Comeau v. SSA CV-12-478-JL 11/1/13

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Kenneth M . Comeau

v. Civil N o . 12-cv-478-JL Opinion N o .

Carolyn W . Colvin, Acting Commissioner, Social Security Administration

MEMORANDUM ORDER

Kenneth M . Comeau has appealed the Social Security

Administration’s denial of his applications for Social Security

Disability Insurance (“SSDI”) and Supplemental Security Income

(“SSI”). An administrative law judge at the SSA (“ALJ”) ruled

that, despite Comeau’s severe impairments (including major

depressive disorder, panic disorder, and post-traumatic stress

disorder), he retains the residual functional capacity (“RFC”) to

perform jobs that exist in significant numbers in the national

economy, and, as a result, is not disabled. See

(a), 416.905(a). The Appeals Council later denied

Comeau’s request for review of the ALJ’s decision, see

§§ 404.968(a), 416.1479, so the ALJ’s decision became the SSA’s

final decision on Comeau’s application, see id. §§ 404.981,

416.1481. Comeau appealed the decision to this court, which has

jurisdiction under

(g) (Social Security). Comeau has filed a motion to reverse the decision. See L.R.

9.1(b)(1). He argues that the ALJ made three errors: (1) giving

great weight to the opinions of a state agency psychologist who

had never treated Comeau, while giving little weight to the

opinions of a psychiatrist who had, (2) finding that Comeau’s

complaints of his symptoms were not fully credible, and (3) due

to those errors, asking a vocational expert (“VE”) to opine as to

Comeau’s employability based on a mistaken view of his ability to

interact with other people.

The Commissioner of the SSA has cross-moved for an order

affirming the ALJ’s decision. See L.R. 9.1(d). The Commissioner

argues that: (1) the ALJ supportably chose to credit the

relevant opinions of the state agency pyschologist, rather than

the treating psychiatrist, (2) the ALJ also supportably chose not

to fully credit Comeau’s relevant complaints, and (3) as a

result, the ALJ’s hypothetical question to the VE expressed a

supportable view of Comeau’s ability to interact with others. As

explained fully below, the court agrees with the Commissioner,

and therefore grants his motion to affirm (and denies Comeau’s

motion to reverse) the ALJ’s decision.

I. Applicable legal standard

“Judicial review of a Social Security claim is limited to

determining whether the ALJ used the proper legal standards and

2 found facts upon the proper quantum of evidence.” Ward v . Comm’r

of Social Security,

5 2 , 655 (1st Cir. 2000) (citing

Nguyen v . Chater,

1 , 35 (1st Cir. 1999)). If the ALJ’s

factual findings were supported by “substantial evidence,” they

are “conclusive,” even if the court disagrees with the ALJ, and

even if other evidence supports a contrary conclusion.

(g); see also, e.g., Nguyen, 172 F.3d at 3 5 . Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Becker v . Sec’y of

Health & Human Servs.,

4 , 36 (1st Cir. 1990) (quoting

Richardson v . Perales,

(1971)).

That standard is not, however, “merely [a] rubber stamp [of]

the ALJ’s decision.” Scott v . Barnhart,

(7th

Cir. 2002) (quotation and bracketing omitted). If the ALJ’s

decision was based on “a legal or factual error,” or otherwise

unsupported by substantial evidence, then it must be reversed and

remanded under § 405(g). Manso-Pizarro v . Sec’y of Health &

Human Servs.,

5 , 16 (1st Cir. 1996); see also, e.g.,

Johnson, 597 F.3d at 411; Nguyen, 172 F.3d at 35 (noting that an

ALJ’s findings are not conclusive where they are “derived by

ignoring evidence, misapplying the law, or judging matters

entrusted to experts”).

3 II. Background

Comeau, who was 30 years old at the outset of his claimed

disability, lives in his mother’s house with four of his children

under the age of 15 (a fifth child lives with that child’s

mother). Comeau’s mother normally takes care of the household

chores, as well as getting the children off to school in the

morning. Comeau also makes no payment toward the household

expenses. He has held five different jobs in his life, one of

them for 18 months and the others for less than a year each. In

August 2009, he was fired from his last job, as a picker in a

warehouse, after five months.

