Kristen L. McKinley v. SSA 13-CV-047-SM 2/26/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kristen Lee McKinley, Claimant

v. Case No. 13-cv-47-SM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c) (3), Claimant,

Kristen McKinley, 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")

and Supplemental Security Income Benefits under Title XVI of the

Act,

, 1381, et seg. See document no. 8. The

Commissioner objects and moves for an order affirming his

decision, document no. 11.

Factual Background

I. Procedural History

On August 26, 2010, claimant filed an application for Social

Security Disability Insurance Benefits ("DIB benefits"), and

Supplemental Security Income ("SSI"), alleging disability

beginning August 17, 2010. She asserts eligibility for benefits

based on disabilities due to severe back, neck, arm, shoulder. leg, and hip pain; pain, numbness, and tingling in her lower and

upper extremities; severe headaches and episodes of dizziness and

light headedness; weakness; and anxiety, PTSD, ADHD, bipolar

disorder, and major depression. Her application for benefits was

denied and she reguested an administrative hearing before an

Administrative Law Judge ("ALJ").

On February 8, 2012, claimant (who was then 38 years old),

her attorney, and an impartial vocational expert appeared before

an ALJ. On March 19, 2012, the ALJ issued his written decision,

concluding that claimant was not disabled. The Appeals Council

denied claimant's reguest for review of the ALJ's decision on

December 3, 2012. Accordingly, the ALJ's decision became the

final decision of the Commissioner, subject to judicial review.

Claimant then filed a timely action in this court, appealing

the denial of DIB and SSI benefits. Now pending are claimant's

"Motion for Order Reversing Decision of the Commissioner"

(document no. 8) and the Commissioner's "Motion for Order

Affirming the Decision of the Commissioner" (document no. 11).

II. Stipulated Facts

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

Statement of Material Facts, which is part of the court record

2 (document no. 12), and need not be recounted in detail in this

opinion.

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

0 5 (g); Irlanda Ortiz v. Secretary of Health & Human Services,

(1st Cir. 1991). Moreover, provided the ALU'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

l Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. 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 as it is supported by substantial evidence."). See also

Rodriquez v. Secretary of Health & Human Services,

(1st Cir. 1981) ("We must uphold the [Commissioner's]

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,

(1st Cir. 1984)

(citing Sitar v. Schweiker,

(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

Frustaqlia v. Secretary of Health & Human Services,

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

Human Services,

(1st Cir. 1986)).

4 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

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,

(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,

(1st Cir. 1982)). Nevertheless, claimant is not reguired 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 Vazguez v. Secretary of Health & Human Services,

5

(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.

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,

(1st Cir. 1986); Goodermote,

. When determining whether a claimant is disabled, the ALJ

is also reguired to make the following five inguiries:

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

(2) whether claimant has a severe impairment;

(3) whether the impairment meets or eguals 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.

6

. Ultimately, a claimant is disabled only if

his :

physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, 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 [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]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 her

decision.

Discussion

I. Background - The ALJ's Findings

In concluding that McKinley was not disabled within the

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

step seguential evaluation process described in

. He first determined that McKinley had not been

engaged in substantial gainful employment since her alleged onset

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

impairments of adjustment disorder with mixed features of anxiety

and depression, lumbar degenerative disc disease, left shoulder

tendonitis, bursitis in hips, and obesity. Administrative Record

7 ("Admin. Rec.") at 17-18. Nevertheless, the ALJ determined that

those impairments, regardless of whether they were considered

alone or in combination, did not meet or equal one of the

impairments listed in Part 404, Subpart P, Appendix 1. I_d. at

19.

Next, the ALJ concluded that McKinley retained the residual

functional capacity to perform light work, "except [that] she is

limited to occasional balancing, stooping, kneeling and

crawling." I_d. at 20. He also found that she "can occasionally

climb ramps and stairs" and that she is "limited to frequent

pushing, pulling and overhead reaching with the left upper

extremity . . . [and] frequent bilateral foot operation." The

ALJ found that McKinley "must avoid all unprotected heights and

exposure to hazardous machinery," and that "she is limited to

simple, routine and repetitive tasks and only occasional

interaction with the public and with co-workers because of her

mental impairment." iId. The ALJ concluded, therefore, that

McKinley is capable of performing her past relevant work as a

cashier and housekeeper, and also other jobs in the national

economy. Id., at 26-28. Consequently, the ALJ concluded that McKinley was not

disabled from August 17, 2010, through the date of his decision.

Id. at 2 8.

