Susan Gould v . SSA 11-CV-485-SM 10/31/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Susan Gould, Claimant

v. Case N o . 11-cv-485-SM Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration, Defendants

O R D E R

Pursuant to

(g), Claimant Susan Gould, moves

to reverse the Commissioner’s decision denying her application

for Social Security Disability Insurance Benefits under Title II

of the Social Security Act,

(the “Act”). The

Commissioner objects and moves for an order affirming his

decision.

Factual Background

I. Procedural History

On June 2 , 2009, claimant filed an application for social

security disability insurance benefits (“DIB benefits”), alleging

that she had been unable to work since July 2 9 , 2007. She

asserted eligibility for benefits based on disabilities due to

“constant pain and pressure, fatigue, diminished motor skills,

diminished cognitive abilities, memory loss, shortness of breath,

dizziness, numbness in her feet, and depression.” J t . Stmt., doc. n o . 1 1 , pg. 2 . Her application for benefits was denied and

she requested an administrative hearing before an Administrative

Law Judge (“ALJ”).

On February 2 5 , 2011, claimant (who was then 39 years o l d ) ,

her attorney, and an impartial vocational expert appeared before

an ALJ. Claimant’s husband testified on her behalf. On March

1 7 , 2011, the ALJ issued his written decision, concluding that

claimant was not disabled. On August 1 8 , 2011, the ALJ’s

decision became the final decision of the Commissioner when the

Appeals Council denied claimant’s request for review.

Claimant then filed a timely action in this court, appealing

the denial of DIB benefits. Now pending are claimant’s “Motion

for Order Reversing Decision of the Commissioner” (document n o .

9 ) and the Commissioner’s “Motion for Order Affirming the

Decision of the Commissioner” (document n o . 1 2 ) .

II. Stipulated Facts

Pursuant to Local Rule 9.1(d), the parties submitted a Joint

Statement of Material Facts which, because it is part of the

court record (document n o . 1 1 ) , need not be recounted in this

opinion.

2 Standard of Review

I. Properly Supported Findings by the ALJ are Entitled to Deference.

Pursuant to

(g), the court is empowered “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.” Factual findings of the Commissioner are

conclusive if supported by substantial evidence.1 See

(g); Irlanda Ortiz v . Secretary of Health & Human Services,

(1st Cir. 1991). Moreover, provided the ALJ’s

findings are supported by substantial evidence, the court must

sustain those findings even when there may also be substantial

evidence supporting the contrary position. See Tsarelka v .

Secretary of Health & Human Services,

(1st Cir.

1988) (“[W]e must uphold the [Commissioner’s] conclusion, even if

the record arguably could justify a different conclusion, so long

as it is supported by substantial evidence.”). See also

Rodriguez v . Secretary of Health & Human Services,

(1st Cir. 1981) (“We must uphold the [Commissioner’s]

1 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison C o . v . NLRB,

(1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Consolo v . Federal Maritime Comm’n.,

(1966).

3 findings in this case if a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate to

support his conclusion.”).

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v . Secretary

of Health & Human Services,

7 , 40 (1st Cir. 1984)

(citing Sitar v . Schweiker,

9 , 22 (1st Cir. 1982)). It

is “the responsibility of the [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

[Commissioner], not the courts.” Irlanda Ortiz,

(citation omitted). Accordingly, the court will give deference

to the ALJ’s credibility determinations, particularly when those

determinations are supported by specific findings. See

Frustaglia v . Secretary of Health & Human Services,

(1st Cir. 1987) (citing Da Rosa v . Secretary of Health &

Human Services,

4 , 26 (1st Cir. 1986)).

II. The Parties’ Respective Burdens

An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

4 to result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.”

(d)(1)(A). The Act places a heavy initial burden on

claimant to establish the existence of a disabling impairment.

See Bowen v . Yuckert,

(1987); Santiago v .

Secretary of Health & Human Services,

, 5 (1st Cir.

1991). To satisfy that burden, claimant must prove that her

impairment prevents her from performing her former type of work.

See Gray v . Heckler,

(1st Cir. 1985) (citing

Goodermote v . Secretary of Health & Human Services,

, 7

(1st Cir. 1982)). Nevertheless, claimant is not required to

establish a doubt-free claim. The initial burden is satisfied by

the usual civil standard: a “preponderance of the evidence.” See

Paone v . Schweiker,

(D. Mass. 1982).