In April 2010, Comeau was hospitalized for several days

after suffering respiratory failure due to an asthma attack and

becoming unresponsive. In a visit to his primary care doctor two

months or so later, Comeau reported feeling “some emotional fall-

out” from the hospitalization. Comeau also announced that he was

applying for disability benefits due to his severe asthma. After

retaining counsel, Comeau in fact filed an application with the

SSA in June 2010, seeking both disability insurance benefits and

supplemental security income. Comeau claimed to have been

disabled as of August 3 , 2009, the last time he worked.

For purposes of his application, Comeau underwent a

comprehensive psychological examination, conducted in September

4 2010 by D r . Lawrence Jasper. Jasper diagnosed Comeau with post-

traumatic stress disorder (“PTSD”), as well as amnestic disorder

due to his recent episode of respiratory failure. So far as the

record indicates, Comeau had no prior history of any mental or

psychological problems. In relevant part, Jasper opined that

Comeau was unable to “interact appropriately and communicate

effectively” with “friends, landlord [sic], fellow employees or

supervisors,” but capable of doing so with “family members and

neighbors.” Jasper cautioned, however, that Comeau was “highly

disengaged at this time, so that behavioral ratings are

difficult.”

A pyschiatrist for the State of New Hampshire, D r . Laura

Landerman, later assessed Comeau’s mental impairments by

reviewing his medical records for the period beginning in

February 2010 (two months or so before his hospitalization) and

ending in September 2010, after his examination by Jasper.

Landerman concluded, in relevant part, that Comeau suffered from

moderate limitations in understanding, remembering, and carrying

out detailed instructions, as well as in completing a normal work

week without interruptions and performing at a consistent pace

without unreasonable periods of rest, and in responding

appropriately to changes in the work setting. Landerman also

opined, however, that Comeau was “not significantly limited” in

5 any other category of understanding and memory, concentration and

persistence, adaptation or social interaction--including the

ability to “interact appropriately with the general public,” “ask

simple questions or request assistance,” “accept instructions and

respond appropriately to criticism from supervisors,” and “get

along with coworkers or peers.”

In October 2010, the SSA informed Comeau that it had denied

his application, deeming him “capable of full time work with

environmental limitations . . . due to [his] asthma,” noting that

he “retain[ed] the ability to remember locations and work-like

procedures, maintain attention and concentrate for extended

periods of time,” as well as “to maintain a schedule and

accommodate to changes in a work setting.” Through counsel,

Comeau sought a hearing on his application before an ALJ.

Comeau subsequently visited the Greater Nashua Mental Health

Center, where he underwent an initial assessment by Rachel Mong,

a clinician, on December 1 0 , 2010. Mong observed that Comeau

“displayed anxiety and depression,” but that his “intellectual

functioning was average, and he was fully oriented with good

memory, adequate insight, and adequate judgment.” Comeau went on

to attend monthly therapy sessions with Mong from December 2010

through February 2011. During these sessions, Comeau reported

6 increased symptoms of anxiety, including mood swings, interrupted

sleep, and nightmares.

Dr. Phillip Santora, a psychiatrist at the Greater Nashua

Mental Health Center, completed a psychiatric evaluation of

Comeau in March 2011. Comeau reported nightmares and flashbacks

of his episode of respiratory failure, as well as panic attacks,

and presented with a depressed and anxious mood and affect.

Santora observed, however, that Comeau’s “thinking process was

clear and coherent; his immediate, recent, and past memory were

reasonably good . . . ; his attention span was fair; and his

insight and judgment were fair and at times good.” Santora

diagnosed Comeau with major depressive order, PTSD, and panic

disorder, and prescribed anti-depressant and anti-anxiety

medications. When Santora next saw Comeau, in April 2011, he was

still depressed and anxious, but his “recent and remote memory

were good, as were his attention span and concentration.”

