.902. Accordingly, I find no error in

the ALJ's decision to give her opinion little weight.

The ALJ also gave little weight to Nurse Manning's opinion

that Hines received frequent treatment for severe anxiety at the

emergency room and the NAHC. The ALJ acknowledged that certain

treatment notes indicate that Hines's chest pains could be

related to anxiety, but he instead relied upon the fact that

both emergency and NAHC providers for the most part did not

attribute her chest pain to anxiety. Although the record

"arguably could support a different conclusion," Irlanda Ortiz,

, Hines's treatment notes adequately support the

ALJ's decision, as her chest pain was most frequently diagnosed

as either costochondritis or chest wall pain.4 As the ALJ noted.

4 Hines also argues that the ALJ failed to recognize that many of her physical complaints and her compulsion to seek frequent medical attention were manifestations of anxiety. Her Statement of Disputed Facts describes additional treatment records indicating complaints of back, neck, shoulder, arm, or knee pain at various times between October 2003 and October 2010. The two treatment notes indicating that doctors recommended stress management in response to Hines's complaints are included in the Joint Statement of Facts. The rest merely note that Hines complained of pain or numbness in different areas without any indication that doctors considered these to be due to anxiety. Accordingly, I agree with the Commissioner that those treatment notes do not support Hines's claim that the ALJ misunderstood her physical complaints. The ALJ properly resolved any conflict in the evidence. See Irlanda Ortiz,

("[T]he

27 moreover. Nurse Manning "is not a psychologist or psychiatrist

or even an acceptable medical provider." Tr. 15. Accordingly,

the ALJ was entitled to give little weight to the opinion.

Lastly, the ALJ discounted Dr. Warman's conclusion that it

would be difficult, though not impossible, for Hines to maintain

concentration and attendance and to follow a schedule. As the

ALJ explained, the opinion is inconsistent with other medical

opinions in the record, as well as Hines's activities of daily

living. The ALJ noted that she regularly attended medical

appointments, used the city bus, and wrote short stories, all of

which indicated greater ability than Dr. Warman assessed.

Because substantial evidence supports the ALJ's treatment of the

opinion evidence, a remand is not warranted on this basis.

C. Reliance on the Grid

To support his step five finding that Hines was not

disabled, the ALJ used the Grid5 to determine that jobs existed

in significant numbers in the national economy that Hines could

resolution of conflicts in the evidence is for the [ALJ], not the courts.") .

5 The Grid is a matrix that sets out different combinations of a claimant's age, education, work experience, and exertional capacity, and provides, as to each combination, whether the claimant is disabled. Sherwin v. Sec'y of Health & Human Servs.,

(1st Cir. 1982). "The ALJ simply selects the proper table and row based on the characteristics he finds the claimant to possess, and reads the decision, 'disabled' or 'not disabled' from the right-hand column in that row."

28 perform. Hines contends that the ALJ erred in doing so because

he was required to obtain vocational expert testimony to clarify

the effect of her nonexertional limitations on the occupational

base. I disagree.

The Grid allows the Commissioner to satisfy his burden at

step five without the opinion testimony of a vocational expert

when a claimant's limitations affect the strength requirements

of a job. Seavey,

; Ortiz v. Sec'y of Health &

Human Servs.,

(1st Cir. 1989). "In cases

where a nonexertional impairment significantly affects [a]

claimant's ability to perform the full range of jobs he is

otherwise exertionally capable of performing, the Secretary must

carry his burden of proving the availability of jobs in the

national economy by other means, typically through the use of a

vocational expert." Ortiz,

(quotations and

citations omitted).

An ALJ may rely on the Grid exclusively, however, if the

non-strength impairments "impose no significant restriction on

the range of work" a claimant can perform or if they only reduce

the occupational base "marginally."

With regard to mental

impairments, this determination involves the following inquiry:

"(1) whether a claimant can perform close to the full range of

unskilled work; and (2) whether [she] can conform to the demands

29 of a work setting, regardless of the skill level involved."

.

Here, the ALJ specifically determined that the use of the

Grid was appropriate because Hines's mental limitations "have

little or no effect on the occupational base of unskilled medium

work." Tr. 17. Substantial evidence supports the ALJ's

conclusion. The Commissioner has described the mental

capabilities required for unskilled work as follows:

the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.

SSR 85-15,

, at *4. Here, most medical sources

indicated that Hines could function satisfactorily in all three

areas. First, both examining and non-examining sources agreed

that Hines could understand, carry out, and remember simple

instructions. Second, Drs. Warman, Jamieson, and Hadi, as well

as treating Nurse Manning, all opined that Hines could interact

appropriately with supervisors and co-workers. Third, Drs.

Jamieson and Jasper indicated that Hines was only moderately

limited in her ability to cope with work changes, and Dr. Hadi

found a mild restriction in the area. According to the forms

the doctors filled out, an individual with a moderate limitation

"is still able to function satisfactorily." Accordingly, their

30 opinions support the ALJ's conclusion that, although Hines's

panic disorder was a "severe" impairment at step two, it did not

significantly compromise her capacity for unskilled work.

The First Circuit has recognized that moderate mental

limitations impose no significant restriction on the range of

work a claimant can perform. See Faicon-Cartagena,

("[S]ince the RFC [] reports indicate that claimant

was at the most moderately limited in areas of functioning

required for unskilled work, we conclude that they adequately

substantiate the ALJ's finding that claimant's mental impairment

did not affect, more than marginally, the relevant occupational

base."). The ALJ was, therefore, justified in concluding that

Hines's mental impairments did not preclude performance of

substantially the full range of unskilled work.

The related inquiry regarding the claimant's ability to

conform to the demands of a work environment is also satisfied

here. Conforming to the demands of a work setting involves

"getting to work regularly . . . and remaining in the workplace

for a full day." SSR 85-15,

, at *6. Medical

sources agreed that Hines was only moderately limited in her

ability to maintain attention and concentration and to perform

work activities within a schedule. Again, those moderate

limitations do not significantly erode Hines's potential

31 occupational base because they do not preclude satisfactory

performance in the relevant areas. Notably, the claimant in

Ortiz also was moderately limited in the exact same areas, and

the First Circuit agreed with the ALJ that "apart from [the

claimant] being relegated to jobs of an unskilled nature, the

claimant's capacity for the full range of light work was not

significantly compromised by his additional nonexertional

limitations."

. Finally, as in Ortiz, the

"claimant's characteristics did not position [her] near the

disabled/not disabled dividing line under the Grid rules." See

. Even if Hines had been illiterate, the Grid

would have directed a finding of not disabled. See 20 C.F.R.

P t . 404, Subpt. P, App 2, Table No. 3, Rules 203.25-203.31.

Accordingly, I find no error in the ALJ's reliance on the

Grid. I echo, however, the First Circuit's cautionary message

that "an ALJ typically should err on the side of taking

vocational evidence when a [nonexertional] limitation is present

in order to avoid needless agency rehearings." Ortiz,

8.

IV. CONCLUSION

For the foregoing reasons, Hines's motion to reverse the

decision of the Commissioner (Doc. No. 13) is denied. The

32 Commissioner's motion to affirm (Doc. No. 16) is granted. The

clerk shall enter judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

July 9, 2012

cc: Janine Gawryl, Esq. Gretchen Leah Witt, Esq.

33