UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Esmerelda Carrion

v. Civil No. 13-cv-049-JL Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

SUMMARY ORDER

Esmerelda Carrion has appealed the Social Security

Administration’s denial of her applications for a period of

disability, disability insurance benefits, and Supplemental

Security Income, which claimed an onset date of February 2010.

An administrative law judge at the SSA (“ALJ”) ruled that,

despite Carrion’s severe impairments (including, inter alia,

post-traumatic stress disorder, borderline intellectual

functioning, personality disorder, a back condition, and

complications from a wrist injury), she 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 Carrion’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 Carrion’s

application, see id. §§ 404.981, 416.1481. She appealed the decision to this court, which has jurisdiction under

(g) (Social Security).

Carrion has filed a motion to reverse the decision. See

L.R. 9.1(b)(1). She argues that the ALJ erred by (1) finding

that she did not suffer from a listed impairment, specifically,

mental retardation, see

, subp. P, app. 1, pt. A,

¶ 12.05, making an analysis of her RFC unnecessary,

§§ 404.1520(d), 416.920(d), (2) giving little weight to the

opinions of Carrion’s treating psychiatrist, and (3) finding that

Carrion’s allegations of disabling symptoms were not fully

credible. The Commissioner of the SSA has cross-moved for an

order affirming the ALJ’s decision, see L.R. 9.1(d), arguing that

substantial evidence supports the ALJ’s findings. For the

reasons explained below, this court rules that the challenged

findings were, in fact, supported by substantial evidence, and

therefore denies Carrion’s motion to reverse the ALJ’s decision

(and grants the Commissioner’s).

Mental retardation. “For a claimant to show that his

impairment matches a listing, it must meet all of the specified

medical criteria.” Sullivan v. Zebley,

(1990).

The listing for “mental retardation” requires, in relevant part,

“[a] valid verbal, performance, or full scale IQ of 60 through

70.”

, subp. P, app. 1, pt. A, ¶ 12.05(c). In

2 finding that Carrion’s intellectual disability did not meet this

standard, the ALJ noted that “there is no evidence of a

qualifying IQ score in the record.”

Carrion argues that this finding was erroneous because, in

October 2011, she received an IQ score of 76--but on a test with

a standard error of measurement such that, according to the

psychologist who administered the test, Carrion’s IQ “scores

would likely fall between 70 and 82 95% of the time.” Carrion

does not explain how this translates into what the listing

requires, i.e., “[a] valid verbal, performance, or full scale IQ

of 60 through 70.” In any event, as the Commissioner points out,

a number of courts have rejected the notion that, in determining

whether a claimant’s IQ meets the mental retardation listing, an

ALJ must account for the margin of error in the IQ test results.

See, e.g., Burns v. Barnhart,

(3d Cir. 2002)

(citing additional cases and abrogating district court cases to

the contrary). As the Third Circuit reasoned in Burns, requiring

the listing to be applied in this way “would essentially alter

the regulatory language to say ‘IQ of 60 through 75,’ rather than

IQ of 60 through 70.’”

.

In the absence of any contrary authority from either the

Court of Appeals for the First Circuit or this court--or any

developed argument by Carrion--this court finds the reasoning of

3 Burns and like decisions persuasive. The ALJ properly found that

Carrion did not meet the listing for mental retardation, which

requires an IQ of 70 or lower, based on a documented IQ score of

76--even if that score resulted from a test with a margin of

error which, if applied in her favor, produces an IQ within the

necessary range.

Treating physician’s opinion. On November 9, 2011,

Carrion’s treating psychiatrist, Dr. Quentin Turnbull, M.D.,

completed a “mental impairment questionnaire” on a form provided

by Carrion’s attorney. Turnbull’s responses, entered by circling

pre-printed responses on the questionnaire, indicated, in

relevant part, that Carrion suffered from: marked limitations in

concentration, persistence or pace resulting in frequent failure

to complete tasks in a timely manner; twice-monthly episodes of

deterioration in work-like settings; and mild inability to

function independently outside of the home due to panic attacks.