Comeau had three more therapy sessions with Mong, on April

2 9 , May 1 3 , and May 2 7 , 2011. During the May 2011 sessions,

Comeau expressed worry over “being on his own” during a vacation

his mother had taken, since “his mother tends to take care of

him, and he is not expected to do much around the house.”

On June 2 4 , 2011, Santora (the psychiatrist at the Greater

Nashua Health Clinic) completed a “Psychiatric Evaluation” form

7 on Comeau. Consistent with his initial diagnosis, Santora wrote

that Comeau suffered from major depressive disorder, PTSD, and

panic disorder without agoraphobia. In a “functional evaluation”

part of the form, Santora indicated that Comeau suffered from

functional limitations in several areas, including:

• marked difficulty in certain daily living activities (shopping, using public transportation, and initiating and participating in activities independent of supervision or direction); • marked difficulty in certain areas of maintaining social functioning (interacting and actively participating in group activities and holding a j o b ) ; and

• deficiencies in task performance and concentration (completing tasks in a timely manner, and assuming increased mental demands associated with competitive work).

Santora indicated these limitations by checking blanks next to

certain activities listed on the form. Significantly, Santora

did not check the blanks used to indicate marked difficulties in

communicating clearly and effectively; cooperating with others

(including co-workers); responding to those in authority

(including supervisors); or responding without fear to strangers.

On the next page, entitled “Psychiatry,” Santora estimated

that Comeau had a “moderately severe” degree of impairment in his

ability to relate to other people and restriction of daily

8 activities and interests.1 Santora also opined that Comeau had

at least a fair ability t o , on a sustained basis, comprehend and

follow instructions, perform work requiring either frequent or

minimal contact with others, and perform simple, complex,

repetitive, and varied tasks. Santora also noted that Comeau had

a mild memory defect. Finally, asked “what degree of improvement

can reasonable [sic] be anticipated in the patient’s condition,”

Santora wrote, “too early to tell--only seen twice but expect

long term improvement with cont’d meds [and] counselling.”

An ALJ held a hearing on Comeau’s claim on September 2 3 ,

2011. Comeau and the VE were the only witnesses. Under

examination by his counsel, Comeau testified that he did not

1 Comeau states that, on this form, the term “moderately severe” was “defined as marked and severe.” That is incorrect. While “functional evaluation” page of the form defines “marked” as “a degree of restriction which is more than moderate but less than extreme or total,” no definition of “moderately severe” is given, either on that page or the following one, which is where the term appears. And “moderately severe” cannot mean the same thing as “severe,” because the form requires a choice among those two terms (as well as “none,” “mild,” and “moderate”). It should also be noted that, in defining both affective and anxiety disorders, the Social Security regulations use the term “marked,” rather than the term “moderately severe” (which the listings do not u s e ) .

0 4 , Subpt. P, App. 1 , P t . A , §§ 12.04.B, 12.06.B. It is at best unclear, then, precisely what the term “moderately severe,” as it appears on the form, means--including whether it means “marked” as Comeau suggests. But, even if it does, that makes no difference to the outcome here, because, as discussed in detail below, the ALJ did not err in giving little weight to Santora’s opinion that Comeau had a “moderately severe” limitation in his ability to interact with others.

9 think he could work full-time because he has “a hard time leaving

his house” and “being in public settings.” Comeau related that,

since his episode of respiratory failure, “when [he] would go out

in public places [he] would get so overwhelmed, [he] would have

to leave.” He said that, aside from attending his doctors’

appointments, he left his home only “maybe once a week” to visit

his brother’s house. Comeau described his typical day as divided

among watching TV, using Facebook, listening to music, and

sitting on his back porch, though he said he occasionally did

routine household chores like dishes or the laundry.