II. Claimant's Arguments

On appeal, McKinley argues that the ALJ's RFC finding is not

supported by substantial evidence. Specifically, she says the

ALJ arrived at his RFC finding by (1) improperly evaluating the

opinion evidence; (2) improperly assess[ing] her credibility; (3)

"unfairly constru[ing]" her daily activities; and (4) ignoring

certain provider notes.2

A. Opinion Evidence

McKinley challenges the ALJ's assessment of the opinion

evidence in two respects. She says that the ALJ improperly

discounted the opinion of her treating therapist, Rachel Wizer, a

licensed clinical social worker, regarding the extent of

functional limitations caused by her mental impairments, and

further, that he impermissibly rejected her treating physician's

2 Claimant also argues that the ALJ did not properly rely on the vocational expert's testimony with respect to the alternative hypothetical. Because the court finds that the ALJ properly rejected the severe limitations contained in the hypothetical, the ALJ was not required to adopt the VE's testimony in that regard. opinion that her physical impairments rendered her unable to

"return to work." Admin. Rec. at 25, 206.

With regard to McKinley's mental impairment, the ALJ found

that it limited her to work involving "simple, routine, and

repetitive tasks and only occasional interaction with the public

and with co-workers." iId. at 20. In making that finding, the

ALJ gave the "greatest weight" to the opinion of the consultative

psychological examiner, Stephanie Griffin, Ph.D. I_d. at 26. Dr.

Griffin reviewed the available record and opined that McKinley's

mental impairments "did not have a significant adverse impact on

[her] work related functions." iId. She concluded that McKinley

could adhere to a schedule, interact with others, and make

decisions, and that "continued psychiatric medication management

and counseling would assist [her] in coping with situational

stressors." Id.

In further support of his mental RFC finding, the ALJ noted

that McKinley generally scored in the normal range on mental

status examinations and that, over the years, she "received only

minimal health care for her mental impairment." iId. at 24. He

discounted the opinion of McKinley's treating therapist, Ms.

Wizer, who had concluded that McKinley had severe limitations in

key work-related functions, and "no useful ability" to deal with

10 work stress and even simple instructions. Admin. Rec. at 25;

1128-31.

McKinley faults the ALJ for giving "little weight" to Ms.

Wizer's opinion. McKinley's briefing on the point is

undeveloped, and on this ground, alone, her argument should be

rejected. But even on the merits the argument fails. See e.g.

O'Neill-Beal v. Colvin,

, at *5 (D. Me. Nov. 5,

2013) (claimant's "latter argument is undeveloped and thus

waived, but neither argument could prevail in any event."). The

ALJ stated that he put little value on Ms. Wizer's opinion

because it was based on a "brief treatment history" of three

months. Admin. Rec. at 26. He also determined that Ms. Wizer's

opinion was inconsistent with the "substantial clinical or

diagnostic findings" in the record, with "the testimony presented

at the hearing," and "with the record as a whole." The ALJ

"note[d] that Ms. Wizer is not an acceptable medical source"

under the regulations.

The regulations "do[] not expressly reguire that

administrative law judges provide 'good reasons' for discounting

the opinion of a source who is not an 'acceptable medical

source.'" King v. Astrue,

, at *4 (D. Me. Oct.

31, 2010) (Rich, M.J.) (guoting and citing SSR 06-03p,

2329939, at *2 (2006)), aff'd

, at *1 (D. Me. Nov.

22, 2010). Nevertheless, the ALJ, here, did provide good reasons

for assessing "little weight" to Ms. Wizer's opinion, and his

assessment is supported by substantial evidence.

With regard to McKinley's physical impairments, the ALJ

found that they limited her to light work with some additional

limitations. Admin. Rec. at 20. In making that finding, the ALJ

gave "great weight" to the opinion of McKinley's treating

physician. Dr. Minh Tran. I_d. at 25. Dr. Tran, a physical

medicine and rehabilitation specialist, opined that "claimant was

at only 15% whole person impairment,"

and he agreed with a

functional capacity evaluation that indicated McKinley was able

to work an eight-hour day. iId. at 324. The ALJ acknowledged

that the opinion predated claimant's alleged date of disability,

but also noted that the record documented improvement, not

deterioration, in her condition since that time. iId. at 21-22.

The ALJ also assigned varying weight to the opinions of Dr.

S. J. Holman. I_d. at 25. Dr. Holman, a pain specialist,

"completed a Worker's Compensation evaluation and assessed that

the claimant could occasionally bend, kneel, sguat, climb, stand,

walk, sit, and reach," and that claimant "had no restrictions in

her ability to drive." iId. Dr. Holman also checked "no" to the

12 question of whether McKinley can "return to work," but opined

that she had not reached maximum medical improvement. iId. at

206.