The ALJ gave these opinions little weight, explaining that they

“are inconsistent with [Turnbull’s] own treatment notes, which

indicated that [Carrion’s] mood and thought process and

orientation were either unremarkable or within normal limits just

prior to [Turnbull’s] issuing this opinion.” The ALJ further

observed that Carrion’s “activities of daily living [were] also

highly inconsistent with Dr. Turnbull’s opinion.”

4 Instead, the ALJ gave “considerable weight” to the opinions

of Dr. Jessica Stera, a psychologist who evaluated Carrion on

referral from a social worker from the same office as Turnbull.

Stera found that Carrion had “some difficulty” or “some trouble”

in social functioning, understanding and remembering

instructions, sustaining attention, reacting to stress, and

adapting to work or work-like situations, but did not identify

episodes of decompensation or any other disabling limitations.

Based on Stera’s findings, the ALJ found that Carrion retained

the RFC for medium work, limited, in relevant part, to “simple,

routine, and repetitive tasks performed in a work environment

free of fast-paced production requirements,” “tasks involving

only simple work related decisions and simple workplace changes,”

outside of “an intense team environment” or “a retail or

fast-paced environment, or where she would deal with individuals

she did not see on a regular basis.”1

Carrion argues that “[a]lthough the ALJ gave reasons for

rejecting Dr. Turnbull’s opinion, he did not give reasons in

accordance with the proper standard.” The “proper standard,” as

Carrion acknowledges, requires an ALJ to give controlling weight

1 Carrion does not question that Stera’s opinions, if properly credited, fully support the ALJ’s RFC finding. She merely states--incorrectly--that the ALJ “never discussed [Stera’s] diagnoses or the impact on [Carrion’s] functioning.” The ALJ spent an entire paragraph summarizing Stera’s opinions.

5 to the opinions of a treating physician only “[i]f [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 [her] case record.”

(d)(2), 416.927(d)(2).2

The ALJ’s ruling that Turnbull’s opinion was entitled to

little weight because it was unsupported by both his own

treatment notes and the evidence of Carrion’s activities of daily

living comports with this standard. See, e.g., Chapin v. Astrue,

. It also comports with the regulations that

require the ALJ to evaluate any medical opinion according to,

among other factors, the evidence that the source provides to

support the opinion and its consistency with the balance of the

record.

(c)(3)-(4), 416.927(c)(3)-(4).

Carrion does not point to anything in Turnbull’s treatment

notes that, even in her view, supports his opinions as to her

2 After referencing one of these regulations, Carrion states that “[t]here was no discussion of these factors as applied to Dr. Lieberman who had treated [her] for over a year.” This statement is otherwise unexplained, and “Dr. Lieberman” is not even mentioned in the balance of Carrion’s motion to reverse or anywhere in the joint statement of material facts. The court has therefore ignored this “argument.” See, e.g., Gaudette ex rel. D.P. v. Colvin,

(citing United States v. Zannino,

(1st Cir. 1990)).

6 psychological limitations.3 Indeed, her sole criticism of the

ALJ’s conclusion that Turnbull’s opinion was inconsistent with

his treatment notes is that, in explaining that conclusion, the

ALJ referred to notes entered not by Turnbull--but by a social

worker, Pamela Hoskins, who is from the same office as Turnbull

and saw Carrion during the same period that he treated her.

But this minor error does little if anything to undermine

the ALJ’s conclusion that Turnbull’s treatment notes do not

support his opinions as to Carrion’s disabling limitations.

Again, Carrion has not identified any such support in Turnbull’s

notes. The account of Carrion’s treatment with Turnbull set

forth in the parties’ joint statement of material facts--which,

by rule, must “describe all facts pertinent to the resolution of

the case,” L.R. 9.3(d)--says simply that he “monitored [her]

medication progress,” “recommended [she] undergo

neuropsychological cognitive testing,” “prescribed monthly

medical monitoring and individual therapy,” and that his

3 Carrion’s motion refers to a visit to Dr. Turnbull on November 15, 2011 (i.e., after he completed the mental health questionnaire), where, according to her motion, she reported “an episode that [had] occurred 3 weeks earlier when she stated ‘Felt like she had left herself.’” It is unclear how the information Turnbull received as to this single episode could have supported his opinions, expressed two days earlier, as to Carrion’s psychological limitations, and Carrion does not try to explain. Moreover, as noted infra, the joint statement of facts does not include Turnbull’s observations from any of his notes, including those of November 15, 2011.