As noted at the outset, the ALJ found that Comeau suffered

from several severe impairments, see

(c),

416.920(c), i.e., asthma, major depressive disorder, panic

disorder, and PTSD, but that these impairments, either alone or

in combination, did not meet or exceed any listed impairment, see

§§ 404.1520(d), 416.920(d). The ALJ found that Comeau

retained the RFC to do light work, see

(b),

416.967(b), limited, in relevant part, “to work involving simple,

routine, repetitive . . . tasks. Additionally [he] has moderate

limitations in his ability to interact appropriately with the

public, co-workers, and supervisors” (footnote omitted). While

Comeau’s restrictions left him unable to perform his past

relevant work, see

§§ 404.1565, 416.965, the ALJ found that,

10 considering Comeau’s age, work experience, and RFC, there are

jobs that exist in significant numbers in the national economy

that he can perform, see id. §§ 404.1569, 416.969. Specifically,

the VE testified that, based on those factors, Comeau could

perform the requirements of occupations like hotel housekeeper,

office mail clerk, or office helper. So the ALJ ruled that

Comeau was not disabled. See id. §§ 404.1505(a), 416.905(a).

III. Analysis

Comeau argues that, in assessing his RFC, the ALJ made three

errors. First, Comeau charges, the ALJ improperly rejected

Santora’s opinions in favor of Landeman’s on the subject of

Comeau’s limitations, even though (a) Santora was in a treating

relationship with Comeau, while Landerman never even examined

him, and (b) Landerman’s opinion failed to account for the

records of Comeau’s treatment and evaluation at the Greater

Nashua Health Clinic, which did not even begin until after

Landerman had completed her evaluation. Second, Comeau argues

that the ALJ improperly rejected, as not fully credible, Comeau’s

complaints about the limiting effects of his symptoms. Third,

Comeau argues that, in light of these errors, the ALJ asked the

VE a hypothetical question about Comeau’s employability that

inaccurately “downgraded” his limitations. The court will

address these arguments in turn.

11 A. Medical opinion testimony

In attacking the ALJ’s ruling that Comeau is not disabled,

Comeau focuses on the ALJ’s decision to give “little weight” to

Santora’s opinions. This aspect of the ALJ’s decision, however,

had a limited effect on her assessment of Comeau’s RFC. In fact,

the ALJ’s finding that Comeau was “limited to work involving

simple, routine, repetitive . . . tasks” is consistent with

Santora’s opinion that Comeau has a fair ability to comprehend

and follow instructions, perform work requiring either frequent

or minimal contact with others, and perform complex, repetitive,

and varied tasks (as well as a good ability to perform simple

tasks). Comeau does not argue to the contrary.

Indeed, so far as Comeau suggests, or this court can

discern, the ALJ’s findings on Comeau’s limitations departed from

Santora’s opinions on just one point: Comeau’s ability to

interact with others. Specifically, while Santora opined that

Comeau suffered from a “moderately severe” degree of impairment

in his ability to relate to other people, the ALJ found that

Comeau has only “moderate limitations in his ability to interact

appropriately with the public, co-workers, and supervisors.” In

passing upon the ALJ’s weighing of Santora’s opinions, then, this

court need decide only whether the ALJ properly rejected

Santora’s finding that Comeau has a “moderately severe” degree of

12 impairment in relating to others and found, instead, that Comeau

has only “moderate limitations” in that ability. As explained

below, the ALJ made no legal error in coming to that conclusion,

which was supported by substantial evidence.

“If [the ALJ] find[s] that a treating source’s opinion on

the issue(s) of the nature and the severity of [the 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 [his] case record, [the ALJ]

will give it controlling weight.”

(c)(2); see

also

§ 404.1527(c)(2). While Santora is a “treating source,”

the ALJ did not give “controlling weight” to his opinion as to

Comeau’s ability to interact with others, because, among other

reasons, Santora’s “assessments are not supported by [his]

treatment notes or the remaining medical evidence of record, and

. . . were based on only two visits.” The ALJ’s approach thus

“appear[s] entirely in accord with § 416.927(c) which, again,

requires an ALJ to give controlling weight to a treating source’s

opinions only insofar as they are ‘well-supported.’” Santiago v .