If claimant demonstrates an inability to perform her

previous work, the burden shifts to the Commissioner to show that

there are other jobs in the national economy that she can

perform. See Vazquez v . Secretary of Health & Human Services,

, 2 (1st Cir. 1982). See also

(g). If the Commissioner shows the existence of other

jobs that claimant can perform, then the overall burden to

demonstrate disability remains with claimant. See Hernandez v .

5 Weinberger,

(1st Cir. 1974); Benko v .

Schweiker,

(D.N.H. 1982).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) claimant’s subjective claims of pain and

disability, as supported by the testimony of claimant or other

witnesses; and (3) claimant’s educational background, age, and

work experience. See, e.g., Avery v . Secretary of Health & Human

Services,

9 , 23 (1st Cir. 1986); Goodermote,

. When determining whether a claimant is disabled, the ALJ

is also required to make the following five inquiries:

(1) whether claimant is engaged in substantial gainful activity;

(2) whether claimant has a severe impairment;

(3) whether the impairment meets or equals a listed impairment;

(4) whether the impairment prevents claimant from performing past relevant work; and

(5) whether the impairment prevents claimant from doing any other work.

. Ultimately, a claimant is disabled only if

his:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age,

6 education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(d)(2)(A).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Commissioner’s motion to affirm his

decision.

Discussion

I. Background — The ALJ’s Findings

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory five-

step sequential evaluation process described in

. He first determined that claimant had not been

engaged in substantial gainful employment since her alleged onset

of disability. Next, he concluded that claimant has the severe

impairments of Chiari malformation and obesity, and further found

that she did not have any severe mental impairments.

Administrative Record (“Admin. Rec.”) 1 3 . Nevertheless, the ALJ

determined that those impairments, regardless of whether they

were considered alone or in combination, did not meet or equal

7 one of the impairments listed in Part 404, Subpart P, Appendix 1 .

at 1 2 .

Next, the ALJ concluded that claimant retained the residual

functional capacity to perform “light work . . . except she

should never climb ladders, ropes, or scaffolds, but could

perform all other postural activities occasionally . . . [and]

must avoid all exposure to heights.”

at 1 5 . The ALJ

concluded, therefore, that claimant “was capable of performing

past relevant work as a bank teller, cashier, and hotel desk

clerk,” and other jobs in the national economy. Id. at 19-20.

Consequently, the ALJ concluded that claimant was not

“disabled” at any time relevant to his decision. Id. at 2 0 .

On appeal from the Commissioner’s final decision, claimant

argues that the ALJ improperly assessed her mental limitations

and erred in discounting her allegations of disabling pain.

II. Claimant’s Mental Impairment

Claimant contends that the ALJ’s assessment of her mental

impairment was erroneous in two respects. First, she says, the

ALJ committed reversible error at Step 2 when he found that her

mental impairment was not severe. She posits, secondly, that the

8 ALJ improperly assessed the opinion of her treating psychologist,

Dr. Tonya Warren.

A. Step 2

The ALJ found that claimant had a medically determinable

mental impairment of “adjustment disorder.” Admin. Rec. 1 4 . He

concluded, however, that, for claimant, the “adjustment disorder

is not a severe impairment.” Id. Specifically, he found that

claimant's mental impairment “does not cause more than a minimal

[effect] on her ability to perform basic mental work activities.”

Id. Claimant challenges that finding.

“It is well established in this circuit ‘that the Step 2

severity requirement is ... to be a de minimus policy, designed

to do no more than screen out groundless claims.’” Mohammad v .

Astrue,

, at *7 (D.N.H. April 4 , 2011) (quoting

McDonald v . Secretary of Health & Human Services,

(1st Cir. 1986)). Accordingly, the ALJ may make a finding

of “‘non-severe’” at Step 2 only where, “‘even if [the claimant]

were of advanced age, had minimal education, and a limited work

experience,’” the impairment “‘would not prevent . . . her from

engaging in’ . . . substantial gainful activity.” McDonald,

(internal alterations omitted) (quoting SSR

85–28,

, at * 3 ) . In other words, the Commissioner

9 may summarily deny benefits at Step 2 only “‘to those applicants

with impairments . . . which could never prevent a person from

working.’”

at 1125 (quoting Baeder v . Heckler,

(3d Cir. 1985)).

