UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Keith R. McDonough

v. Civil No. 13-cv-164-PB Opinion No.

U.S. Social Security Administration, Acting Commissioner

MEMORANDUM AND ORDER

Keith McDonough seeks judicial review of a ruling by the

Social Security Administration (“Administration”) denying his

application for disability insurance benefits (“DIB”) and

supplemental security income (“SSI”). For the reasons set forth

below, I deny McDonough’s request and affirm the decision of the

Commissioner.

I. BACKGROUND1

A. Procedural History

This action is an appeal from a final administrative

decision dated March 26, 2012 denying Plaintiff’s claims for

Title II disability benefits. Plaintiff filed his applications

1 The background information in parts A and B is taken verbatim from the parties’ Joint Statement of Material Facts, Doc. No. 16, omitting citations to the record and with slight changes to paragraph structure. for benefits on February 17, 2011, alleging a disability onset

date of August 3, 2010. Plaintiff’s applications were denied on

June 15, 2011. He filed a timely request for hearing before an

administrative [l]aw judge. The hearing was held on March 13,

2012. ALJ Sutker issued an Unfavorable Decision on March 26,

2012. On May 16, 2012, the Plaintiff requested an Appeals

Council review. On February 6, 2013, the Appeals Council denied

review.

B. Medical Records Summary

On February 22, 2009, Plaintiff was seen by Dr. Robert

Liscio at the Southern New Hampshire Medical Center (“SNHMC”).

The impression of Liscio was that Plaintiff’s lateral clavicle

had an unusual appearance with some calcification and a widened

AC joint. Dr. Liscio reported that this was probably from an

old AC joint separation. On January 27, 2010, Plaintiff was

seen at St. Joseph Hospital. Plaintiff complained of right-

sided low back pain; occasional episodes of right leg/foot

sleeping over last couple of weeks; and pain described as

burning.

On March 13, 2010, Plaintiff was seen at SNHMC. Plaintiff

reported that he had been very depressed and was having suicidal

ideation. He reported that “everything is wearing on me.” When

asked how he would describe his marriage, he reported that “it

sucks.” He said that he does not want to “do it” anymore, that

2 he is tired and cannot keep up the façade, that he is happy. He

reported that he had several suicide attempts including overdose

and cutting himself; had been treated for substance abuse

including cocaine[,] pills and heroin; had some low back pain;

had been to the emergency room a couple of times for this; and

has had a number of head injuries from motor vehicle accidents,

wrestling, skateboarding, and having been hit by a 2x4. Upon

mental status examination, he said his mood was depressed and

that he had significant sleep difficulties, including difficulty

falling asleep, not awakening in early morning, which impaired

his concentration and memory. His appetite was okay, although

he noted that he only ate once per day. His energy was

decreased. He admitted to irritability, anhedonia, and suicidal

thoughts. He presented with significant signs and symptoms

consistent with major depression. Plaintiff was diagnosed with

Major depression recurrent, rule out bipolar disorder; lower

back pain. He was admitted to the Behavioral Health Unit and

was started on a Citalopram trial.

On March 19, 2010, Plaintiff was seen at SNHMC by Dr.

Philip Sullivan, who reported that this was the first Behavioral

Health Unit admission for this 37-year-old white male with a

history of polysubstance abuse and dependence who presented with

acute depressive symptoms with suicidal ideation; he complained

of lethargy, anergia, anhedonia, and difficulty sleeping. He

3 did not need any detoxification from alcohol. To address his

major depression and neurovegetative symptoms, he was started on

the antidepressant medication, Citalopram. This medication was

specifically chosen because that is one of only a few that is

available at a very low cost at discount pharmacies. To address

his anxiety symptoms, a trial of Vistaril was initiated. His

affect was subdued, but positive. He was diagnosed with major

depression, severe, recurrent (296.33); anxiety disorder, NOS,

with features of generalized anxiety, social anxiety, panic

disorder; agoraphobia (300.00); and polysubstance abuse with a

history of polysubstance dependence (304.80). A Plaintiff’s

Global Assessment of Functioning on admission was 35 due to

acute and compelling suicidal ideation in the context of

polysubstance abuse and major depressive symptoms. On

discharge, the patient is reporting a significant improvement in

mood, commitment to sobriety, and resolution of all suicidal

thoughts (55).