Astrue,

4 8 , 8 .

In challenging the ALJ’s finding that Santora’s opinions

lacked support, Comeau charges that the ALJ “ignore[d] D r .

Santora’s extensive familiarity with [him] due not only to his

13 own treatment of him, but due to the counselling notes” of

Comeau’s sessions with Mong which, in Comeau’s eyes, serve to

“bolster[]” Santora’s opinion. But Comeau does not point to

anything in Mong’s notes of those sessions that supports

Santora’s conclusion that Comeau faced a “moderately severe”

degree of impairment--or, for that matter, any degree of

impairment--in his ability to relate to others.

Comeau further argues that the opinions of Jasper, the

psychologist who examined him in connection with his application

for disability benefits, also provided support for Santora’s

conclusions. Jasper had deemed Comeau unable to “interact

appropriately and communicate effectively” with “friends,

landlord, fellow employees or supervisors”--but capable of doing

so with “family members and neighbors.” As an initial matter,

then, Jasper’s opinion does not completely support Santora’s

broader view that Comeau suffered from a “moderately severe”

impairment in his “ability to relate to other people” at large.

In any event, the ALJ expressly gave “little weight” to Jasper’s

opinion that Comeau was “significantly limited in his activities

of daily living” (a category that includes interaction with

others) because, among other reasons, it was “inconsistent with

objective clinical findings.”

14 In challenging this conclusion, Comeau does not point to any

objective clinical findings that, in fact, demonstrate his

inability to interact with “friends, landlord, fellow employees,

or supervisors,” as Jasper opined. Instead, Comeau argues that

“[i]t is the role of medical experts, not the ALJ to evaluate

functional capacity, using the data like reported daily

activities and observed capacities.” In fact, “the final

responsibility for deciding” the issue of residual functional

capacity belongs to the ALJ.

(d)(2); see also

§ 404.1527(d)(2).2 In reaching that decision, moreover, the

ALJ must weigh opinions from medical sources according to a

number of factors, such as whether an opinion has “relevant

evidence to support [ i t ] , including medical signs and laboratory

findings.” Id. § 416.927(c)(3); see also id. § 404.1527(c)(3).

The ALJ did not err in relying on the absence of such data in

2 It is true, as Comeau points out, that “an expert’s RFC evaluation is ordinarily essential unless the extent of functional loss, and its effect on job performance, would be apparent even to a lay person.” Manso-Pizarro v . Sec’y of HHS,

5 , 17 (1st Cir. 1996) (quotation formatting omitted). As discussed infra, however, the record before the ALJ did contain a medical opinion that--contrary to what Santora had found--Comeau did not face “moderately severe” limitations in his ability to interact with others, namely, Landerman’s opinion that Comeau was “not significantly limited” in any area of social interaction. In light of that opinion, and the ALJ’s indication that she gave it great weight, Comeau’s repeated accusations that the ALJ determined his RFC merely by “interpret[ing] raw medical data” are clearly misplaced.

15 giving little weight to Jasper’s opinion that Comeau was

incapable of effectively and appropriately interacting with

friends, landlords, fellow employees, or supervisors.

Comeau does not identify anything else in his medical

records to support Santora’s opinion that Comeau faced a

“moderately severe” impairment in interacting with others--aside

from Jasper’s opinions and Mong’s treatment notes. But, for the

reasons just discussed, the ALJ did not err in finding that those

materials did not in fact support Santora’s opinion. It follows

that the ALJ did not err in finding that opinion unsupported by

the medical evidence of record and, as a result, not entitled to

controlling weight. See

§ 416.927(c)(2); see also id.

§ 404.1527(c)(2).

Despite that finding, of course, the ALJ was nevertheless

required to evaluate Santora’s opinion in light of the factors

specified by §§ 404.1527(c) and 416.927(c) in deciding what

weight to give i t , as well as to “give good reasons” for that

decision. Id. The ALJ did s o . First, the ALJ observed that

Santora’s opinions were “based on only two visits.” While Comeau

objects to that reasoning, “[l]ength of the treatment

relationship and the frequency of examination” are expressly

listed among the factors the ALJ must consider in deciding the

weight to give the opinions of a medical source. Id.