Although, here, the ALJ at Step 2 discussed claimant's

mental impairment in some detail, he erred in finding that

claimant had not met the de minimus showing. Claimant's medical

records disclose that the consultative psychologist diagnosed her

with “adjustment disorder, with mixed disturbance of anxiety and

depression.” J t . Stmt., doc. n o . 1 1 , pg. 1 3 . Similarly,

claimant’s treating psychologist, Dr. Tonya Warren, diagnosed her

as having “adjustment disorder with anxiety.”

at pg. 1 6 .

Over the course of several sessions, Dr. Warren treated claimant

for the disorder through “cognitive behavior therapy, supportive

therapy, and interpersonal treatment.”

Dr. Warren opined

that claimant had “marked” and “severe” limitations in several

areas of functioning as a result of her disorder.

at pg. 1 7 .

On this record, which consists of undisputed diagnoses of

“adjustment disorder,” a course of psychological treatment for

the disorder, and a medical opinion from claimant’s treating

psychologist that the limitations stemming from the disorder are

more than “minimal,” claimant plainly met her de minimus Step 2

10 burden with respect to her mental impairment. See Mohammad,

, at *7 (de minimus burden at Step 2 was met where

claimant “was diagnosed by several physicians ... as having a

seizure disorder” and was being treated for i t ) .

Nevertheless, although the ALJ erred at Step 2 , it appears

that the error was harmless. A Step 2 error is not grounds for

reversal of the Commissioner’s decision where the ALJ “continued

through the remaining steps and considered all of the claimant's

impairments.” Syms v . Astrue,

, at *1 (D.N.H.

Sept. 8 , 2011) (DiClerico, J ) . After finding at Step 2 that

claimant had the severe impairments of “Chiari malformation and

obesity,” Admin. Rec. 1 3 , the ALJ proceeded through the remaining

steps of the five-part sequential analysis. Moreover, in the

course of determining claimant’s RFC, the ALJ considered

claimant’s mental limitations. He discussed Dr. Warren’s opinion

about the severity of claimant’s mental limitations, accorded

that opinion “little weight,” and gave reasons for doing s o .

Admin. Rec. 1 8 . The ALJ’s Step 2 error was, then, harmless. See

Syms,

, at *1 (citing Lewis v . Astrue,

(9th Cir. 2007) (“The decision reflects that the ALJ

considered any limitations posed by the bursitis at Step 4 . As

such, any error that the ALJ made in failing to include the

bursitis at Step 2 was harmless.”)).

11 B. Dr. Warren’s Opinion

Claimant next argues that, in determining her RFC, the ALJ

improperly assessed the evidence of limitations arising from her

mental impairment. In particular, she objects to the ALJ’s

assessment of Dr. Warren’s opinion that her mental impairment

markedly and severely limits her ability to function in relevant

areas. She contends the ALJ erred in according only “little

weight” to Dr. Warren’s opinion.2

Claimant began seeing Dr. Warren in 2009, and saw her seven

additional times through December, 2010. On January 3 1 , 2011,

Dr. Warren “completed a check-mark worksheet opinion regarding

Plaintiff’s mental limitations . . . . [and] opined that

Plaintiff would have extreme or marked limitations,” J t . Stmt.,

doc. n o . 1 1 , pg. 1 7 , i n , among other things, “maintaining

attention and concentration for four two-hour segments per day,

completing a normal workday and workweek,” “maintain[ing] regular

attendance,” “understanding, remembering, and carrying out

detailed instructions, regularly performing activities within a

schedule, performing at a consistent pace, being punctual, acting

appropriately with the public, responding to criticism from

supervisors, and responding to changes in the work setting.”

2 The VE testified that the limitations found by Dr. Warren would preclude full-time work.

12 Admin. Rec. 1 8 . Dr. Warren also checked-off the “moderate”

limitations box for “remembering, understanding, and carrying out

short and simple 1-2 step work procedures with simple

instructions, sustaining an ordinary routine, working alongside

others, asking questions, and maintaining neatness and

cleanliness of the work areas with customary tolerance.”

In discussing the weight that will be ascribed to the

opinions of “treating sources,” the pertinent regulations

provide:

Generally, we give more weight to opinions from [the claimant's] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) ... When we do not give the treating source's opinion controlling weight, we apply the factors listed [in this section] in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give [the claimant's] treating source's opinion.

