Debora A. Smallidge v. SSA 13-CV-080-SM 2/28/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Debora A. Smallidge, Claimant

v. Case No. 13-cv-80-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.

Debora Smallidge, moves to reverse or vacate the Commissioner's

decision denying her applications for Social Security Disability

Insurance Benefits under Title II of the Social Security Act,

, and Supplemental Security Income Benefits under

Title XVI of the Social Security Act,

-1383c

(collectively, the "Act"). The Commissioner objects and moves

for an order affirming her decision.

For the reasons discussed below, claimant's motion is

denied, and the Commissioner's motion is granted. Factual Background

I. Procedural History.

In late 2009 and early 2010, claimant filed applications for

Disability Insurance Benefits and Supplemental Security Income,

alleging that she had been unable to work since November 14,

2008. Those applications were denied and claimant reguested a

hearing before an Administrative Law Judge ("ALJ").

In July of 2011, claimant, her attorney, and a vocational

expert appeared before an ALJ, who considered claimant's

applications de novo. Three weeks later, the ALJ issued his

written decision, concluding that claimant was not disabled, as

that term is defined in the Act, at any time prior to the date of

his decision.

In January of 2013, the Appeals Council denied claimant's

reguest for review, rendering the ALJ's denial of claimant's

applications for benefits the final decision of the Commissioner,

subject to judicial review. Subseguently, claimant filed a

timely action in this court, asserting that the ALJ's decision is

not supported by substantial evidence. Claimant then filed a

"Motion for Order Reversing Decision of the Commissioner"

(document no. 8). In response, the Commissioner filed a "Motion

2 for an Order Affirming the Decision of the Commissioner"

(document no. 11). Those motions are pending.

II. Stipulated Facts.

Pursuant to this court's Local Rule 9.1, the parties have

submitted a statement of stipulated facts which, because it is

part of the court's record (document no. 12), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. "Substantial Evidence" and Deferential Review.

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 and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &

Human Services,

(1st Cir. 1991). 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

3 a preponderance of the evidence, so 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). See also Richardson v. Perales,

(1971) .

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). See also 42 U.S.C. § 1382c(a)(3). The Act

places a heavy initial burden on the 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,

the claimant must prove, by a preponderance of the evidence, that

her impairments prevent her from performing her former type of

work. See Gray v. Heckler,

(1st Cir. 1985);

Paone v. Schweiker,

(D. Mass. 1982) . If

the claimant demonstrates an inability to perform her previous

4 work, the burden shifts to the Commissioner to show that there

are other jobs in the national economy that she can perform, in

light of her age, education, and prior work experience. See

Vazguez v. Secretary of Health & Human Services,

(1st Cir. 1982). See also

(f) and

416.912(f).

In assessing a disability claim, the Commissioner considers

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

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

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant's educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). Ultimately, a claimant is disabled only if her:

physical or mental impairment or impairments are of such severity that [she] 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 [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

5 With those principles in mind, the court reviews claimant's

motion to reverse and the Commissioner's motion to affirm her

decision.

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 seguential evaluation process described in

and 416.920. Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

since her alleged onset of disability: November 14, 2008. Admin.

Rec. at 21. Next, he concluded that claimant suffers from the

following severe impairments: "polyarthralgia, polycythemia,

chronic obstructive pulmonary disease, obesity, and major

depressive disorder." I_d. at 21-22. Nevertheless, the ALJ

determined that those impairments, regardless of whether they

were considered alone or in combination, did not meet or

medically egual one of the impairments listed in Part 404,

Subpart P, Appendix 1. I_d. at 22-23.

Next, the ALJ concluded that claimant retained the residual

functional capacity ("RFC") to perform the exertional demands of

6 light work.1 He noted, however, that claimant does have certain

limitations.