The ALJ accepted Dr. Holman's opinion that McKinley could

occasionally bend, kneel, etc., and found the opinion to be

consistent with his RFC finding that McKinley could do light work

with some restrictions. He rejected Dr. Holman's opinion,

however, that claimant could not return to work. Noting that it

was "not clear that the doctor was familiar with the definition

of 'disability' contained in the Social Security Act and

regulations," the ALJ reasoned that "it is possible that Dr.

Holman was referring solely to claimant's inability to perform

her past relevant work as a convenience store manager, which is

consistent with the conclusions reached in this decision."

at 25 .

McKinley argues that the ALJ improperly rejected Dr.

Holman's opinion that she could not "return to work." The

argument is without merit. For one thing, the opinion does not

constitute a "medical opinion" under the Commissioner's

regulations, but rather, is an opinion on an issue reserved to

the Commissioner. See SSR 96-5p,

, at *3. In

addition, the ALJ reasonably inferred, as he was entitled to do.

13 that Dr. Holman believed he was answering the question whether

McKinley could return to her work as a convenience store manager.

See Irlanda Ortiz,

(the ALJ is entitled to draw

reasonable "inferences from the record evidence").3

For all of these reasons, the court finds that the ALJ

properly assessed the opinion evidence.

B. Claimant's Credibility

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

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 v. Astrue,

, at *4 (D.N.H. July 21, 2011) (DiClerico, J.)

(citing

(c)(3)).

3 McKinley's identical argument regarding Dr. Ollar's notation is, likewise, rejected.

14 McKinley alleges that the intensity, persistence, and

limiting effects of her impairments are so severe as to render

her unable to work. In a September 21, 2010, function report,

she stated that she has to "sit down to get dressed; has

difficulty standing in the shower; experiences pain in her left,

dominant hand while brushing her long hair; and has pain while

bending to shave her legs and when standing for too long to

cook." Jt. Stmt., doc. no. 12 at 15. She reported that she must

sit freguently while cooking and that she reguires help to lift

laundry in and out of her car. I_d. McKinley also indicated that

she needs to stop and rest after walking for ten minutes; that

she is "able to pay attention for about 15 minutes"; and that she

"gets overwhelmed very easily . . . and . . . [does] not handle

changes in routine well." iId. at 15-16.

At the administrative hearing, McKinley testified,

consistent with her function report, that she is physically

limited in her daily activities. She reported that she is

"unable to work because she cannot stand for long periods of time

or deal with large groups of people"; "cannot stand for more than

a half hour before needing to sit"; and "freguently has to change

positions while sitting because of low back pain." I_d. at 17.

She added that she has "tendinitis in her left rotator cuff";

"bursitis in her hips, which radiates down her legs and prevents

15 her from standing for long periods of time"; and "problems with

both knees." iId. at 17-18.

McKinley also testified as to the effects of her mental

impairments. Although she described her psychiatric medication

as helpful, she also "report[ed] significant mental health

symptoms including racing thoughts, impaired sleep, decreased

concentration, irritability, mood swings, depression, and

anxiety." Admin. Rec. at 21.

The ALJ found that McKinley's statements "concerning the

intensity, persistence and limiting effects of [her] symptoms"

were not entirely credible. iId. The ALJ reached that conclusion

in light of clinical signs and medical opinion evidence;

McKinley's course of treatment; her "history of non-compliance

with rehabilitative therapy"; and her "high level of activities

of daily living." I_d. at 21-23. He also found McKinley not

entirely credible because she had "stopped working in February

2009 due to a business-related layoff" and amended her disability

onset date "to August 17, 2010, which is the date that the

claimant's unemployment benefits ceased." iId. at 23.

In addition to those reasons, the ALJ cited as "[a]nother

factor influencing" his credibility assessment claimant's

16 "appearance and demeanor while testifying at the hearing." Id.

at 23. He explained:

[T]he claimant shifted in her seat numerous times and explained that she did so in order to alleviate her pain at the start of the hearing. However, the undersigned observed that the claimant stopped alternating positions and shifting mid-way through the hour and twenty minute hearing. Furthermore, the undersigned observed that the claimant appeared bored and not in pain throughout the duration of the hearing.

Id.

McKinley argues that the ALJ's credibility determination is

flawed because the ALJ was not entitled "to assess a Plaintiff's

pain based on limited observation and subjective speculation that

the Plaintiff appears bored during a hearing." Pi. Br., doc. no.

8-1, at 12. The argument is entirely without merit.

"Part 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 24, 2011). In sizing up McKinley's demeanor and

apparent ability to sit without great pain, the ALJ, therefore,

did what he was authorized and expected to do in his role as

factfinder. Moreover, he appropriately assessed that single

piece of information within the context of a larger mix of

evidence, which itself was more than enough to support his

conclusion that McKinley's complaints about the severity,

17 persistence, and limiting effects of her symptoms were not

entirely credible. See Teixeira v. Astrue,

(D. Mass. 2010) (ALJ's consideration of claimant's demeanor,

as "one factor . . . among several," was "particularly

appropriate" where claimant alleged disabling pain).