(c)(2). See also SSR 96–2p, Policy

Interpretation Ruling Titles II and XVI: Giving Controlling

Weight to Treating Source Medical Opinions,

(July

2 , 1996).

Notably, a treating provider’s opinion may be entitled to

less weight when it is in a “worksheet” or checklist format,

13 unaccompanied by explanation. See Halloran v . Barnhart,

8 , 32 (2d Cir. 2004) (a provider’s checkmark opinion on a

standardized multiple choice form was “not particularly

informative”). See also Pacheco v . Astrue,

, at *4

(D.N.H. Feb. 2 4 , 2009);

(c)(3) (“The better

an explanation a source provides for an opinion, the more weight

we will give that opinion.”).

Here, in according “little weight” to Dr. Warren’s January

2011, checklist opinion, the ALJ explained that Dr. Warren’s

treatment notes from sessions with claimant “do not provide a

basis for these restrictions.” Admin. Rec. 1 8 . The ALJ pointed

out that in her April 2010, notes, Dr. Warren states that

claimant’s short-term memory problem was “mild” and “most likely

the result of stress.”

And when Dr. Warren met with

claimant in June of 2009, she noted that claimant “displayed an

appropriate appearance and affect, normal mood and speech, and

intact cognitive functioning.” J t . Stmt., doc. n o . 1 1 , pg. 1 2 .

At that time, Dr. Warren “assigned [claimant] a global assessment

of functioning (GAF) score of 61-70,”

which is indicative of

mild symptoms. Boston v . Astrue,

, at *5 n.14

(D.N.H. June 2 2 , 2011) (Barbadoro, J . ) .

14 The ALJ also observed that claimant’s treatment history with

other providers does “not document excessive no-shows or lateness

for appointments that would support the opinion that the claimant

could not maintain regular attendance or sustain an ordinary

routine”; they do not describe claimant “as unable to interact

appropriately”; and they note claimant’s “independent activities

of daily living.”

Although, as claimant points out, some treatment notes from

her nurse practitioner can be viewed as corroborating Dr.

Warren’s opinion, the same nurse, in June 2010, noted that

claimant “denied anxiety, depression, or sleep disturbances” and

“exhibited an appropriate affect and demeanor.” J t . Stmt., doc.

no. 1 1 , pgs. 16-17. In addition, as the ALJ noted (albeit in his

Step 2 discussion), the examining consultative psychologist, Dr.

Anna Hutton, diagnosed claimant with adjustment disorder, but did

not endorse marked and extreme limitations resulting from that

mental impairment (although she noted some limitations due to

pain). Admin. Rec. 1 4 . The state agency reviewing psychologist,

Dr. J. Coyle, after considering claimant’s medical history,

including Dr. Hutton’s report, found that claimant’s “adjustment

disorder with anxiety and depression” resulted in only “mild”

limitations in daily activities, social functioning, maintaining

concentration, persistence, and pace. J t . Stmt., doc. n o . 1 1 ,

15 pg. 1 8 . Finally, as the ALJ noted, claimant did not pursue

therapy in 2009 “as she felt her issues stemmed from pain and

medical symptoms and could not be addressed psychologically.”

See Perez Torres v . Secretary of Health & Human Services,

(1st Cir. 1989) (lack of treatment is

relevant to ALJ’s inquiry into severity of impairments).

In light of the foregoing, the court cannot conclude that

the ALJ erred in his assessment of Dr. Warren’s opinion, nor in

his overall assessment of limitations resulting from claimant’s

mental impairment. To be sure, there is substantial evidence in

the record supporting claimant's assertion that her mental

disorder makes life quite difficult for her, as Dr. Warren

opined. Importantly, however, there is also substantial evidence

in the record to support the ALJ's conclusion that she was not

disabled. The ALJ resolves evidentiary conflicts, and when the

ALJ’s determination is supported by substantial evidence it must

be affirmed. See Irlanda Ortiz,

.

III. Claimant’s Allegations of Disabling Pain

When a claimant demonstrates that her impairment could

reasonably be expected to produce the symptoms she alleges, the

ALJ is required to determine the intensity, persistence, and

limiting effects of those symptoms.