She should never climb ladders, ropes or scaffolds. She can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl. She should avoid exposure to respiratory heights and moderate exposure to respiratory irritants and concentrated exposure to extreme temperatures, wetness and humidity. [Despite] her mental health condition, she is capable of understanding and remembering instructions and can effectively perform routine tasks; she can maintain normal concentration for two-hour periods within a normal eight-hour workday; she retains adeguate capacity to sustain a normal workday and workweek; she is capable of appropriate social interaction with the public, supervisors and coworkers; and she is capable of adapting to normal changes within a work environment.

Admin. Rec. at 24. Despite those restrictions, the ALJ concluded

that claimant was capable of returning to her prior job as a

cashier and, therefore, was not disabled. I_d. at 27-28.

1 "RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis." Social Security Ruling ("SSR"), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,

at *2 (July 2, 1996) (citation omitted).

7 In the alternative, the ALJ proceeded to step five of the

sequential analysis and considered whether there were any other

jobs in the national economy that claimant might perform.

Relying upon the testimony of a vocational expert, the ALJ

concluded that, notwithstanding claimant's exertional and non-

exertional limitations, she "is capable of making a successful

adjustment to other work that exists in significant numbers in

the national economy." I_d. at 29. Consequently, at both steps

four and five, the ALJ concluded that claimant was not

"disabled," as that term is defined in the Act.

Discussion

Claimant challenges the ALJ's decision on two grounds,

asserting that he erred: (1) by improperly determining her

residual functional capacity; and (2) by failing to give adequate

weight to the opinion of a psychological consultant who evaluated

her.

I. Claimant's Residual Functional Capacity.

Claimant challenges the ALJ's determination that she was

capable of performing a range of light work, asserting that he

improperly assigned greater weight to the physical RFC assessment

of Dr. Fairley (a non-examining state agency physician) than to

the June 2011 Physical RFC Questionnaire completed by Mr. Cubeddu (a physician's assistant who treated claimant since June of

2008). The court disagrees.

In June of 2011, Mr. Cubeddu completed a Residual Functional

Capacity Questionnaire in which he opined that claimant had a

less than sedentary RFC. Admin. Rec. at 444-48. Dr. Brian Irwin

co-signed that guestionnaire. iId. at 448. Claimant suggests

that the opinions in that guestionnaire were entitled to

substantial deference (if not controlling weight) because they

represent the professional medical judgment of her treating

source. Dr. Irwin. See generally

(c). But,

as the Commissioner points out, it is difficult to view Dr. Irwin

as a "treating source" (at least as that phrase is used in the

regulations), since he only met with claimant on a single

occasion - June 10, 2008. See generally

.

Although Mr. Cubeddu had a substantial treatment history with

claimant (they met on ten occasions between June of 2008 and June

of 2011), the record does not support the conclusion (or even the

inference) that Dr. Irwin shared Mr. Cubeddu's level of

familiarity with claimant and her impairments.

Even if Dr. Irwin were properly viewed as claimant's

"treating source," his opinions about claimant's level of

functioning in June of 2011 (as expressed in the RFC Questionnaire prepared by Mr. Cubeddu) were rendered three years

after he examined her. Consequently, they have little persuasive

value.2 The ALJ did not err in treating the opinions contained

in that RFC Questionnaire as coming from something other than an

acceptable medical source. Admin. Rec. at 27.

Alternatively, claimant asserts that even if Mr. Cubeddu's

opinions were not entitled controlling weight, the ALJ should

have afforded them more weight than those of the state agency

physician. But, the ALJ supportably explained why he chose to

discount Mr. Cubeddu's opinions.

Although his opinions may be used as evidence to assess the severity of the claimant's impairments, and how they affect her ability to work, [Mr. Cubeddu's] finding[s] are not supported by the evidentiary record as a whole. Although his last encounter with the claimant was in June 2011, he had not seen her in the preceding fifteen months since March 2010, when she was doing "worlds better." Mr. Cubeddu's findings are not supported by treatment notes documenting objective medical findings to substantiate such limitations.