7 “assessment of [Carrion’s] overall condition was that she

remained the same, or had improved” (citations omitted).

This state of affairs provides a ready response to Carrion’s

complaint in her motion to reverse that the ALJ “does not once

quote from Dr. Turnbull’s own treatment notes”: neither does

Carrion. It stands to reason that those notes do not in fact

provide any support for Turnbull’s opinions but, regardless, the

court is disinclined to wade through medical records (rendered in

handwriting that--as Carrion acknowledges--is difficult if not

impossible to decipher) which Carrion herself has not seen fit to

meaningfully summarize in the joint statement of facts.4

Furthermore, Carrion does not claim that Hoskins’s notes (to

which the ALJ mistakenly referred as Turnbull’s) provide any

support for Turnbull’s opinions either. As the ALJ found--and

the joint statement of facts expressly states--Hoskins’s progress

4 The joint statement of facts indicates that “[o]n April 25, 2010, [Carrion] was assigned a Global Assessment Functioning score of 45,” which “indicates serious symptoms or any serious impairment in social, occupational, or school functioning” (parentheticals, capitalization, and quotation marks omitted). While, in her motion to reverse, Carrion states that this score (which, without referring to the record, she attributes to an assessment by Turnbull and Hoskins) “would indicate that she has serious limitations in the ability to function,” she does not further specify, whether by contrasting the test results with the ALJ’s RFC determination or otherwise. In any event, as this court has noted, “there is no ‘statutory, regulatory, or other authority requiring the ALJ to put stock in a GAF score in the first place.’” Chapin,

(quoting Kornecky v. Comm’r of SSA, 167 Fed. App’x 496, 511 (6th Cir. 2006)).

8 notes do indeed “reveal that [Carrion’s] mood/affect, thought

process/orientation, and behavior/functioning were within normal

limits.”5 The ALJ supportably gave little weight to Turnbull’s

opinions that Carrion nevertheless faced marked limitations in

concentration, persistence or pace, as well as episodes of

deterioration and an inability to function outside of her home.

See, e.g., Comeau v. Colvin,

, aff’d, No. 13-2542

(1st Cir. June 25, 2014); Chapin,

, 4-6 & n.2.

Credibility of alleged symptoms. Finally, Carrion argues

that the ALJ failed to sufficiently explain his finding that,

while her medically determinable impairments could reasonably be

expected to cause her alleged symptoms, her statements as to the

intensity, persistence, and limited effects of those symptoms

were not fully credible. The court disagrees.

According to the joint statement of facts, Carrion testified

that “she experienced depression and anxiety” and “had poor

concentration,” and “reported back problems” and “shoulder pain.”

The court assumes (since Carrion’s motion does not specify) that

5 This characterization from the joint statement of facts refers to treatment notes of sessions between April and July 2010. So there is no merit to Carrion’s suggestion that the ALJ improperly restricted his inquiry in finding that treatment notes from “just prior to” when Turnbull completed his evaluation in October 2011 were inconsistent with it--the earlier treatment notes, from the spring and summer of 2010, are likewise inconsistent with it, and Carrion does not argue to the contrary.

9 these are the allegations she believes the ALJ should have found

fully credible.