C. Daily Activities

McKinley argues that the ALJ "unfairly construed [her] daily

activities to demonstrate she had residual functional capacity."

Pi. Br., doc. no. 8-1, at 10. In support, she points out that

she testified to disabling limitations in carrying out daily

tasks, including limitations in lifting, dressing, and bathing

her son; washing herself; and doing the dishes and other

household chores. McKinley says that the ALJ glossed over these

limitations, "recount[ing] plaintiff's activities of daily living

to make it sound as if she had an ungualified ability to walk,

cook, take care of her personal hygiene, drive, and attend to her

infant son without limitation."

McKinley's argument is rejected. It is true that an ALJ

errs when he "misconstrue[s]" the evidence of claimant's

activities of daily living, or gives that evidence only "cursory

consideration." Blake v . Apfe1,

, at *6, 8

(D.N.H. Jan. 28, 2000) (Barbadoro, J.). The ALJ, here, made

18 neither of those mistakes. Instead, he thoughtfully assessed the

probative value of McKinley's testimony about her daily

activities and drew supportable conclusions from it.

The ALJ first fully acknowledged that "claimant has

described daily activities, which are fairly limited." Admin.

Rec. at 24. He concluded, however, that McKinley's testimony was

of limited probative value, explaining that "two factors weigh

against considering these allegations to be strong evidence in

favor of finding the claimant disabled." iId. First, the alleged

limitations in claimant's daily activities "cannot be objectively

verified with any reasonable degree of certainty." iId. Second,

"even if the claimant's daily activities are truly as limited as

alleged, it is difficult to attribute that degree of limitation

to the claimant's medical condition, as opposed to other reasons,

in view of the relatively weak medical evidence and other factors

discussed in this decision."

And although he assessed limited probative value to

McKinley's testimony about her daily activities, he supportably

found that, even as she described them, McKinley's daily

activities are "not limited to the extent one would expect, given

the complaints of disabling symptoms and limitations." iId. He

noted, in particular, that McKinley "lives independently";

19 "attend[s] to her personal care needs, drives a car, shop[s] in

stores, prepare[s] meals, go[es] out to eat in restaurants,

do[es] laundry, wash[es] dishes, carets] for her nine-month old

son, and [has] weekend visits with her 14-year old daughter."

He also noted that she is "able to manage her own finances,

maintain friendships, . . . watch movies . . . attend[] religious

services on Sundays, and is able to interact with the servicing

minister." I_d. at 24-25.

At bottom, the ALJ did not improperly assess or misconstrue

McKinley's reports regarding her daily activities.

D. Undiscussed Notes

An ALJ must consider and weigh all relevant evidence. See

Alcantara v. Astrue,

, at *2 (1st Cir. Dec. 12,

2007) (citing

(a) (3), 416.920(a) & (c)). To

demonstrate that the ALJ impermissibly ignored evidence, a

claimant must do more than point to the fact that the ALJ never

mentioned the evidence in his written decision. See Dwyer v.

Astrue,

, at *4 (D.N.H. June 19, 2012) (an ALJ is

not reguired to "to discuss 'every piece of evidence in the

record'") (guoting Shulkin v. Astrue,

, at *8

(D.N.H. Jan. 11, 2012) (Barbadoro, J.)). She must also showthat

the evidence is probative of her claim and not cumulative of

20 evidence the ALJ explicitly addressed. Shulkin,

,

at *8-9. In other words, claimant must show that the ALJ

essentially "adopted one view of the evidence, ''without

addressing the underlying conflict.'" Id. at *9.

McKinley says that the ALJ failed to consider comments

included in four treatment provider notes and one educational

intake form. All of the notations describe what could be

regarded as disabling symptoms. To that extent, then, they are

probative of McKinley's claim. But because they all represent

the provider's or educator's recitation of McKinley's subjective

complaints, they are cumulative of evidence the ALJ explicitly

addressed in his written decision. The ALJ directly and

thoroughly addressed the underlying conflict between claimant's

subject complaints of disabling limitations and the very

substantial body of evidence suggesting that claimant suffers

only limited functional losses. His failure to discuss those few

cumulative notations does not, therefore, constitute error.

Conclusion

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

decision of the Commissioner (document no. 8_) is denied. The

Commissioner's motion to affirm her decision (document no. 11) is

21 granted. The Clerk of Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED

:even J/McAuliffe Jnited States District Judge

February 2 6, 2014

cc: Christine W. Casa, Esq. Robert J. Rabuck, AUSA

22