16 §§ 404.1527(c)(2)(i), 416.927(c)(2)(i). Santora himself made an

issue of his brief relationship with Comeau, qualifying his

prognosis with “too early to tell--only seen twice.” It would be

strange indeed if the ALJ could not rely on the very same

observation in giving little weight to Santora’s opinions.

Second, the ALJ observed that Santora’s opinion was “not

supported by [his] treatment notes.” In assessing a medical

opinion, as already discussed, the ALJ considers the degree of

“relevant evidence to support it,” id. § 404.1527(c)(2)(i); see

also 416.927(c)(2)(i), and, as also already discussed, Comeau has

not pointed to anything in Santora’s treatment notes that

supports his opinion that his patient faced a “moderately severe”

impairment when interacting with others. If anything, Santora’s

findings were to the contrary. While he found that Comeau had

“marked limitations” in “actively participating in group

activities,” Santora specifically did not find that Comeau had

any such degree of limitation in communicating clearly and

effectively; cooperating with others (including co-workers);

responding to those in authority (including supervisors); or

responding without fear to strangers.3 Santora’s report makes no

3 These negative findings also dispose of Comeau’s argument that the opinions of Jasper, on one hand, and Santora, on the other, “are congruent and reinforcing” (at least on the relevant point, i.e., Comeau’s ability to interact with others). Again, while Santora noted no marked limitations in Comeau’s ability to

17 effort to reconcile these findings with his conclusion that

Comeau nevertheless faced “moderately severe” limitations in

interacting with others. The ALJ did not err, then, in giving

that conclusion little weight.

Comeau also assails the ALJ’s decision to give “great

weight” to the opinions of Landerman, the state agency

psychiatrist who reviewed his records. Landerman concluded, in

relevant part, that Comeau was “not significantly limited” in the

ability to “interact appropriately with the general public,” “ask

simple questions or request assistance,” “accept instructions and

respond appropriately to criticism from supervisors,” and “get

along with coworkers or peers.” Comeau complains that Landerman

reached this conclusion even though “[s]he did not have all the

records from [Greater] Nashua Mental Health [Center] . . . or D r .

Santora’s report” (a temporal inevitability, of course, since

Comeau did not visit that clinic--or seek mental health treatment

from any source--until after Landerman rendered her opinion, and

the SSA relied on it in initially denying Comeau’s claim).

As already discussed, however, Comeau has identified nothing

in those records that supports Santora’s view of Comeau’s

communicate and cooperate with others, including co-workers and supervisors, Jasper opined that Comeau was in fact unable to interact or communicate appropriately or effectively with fellow employees or supervisors (among others). Those opinions are contradictory, not “congruent.”

18 difficulty in interacting with others. That crucial fact serves

to distinguish this case from Swanburg v . Astrue,

(Barbadoro, J . ) , on which Comeau heavily relies. There, Judge

Barbadoro reversed an ALJ’s decision to rely on the opinions of

state agency consultants as to the claimant’s RFC, observing that

an ALJ cannot do so if such opinions “are based on an incomplete

record, when later evidence supports the claimant’s limitations.”

at 1 7 . Here, again, the records generated after Landerman

reached her opinions as to Comeau’s social functioning contain no

“evidence” of his limitations in that area--aside from Santora’s

opinion that those limitations are “moderately severe,” which is

not only unsupported, but facially inconsistent with the balance

of his findings, as just discussed. Unlike in Swanburg, then,

the fact that Landerman “did not have the benefit of the treating

provider’s notes and opinions or the opportunity to explain [her]

reasons for discounting them,”

at 1 8 , does not undermine

those opinions, or the ALJ’s decision to place weight on them

rather than Santora’s unsupported opinion to the contrary.