Admin. Rec. at 27 (citations omitted) . Mr. Cubeddu's treatment

notes from that office visit in March of 2010 reveal that

2 For example, when Dr. Irwin examined claimant in June of 2008, she did not report any symptoms of depression. Admin. Rec. at 346. Yet, three years later, the Residual Functional Capacity Questionnaire co-signed by Dr. Irwin endorses the view that claimant's depression and other psychological issues have rendered her incapable of substantial gainful activity. I_d. at 445.

10 claimant did not report any physical symptoms, and state that she

"reports that she is feeling much better with the Pristiq, worlds

better actually. She feels as though it is really helping."

Admin. Rec. at 334.

Claimant explains that she failed to seek treatment with Mr.

Cubeddu for several months because of a lapse in insurance

coverage. But, as the Commissioner notes, "the fact remains that

Mr. Cubeddu relied upon a disjointed, temporally remote body of

evidence to support his assessment of Plaintiff's functional

capacity." Commissioner's memorandum (document no. 11-1) at 6.

And, prior to each lengthy break in treatment, claimant reported

feeling significantly better. Regardless of the status of

claimant's insurance coverage, the ALJ was permitted to infer

that at least one reason she did not seek treatment during those

lengthy periods of time was because she was actually responding

well to her medications. As the Court of Appeals for the Eight

Circuit has noted, "[i]f an impairment can be controlled by

treatment or medication, it cannot be considered disabling."

Stout v. Shalala,

(8th Cir. 1993) . Cf.

(a) and 416.930(a) (providing that a claimant's

failure to follow a prescribed treatment regimen is grounds for

denying an application for benefits).

11 Finally, claimant asserts that, contrary to the ALJ's

finding, Mr. Cubeddu's opinions are supported by the opinions and

recommendations of claimant's other treating sources. For

example, she points to visits she made to Tonya Perrino (a

physician's assistant) (Admin. Rec. at 214), Dr. Friedlander (an

oncologist/hematologist) (Admin. Rec. at 209-10), and Dr. DeLong

(a pulmonary specialist) (Admin. Rec. at 202-04). But, none of

the treatment notes from any of those care providers supports Mr.

Cubeddu's opinion that claimant is completely disabled from

performing any substantial gainful activity. Rather, those

treatment notes seem focused primarily on claimant's polycythemia

and hypoxemia, secondary to her cigarette smoking.3

Claimant also asserts that the ALJ should have placed less

weight on Dr. Fairley's opinions because, when he prepared his

report, he did not have the benefit of Mr. Cubeddu's June, 2011,

progress notes. But, aside from an unsupported diagnosis of

3 For example. Dr. Friedlander specifically noted that claimant's lab results and hypoxemia were much improved with claimant's decreased smoking. Admin. Rec. at 209 ("I have arranged for a repeat erythropoietin level and assume this will be higher. Assuming that is the case, then there is no need for further hematologic follow up, as correction of her hypoxemia and decreasing cigarette smoking are the ways to control her plasma volume and secondary polycythemia.").

12 fibromyalgia, those notes provide little, if any, new

information about claimant's condition.4

Finally, the court notes that Dr. Fairley's opinions are

well-supported by specific references to substantial evidence in

the record. See Admin. Rec. at 410. And, the ALJ supportably

explained his decision to afford greater weight to Dr. Fairley's

opinions than those of Mr. Cubeddu. See

(c)(3)-(4) (stating that the more weight will be afforded

to opinions that are supported by medical signs and laboratory

findings, as well as those opinions that are consistent with the

medical record as a whole). See generally SSR 96-6p,

at *2 (noting that "State agency medical and psychological

consultants are highly gualified physicians and psychologists who

are experts in the evaluation of the medical issues in disability

claims under the Act" and "[i]n appropriate circumstances.