In explaining why he did not, however, the ALJ noted that

Carrion “was consistently described as exhibiting normal speech,

thought process, motor sensorium and behavior” as well as “normal

insight and judgment on many occasions.” Carrion faults this

finding because, as the record support for it, the ALJ referred

to one page of an assessment form completed when Carrion began

treating with Turnbull and Hoskins, in April 2010. But--as

already discussed at length--the treatment notes that followed

the initial assessment indeed show, as Carrion has stipulated,

“that [her] mood/affect, thought process/orientation, and

behavior/functioning were within normal limits.” And the ALJ

specifically referred to some of these treatment notes in

explaining why he did not fully credit Carrion’s “alleged

disabling mental health symptoms.” It is unclear what else

Carrion believes was required, by way of explanation, but, in the

court’s view, the ALJ’s explanation was more than adequate. See,

e.g., Scanlon v. Astrue,

.

The same is true of the ALJ’s treatment of Carrion’s claimed

physicial limitations, as to which the ALJ found “the objective

evidence is completely lacking.” While Carrion’s motion to

reverse refers to her treatment for “pain throughout her body and

10 in particular her lower extremities, including bilateral knee

pain and groin pain” by a Dr. Geoffrey Lund, she does not explain

how that supports her testimony as to “back problems” and

“shoulder pain,” nor does she point to anything else in the

record that does.6 Nor, conversely, did Carrion testify to pain

in her legs. In addition, Carrion’s counsel conceded at the

hearing that, in Carrion’s back, she “has pain, but I don’t think

there’s supportive evidence in the file . . . that it would

prevent her from working . . . . [I]t’s minimal, if at all.”

The ALJ also found that Carrion’s “activities of daily

living support the mental and physical ability to perform at

least simple medium exertion work.” This finding is supportable

if not inevitable. As the joint statement of facts indicates,

Carrion testified that “she was currently working 25 hours per

week at a hotel . . . five days a week, five hours per day.”7

6 Carrion’s motion to reverse states that she “suffers from headaches and was seen . . . on April 7, 2010 after complaining of intense pain in her head for over 2 days,” asserting that the ALJ “never mentioned [her] headaches.” But Carrion herself likewise “never mentioned her headaches” in her testimony before the ALJ, and the only reference to this symptom in the joint statement of facts indicates that, while Carrion sought medical care for headaches on April 5, 2010, a CT scan and physical examination produced normal results. Because this evidence so obviously provides no support for Carrion’s disability claim, the ALJ cannot be faulted for failing to mention it in his decision. See Gaudette,

. 7 In fact, Carrion testified that she no longer worked at the hotel, where she was a maid and a server in the dining room,

11 She also testified (again, per the joint statement) that “she

made lunch and dinner, sometimes helped her children with

homework, performed household chores, and watched television.”

Carrion also, as the ALJ noted, “attend[ed] classes regularly

while also working and raising her [two] children” during the

time she claimed to be disabled.

While Carrion points out, correctly, that a claimant’s

ability to work part-time cannot itself support a ruling that she

is not disabled (which requires the ability to work 40 hours a

week or the equivalent), see, e.g., Huse v. Colvin, No. 13-117,

, at *2 (D.N.H. Mar. 20, 2014), the ALJ did not

rely solely on the fact that Carrion was working part-time (or,

for that matter, that she was also caring for her children,

maintaining her home, and attending classes) in finding that she

was capable of medium work with certain limitations. Instead, he

relied on her part-time work, and her other activities, to find

that her allegations of disabling symptoms were less than fully

credible, which is entirely proper. See, e.g., Comeau,

. And the ALJ’s ultimate determination of Carrion’s

because “that would hurt my back and my neck and I was not feeling well.” So--as should be clear by now--insufficient care was put into preparing the joint statement of facts. Regardless, as the ALJ noted, Carrion also testified that, at the time of the hearing, she was working 25 hours a week at a different job, monitoring children on a school bus.

12 RFC was, again, based on the opinions of a psychologist who had

examined her. See note 1 and accompanying text, supra. The ALJ

adequately and defensibly explained his reasons for not fully

crediting Carrion’s complaints of disabling symptoms.

Based on the foregoing, Carrion’s motion to reverse the

ALJ’s decision (document no. 11) is DENIED, and the

Commissioner’s motion to affirm that decision (document no. 14)

is GRANTED. See

(g). The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: August 20, 2014

cc: Judith E. Gola, Esq. Robert J. Rabuck, AUSA

13