As this court has recognized, an ALJ can rely “exclusively

on the assessments of non-testifying, non-examining physicians”

in adjudicating a claimant’s RFC, and conflicts between those

assessments and other medical testimony “are for the ALJ to

resolve.” Morin v . Astrue,

9 1 , 9-10 (citing Berrios

19 Lopez v . Sec’y of HHS,

2 7 , 431-32 (1st Cir. 1991) and

Tremblay v . Sec’y of HHS,

1 , 12 (1st Cir. 1982)).

Furthermore, “[t]he ALJ decision to resolve that conflict against

the claimant should be affirmed if “‘that conclusion has

substantial support in the record.’”

(quoting Tremblay,

2 ) . For the reasons just discussed, substantial

evidence supports the ALJ’s decision to rely on Landerman’s

opinion that Comeau was not significantly limited in any area of

social interaction, rather than Santora’s opinion that Comeau had

a “moderately severe” limitation in his ability to interact with

other people, and to find, accordingly, that Comeau had at worst

“moderate limitations in his ability to interact appropriately

with the public, co-workers, and supervisors.” Indeed, Santora

himself--whose opinions Comeau so vigorously defends on this

appeal--specifically found that Comeau had no marked limitations

in communicating clearly and effectively; cooperating with others

(including co-workers); responding to those in authority

(including supervisors); or responding without fear to strangers.

B. Comeau’s credibility

Comeau argues that the ALJ also erred in assessing Comeau’s

statements as to his “isolative symptoms,” in particular, that he

“specifically avoids . . . contacts” with “the outside world.”

As Comeau notes, an ALJ must evaluate such statements according

20 to SSR 96-7p, Titles II and XVI: Evaluation of Symptoms in

Disability Claims: Assessing the Credibility of an Individual’s

Statements,

(S.S.A. 1996). SSR 96-7p “outlines a

specific staged inquiry that consists of the following questions,

in the following order: (1) does the claimant have an underlying

impairment that could produce the symptoms he or she claims?; (2)

if s o , are the claimant’s statements about his or her symptoms

substantiated by objective medical evidence?; and (3) if not, are

the claimant’s statements about those symptoms credible?”

Griffiths v . Astrue, N o . 11-cv-195,

at *9 (D.N.H.

Apr. 3 , 2012) (citations omitted), rept. & rec. adopted,

(D.N.H. May 2 , 2012).

Here, the ALJ found that Comeau had impairments that could

produce his claimed symptoms, including “social isolation,” but

that “the medical record” did not support that claim. As already

discussed at length, Comeau has not pointed to anything in his

medical records where he reported difficulty in interacting with

his fellow man, or other forms of “social isolation.” Again,

Jasper deemed Comeau unable to interact with “friends, landlord,

fellow employees, or supervisors,” but the ALJ rejected that

opinion as “inconsistent with objective clinical findings.” As

also already discussed at length, Comeau has not pointed to any

such findings, and Santora subsequently reached a contrary

21 conclusion, in any event. The ALJ supportably found, then, that

Comeau’s medical records did not support his claimed “social

isolation.” See, e.g., Widlund v . Astrue, N o . 11-cv-371,

, at *16 (D.N.H. Apr. 1 6 , 2012) (McCafferty, M . J . ) ,

rept. & rec. adopted,

(D.N.H. May 1 4 , 2012).

The ALJ also supportably found that Comeau’s allegations of

“social isolation” were not credible. As already noted, Comeau

testified at the hearing that he gets “so overwhelmed” in “public

places” that he has “to leave the store . . . or go sit out in

the car,” with the result that he “does not go a lot of places.”

Comeau testified that he does not do the grocery shopping--his

mother does--and that he leaves his house “maybe once a week,” to

go to his “brother’s house for a little bit.” The ALJ noted

Comeau’s testimony that he has “difficulty with social settings,

which can cause panic attacks,” but found his “allegations

regarding his daily activities not fully credible,” because,

among other things, “when [his] mother went away on vacation for

a few weeks, [he] was responsible for daily activities in the

household. There is nothing in the medical record that indicates

[he] was afraid that he could not complete those activities, only

a concern that he had to.”