4 Although Mr. Cubeddu diagnosed claimant with fibromyalgia, he did not record any clinical findings to support that diagnosis. See Admin. Rec. at 442. See generally Johnson v. Astrue,

(1st Cir. 2009) (noting that while laboratory results and musculoskeletal and neurological examinations typically show no abnormalities for fibromyalgia patients, the American College of Rheumatology "nonetheless has established diagnostic criteria that include pain on both sides of the body, both above and below the waist, and point tenderness in at least 11 of 18 specified sites.") (citations and internal punctuation omitted). There is no record in Mr. Cubeddu's treatment notes that he subjected claimant to that test, or that she reported tenderness in at least 11 of 18 specified sites. Conseguently, his diagnosis of fibromyalgia cannot be said to be well supported by the medical record.

13 opinions from State agency medical and psychological consultants

. . . may be entitled to greater weight than the opinions of

treating or examining sources.").

II. Claimant's Mental Impairments.

Next, claimant challenges the ALJ's decision to afford

greater weight to a Psychiatric Review Technigue and the Mental

Residual Functional Capacity Assessment prepared by the state

agency psychological consultant, Helen Patterson, Ph.D. (Admin.

Rec. at 416-33), than the Mental Health Evaluation Report

prepared by psychological consultant Cheryl Bildner, Ph.D. (id.

at 411-15) .

In her report. Dr. Bildner observed that claimant is

"predominantly able to independently complete [activities of

daily living]. She described that on certain days, she is unable

to complete certain tasks due to pain and fatigue, but tasks are

eventually completed. She shops, maintains her home, hygiene and

cooks. She can drive but does not have a vehicle." Admin. Rec.

at 413. She also observed that, "Claimant is able to recall

basic information. She can understand and remember locations and

work-like procedures. She would have difficulty recalling more

complex, detailed or abstract instructions." I_d. at 414.

Additionally, she opined that claimant "can make simple

14 decisions. She is able to interact appropriately with superiors

or co-workers." I_d. Nevertheless, Dr. Bildner concluded that,

"Claimant is unable to sustain concentration and complete tasks.

Motivation and perseverance are compromised" and claimant is

"unable to maintain a consistent schedule [and] she is unable to

effectively manage stresses common to a work environment."

Claimant focuses on those latter conclusions and says the ALJ

inappropriately discounted them.

Dr. Patterson, on the other hand, opined that while claimant

does have some limitations, she is capable of engaging in

substantial gainful activity.

[Claimant] alleges multiple physical conditions including fibromyalgia and fatigue with depression.

HER [medical evidence of record] shows multiple problems associated with chronic nicotine dependence, including mild COPD. Has been worked up extensively and recently directly warned that if she does not stop smoking, she has increased likelihood of shortened lif e .

Close read[ing] of the record raise [s] guestions regarding alcohol abuse, despite claimant denying this or minimizing.

HER further reveals multiple situational stressors, including caring for an ill spouse, with both of them unemployed. [Her activities of daily living are those] of a homemaker.

No history of psychiatric treatment or any other form of mental health care, [which] is a weighted factor. PCP notes do show a few months' period of focus re:

15 depression, during time of MD focus on this claimant stopped smoking.

CE [consultative examination] necessary. Presented as somewhat vague informant. Raspy voice. Single objective sign of depression per restricted affect. No signs of thought disorder. Some "preoccupation" with health issues. IQ estimated as average. Reduced attention and motivation. Diagnosis of [major depressive disorder], recurrent, moderate.

CE provider's estimation of [claimant's] limitations seems extreme in the face of the record. Task complexity is reduced to "simple," [while] this claimant routinely performs normal tasks. Appears the provider does not understand programmatic definitions of "simple" and "complex."

Job reported to have ended due to variety of physical ailments. Hasn't been referred for psychiatric evaluation or treatment, nor sought same.

Admin. Rec. at 428. In light of the foregoing. Dr. Patterson

concluded that, "Overall, this claimant may have some reduction

in sustainability but overall is capable of work-like activity."