(c). In

16 making that determination, the ALJ must evaluate the claimant's

“statements about the effects of her symptoms ... in light of the

medical evidence and other evidence such as precipitating and

aggravating factors, medications and treatment, and how the

symptoms affect the applicant's daily living.” Syms,

, at *4 (citing

(c)(3)). Moreover,

“[p]art of the ALJ's credibility determination necessarily

involves an assessment of a claimant's demeanor, appearance, and

general ‘believability.’” Guerin v . Astrue,

, at

*6 (D.N.H. June 2 4 , 2011).

Whatever the ALJ’s credibility determination, he must

provide an explanation for it which “make[s] clear to the

individual and to any subsequent reviewers the weight [he] gave

to the [claimant’s] statements and the reasons for that weight.”

SSR 96-7p,

, at * 2 .

Claimant here argues that the ALJ did not, as required,

“include a proper explanation for [his] credibility finding,” and

“failed to properly assess M s . Gould’s subjective complaints of

pain.” Document N o . 9-2, pg. 7 . Neither contention is

supportable.

17 A. ALJ’s Explanation for His Credibility Findin

Claimant testified that she is “limited by severe

intermittent headaches, head pain, neck pain, shoulder pain, and

back pain,” which, she says, “contributed to make her confused

and easily overwhelmed.” J t . Stmt., doc. n o . 1 1 , pg. 1 8 . She

further testified that her symptoms “snowballed after her

surgery” for Chiari malformation.

Resulting limitations,

according to claimant, include “difficulty finishing her

housework and playing with her child”; becoming overwhelmed, such

that her “brain would ‘shut down’”; “difficulty carrying the

laundry”; and a need to “lay down at least three times a day.”

In rejecting claimant’s allegations of disabling pain, the

ALJ stated:

Although the claimant may experience pain and numbness in her body, this has not been established through substantial evidence to be of disabling proportions. Accordingly, the undersigned cannot credit the claimant’s testimony and allegations regarding pain to the extent she has alleged.

Admin. Rec. 17-18. Claimant characterizes this credibility

finding as “nothing more than a generalized statement” and “the

only explanation that the ALJ gives for discrediting years worth

of medical records.” Doc. N o . 9-2, pg. 8 .

18 Granted, when taken out of context, the ALJ’s conclusion

seems, well, conclusory. But read in context, the statement

constitutes a summary finding that concludes a multi-paragraph

discussion of evidence that the ALJ expressly, and properly,

considered, and which was relevant to his credibility

determination under 20 C.F.R. 416.929(c). See Admin. Rec. 15-17.

Moreover, the ALJ’s reasons (i.e., his “explanation”) for his

credibility finding are apparent throughout his discussion of the

evidence. He points out, for example, the inconsistency between

claimant’s prior report of pain with her hearing testimony; the

broad scope of claimant’s daily activities; and the consultative

examiner’s observations of claimant’s posture, gait, demeanor,

and mood. See Admin. Rec. 1 7 . In compliance with SSR 96-7p, the

ALJ’s credibility finding, therefore, unquestionably “make[s]

clear to the [claimant] and to any subsequent reviewers what

weight the adjudicator gave to the individual’s statements and

the reasons for that weight.” SSR 96-7p,

, at * 2 .

B. The ALJ’s Assessment of the Evidence

The court also necessarily rejects claimant’s argument that

the ALJ failed to properly assess her subjective complaints of

pain. As noted, the ALJ pointed to substantial evidence that

tended to undermine claimant’s allegations. In addition, the ALJ

found claimant’s allegations of disabling symptoms inconsistent

19 with the fact that her treating neurosurgeon released her with no

activity restrictions and no need to return for further

treatment. Admin. Rec. 1 6 . The ALJ also gave great weight to

the opinion of the state agency reviewing physician, Dr. Hugh

Fairley, that claimant was capable of work at the light

exertional level.

The court finds, therefore, that substantial evidence

supports the ALJ’s determination that claimant’s allegations of

disabling pain are not credible.

Conclusion

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

decision of the Commissioner (document n o . 9 ) is denied. The

Commissioner's motion to affirm his decision (document n o . 12) is

granted. The Clerk of Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

Steven J. McAuliffe Jnited States District Judge

October 31, 2012

cc: Kelie C. Schneider, Esq. Christopher J. Seufert, Esq. Robert J. Rabuck, AUSA

20