Of course, “[o]ne strong indication of the credibility of an

individual's statements is their consistency . . . with other

22 information in the case record.” SSR 96-7p,

, at

*5. Comeau points to nothing in his medical records--which

include notes of two different sessions with Mong in May 2011,

while his mother was away on vacation--suggesting that, in her

absence, his “social isolation” left him unable to handle the

affairs of his household, including the grocery shopping his

mother normally handles (which would almost certainly have been a

necessary chore for a family of five, including four school-aged

children, at some point during his mother’s three-week vacation).

In attacking this reasoning, Comeau argues that, simply

“because [he] took care of himself for a few weeks in May, 2011

when his mother was away,” the ALJ could not have “determined he

had adequately demonstrated [activities of daily living]

commensurate with the ability to work.” The ALJ, however, did

not rely on evidence of Comeau’s ability to care for himself

while his mother was away as the basis for her ultimate

conclusion that Comeau had the “ability to work” (i.e., was not

disabled). To the contrary, she relied on that evidence as the

basis for her finding that his allegations of “social isolation”

were not fully credible. That was proper. Indeed, “‘[w]hile a

claimant’s performance of household chores or the like ought not

to be equated to an ability to participate effectively in the

work force, evidence of daily activities can support a negative

23 credibility finding.’” Mason v . Astrue,

(McAuliffe, J.) (quoting Teixeira v . Astrue,

4 0 ,

347 (D. Mass. 2010)).

The bottom line is that, aside from Jasper’s unsupported

opinions, Comeau has pointed to nothing in his medical records to

corroborate his claimed inability to go out in public--and that

Santora, the very medical source whose views Comeau argues the

ALJ should have adopted, found Comeau to have no marked

limitations i n , among other areas of social functioning,

responding without fear to strangers. Based on this record, the

ALJ did not err in rejecting Comeau’s complaint of “isolative

symptoms” as less than fully credible.

C. Hypothetical question

Finally, Comeau argues that the ALJ erred by basing her

hypothetical question to the VE on a “downgraded” version of

Comeau’s limitations. Specifically, Comeau complains that this

hypothetical “assigned [him] a series of moderate limitations

[in] interacting with the public, coworkers, [and] supervisors,”

even though “Drs. Santora and Jasper had placed [these] at the

serious level.” Again, though, Santora specifically did not find

that Comeau had marked limitations i n , among other areas,

cooperating with others (including co-workers), responding to

24 those in authority (including supervisors), and responding

without fear to strangers.

In any event, as to Comeau’s social interaction abilities,

the ALJ rejected the opinions of Santora and Jasper insofar as

they were inconsistent with those of Landerman. And Landerman

opined that Comeau faced no significant limitation in any of

those abilities, including to “interact appropriately with the

general public,” “ask simple questions or request assistance,”

“accept instructions and respond appropriately to criticism from

supervisors,” and “get along with coworkers or peers.” As

already discussed, the ALJ did not err in crediting Landerman’s

opinions on that subject. See Part III.A, supra. It follows

that the ALJ also did not err in posing a hypothetical question

to the VE that assumed only “moderate limitations” in the

employee’s ability to interact with the public, coworkers, and

superiors. See, e.g., Canales-Rivera v . Sec’y of HHS,

(table),

(1st Cir. May 1 2 , 1992)

(unpublished disposition).

25 IV. Conclusion

For the foregoing reasons, Comeau’s motion to reverse the

ALJ’s decision4 is DENIED, and the Commissioner’s motion to

affirm that decision5 is GRANTED. See

(g). The

clerk shall enter judgment accordingly and close the case.

SO ORDERED.

0C J^(ff6*%& j/seph N. Laplante Jo nited States District Judge

Dated: November 1 , 2013

cc: Ronald B . Eskin, Esq. T . David Plourde, AUSA

4 Document n o . 9. 5 Document n o . 1 0 .

26