Claimant takes issue with Dr. Patterson's statement that she

has "no history of psychiatric treatment or any other form of

mental health care." And, she goes on to suggest that because

Dr. Patterson stated (allegedly erroneously) that claimant had

not "been referred for a psychiatric evaluation or treatment, nor

sought [the] same," Admin. Rec. at 428, she "did not review the

records carefully." Claimant's memorandum at 22. But, as the

Commissioner points out, there is a difference between

16 "referring" a patient for treatment by a medical or mental health

specialist, and "suggesting" the same. Whenever Mr. Cubeddu

specifically "referred" claimant to a specialist, it appears she

followed up with a consultation. As to mental health counseling,

however, Mr. Cubeddu simply suggested that she seek counseling or

therapy. It was, therefore, reasonable for Dr. Patterson to

infer that, given the absence of evidence that claimant ever

sought mental health counseling or treatment (beyond the anti­

depression medications prescribed by Mr. Cubeddu), she never

received such a "referral" for a psychiatric evaluation or

treatment.5

In the final section of the functional capacity assessment

she completed. Dr. Patterson concluded that:

The preponderance of evidence indicates:

A. The claimant is capable of understanding and remembering instructions and can effectively perform routine tasks.

B. The claimant appears capable of maintaining concentration for two hour periods within a normal 8-hour work day. Although she may experience some interruption from symptoms of depression, she

5 Parenthetically, the court notes that no one disputes the fact that claimant suffers from depression. In fact, the ALJ concluded that her major depressive disorder is a severe impairment. Admin. Rec. at 21. But, the record certainly suggests that, when properly treated with medication, claimant's depression responded well and she felt "worlds better." I_d. at 334 .

17 retains adequate capacity to sustain a normal workday and workweek.

C. The claimant is capable of appropriate social interaction with the public, supervisors, and co­ workers .

D. The claimant appears capable of adapting to normal changes within a work environment.

Admin. Rec. at 432. While there is certainly evidence in the

record to the contrary, those conclusions are nonetheless

supported by substantial record evidence, as is the ALJ's

decision to afford them great weight.

Conclusion

This court's review of the ALJ's decision is both limited

and deferential. The court is not empowered to consider

claimant's applications de novo, nor may it undertake an

independent assessment of whether she is (or is not) disabled

under the Act. Rather, the court's inquiry is "limited to

determining whether the ALJ deployed the proper legal standards

and found facts upon the proper quantum of evidence." Nguyen v.

Chafer,

(1st Cir. 1999). Provided the ALJ's

findings are properly supported by substantial evidence, the

court must sustain those findings even when there may also be

substantial evidence supporting the contrary position. Such is

the nature of judicial review of disability benefit

determinations. See, e.g., Tsarelka v. Secretary of Health &

18 Human Services,

(1st Cir. 1988); Rodriquez v.

Secretary of Health & Human Services,

(1st Cir.

1981) .

Consequently, while there is certainly substantial evidence

in the record demonstrating that claimant experiences significant

pain and muscle aches, has difficulty with fatigue, and suffers

from depression, the existence of such evidence is not sufficient

to undermine the ALJ's decision that she is not "disabled" within

the meaning of the Act, which conclusion is also supported by

substantial evidence.

Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant, the

court concludes that there is substantial evidence in the record

to support the ALJ's determination that claimant was not disabled

at any time between November 14, 2008, and July 28, 2011. The

ALJ's RFC determination, his decision to discount the opinions of

Mr. Cubeddu, and his decision to afford greater weight to the

opinions of Dr. Patterson than those of Dr. Bildner are well-

reasoned and well-supported by substantial documentary evidence.

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

decision of the Commissioner (document no. _8) is denied, and the

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

granted. The Clerk of the Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

J'teven J/ McAuliffe '"United States District Judge

February 28, 2014

cc: D. Lance Tillinghast, Esq. T. David Plourde, Esq.

20