On March 31, 2010, Plaintiff was seen at Community Council

of Nashua (now GNMHC) (“GNMHC[”]) for re-opening psychiatric

evaluation by Dr. Phillip Santora (psychiatrist) and Kate

Murphy, MA, Intake Clinician. Plaintiff reported that he had

been isolating more and had noticed a decrease in his

motivation. Plaintiff reported that he had slipped in his

sobriety, as well as suicidal thoughts within the last month.

4 Plaintiff reported feelings of hopelessness and is afraid to do

things, particularly interviewing. Plaintiff reported middle

insomnia and racing thoughts; increased energy and lack of

appetite; two previous hospitalizations in 1994 and 1995,

following suicide attempts, one of which was an overdose and the

other was cutting his wrist. Plaintiff also reported that when

he is drinking, he is unable to stop drinking. He reported that

he had previously been sober since May of 2009 until most

recently. Upon mental status evaluation, Plaintiff had a rigid

and tense attitude; depressed and anxious facial expressions;

somewhat fidgety body movements; pressured speech; an

overabundant thought process; a depressed and anxious mood; and

difficulties with middle insomnia. Plaintiff was diagnosed with

major depressive disorder; rule out anxiety disorder, NOS;

alcohol dependence, sustained partial remission; cocaine abuse,

sustained full remission, and R/O Personality Disorder, cluster

C type. He was assigned a GAF score of 50. The treatment plan

was that Plaintiff would be seen for cognitive behavioral

therapy with an emphasis on reduction of negative symptoms,

associated with client’s major depression. The focus of the

treatment would be on increasing coping skills in order to

stabilize moods and improve overall functioning[ ]. It was

noted that psychoeducation would be provided with regard to

Plaintiff’s substance abuse and its impact on overall

5 functioning and its effects on mental illness.

On May 6, 2010, Plaintiff was seen at GNMHC for a

Psychiatric Evaluation by Dr. Zlatko Kuftinec. Dr. Kuftinec

noted that Plaintiff reported difficulties with emotional

control. He stated that he had been anxious for the past number

of years and had been feeling depressed. He noted that recently

Plaintiff had been briefly hospitalized at the West Campus in

Nashua because of inability to cope and suicidal ideation. He

stated that Plaintiff reported a history of panic attacks and

social phobic response. He stated that Plaintiff claimed that

as far back as he can remember, perhaps when he was 14 or 15, he

had a severe fear of developing a condition that rendered him

paralyzed with fear. He stated that he would feel that he was

going to die; his heart was racing; he was sweating profusely;

and he had the opinion that he was getting crazy that would end

eventually with his trying to avoid the situation in which he

found himself confined. Plaintiff reported that he would worry

about the next attack or implication[s] of his illness stay[ing]

with him throughout his life. Plaintiff reported that there was

a period in his life when he was drinking extensively and was

taking all sorts of drugs but he claims that he discovered that

that didn’t help him and eventually he stopped drinking and

stopped taking non-prescription drugs altogether but his

condition only got worse. Upon mental status examination,

6 Plaintiff’s attention was difficult to direct and maintain and

his emotions were highly labile with evidence of moderate to

severe[] anxiety, panic attacks, depression, anger and

irritability. Regarding his affect, the predominant emotion

appeared to be anxiety in the form of panic attacks and anxiety

of anticipation. His memory was impaired for immediate recall,

recent and remote events, which was likely due to high degree of

anxiety rather than any organic causes. He had poor attention

span/concentration; marginal insight; equally questionable

judgment; and poor impulse control. He was diagnosed with Panic

disorder with agoraphobia and alcohol addiction in remission.

He was assigned a GAF score of 50.

On July 16, 2010 Plaintiff was seen at SNHMC by Dr. David

H. Walker. Plaintiff complained of persistent pain since

injuring his shoulder and back in early July. Plaintiff

reported that about one and a half to two weeks ago he was

sitting on the edge of the pool and fell to the ground injuring

the left shoulder. He described pain in the anterior chest wall

that radiated along his left shoulder into the trapezius area.

He reported that he worked in a facility that requires lifting;

had discomfort along the left trapezius, where palpation does

exacerbate his discomfort. There was some muscle spasm noted.

He was reproducibly uncomfortable at the anterior chest wall and

the anterior left ribs. Palpation reproduced his discomfort, as

7 does lifting his left arm. He was diagnosed with persistent

left shoulder pain, musculoskeletal in nature and chest wall

pain secondary to injury. Plan: A work release given. He was

advised to limit lifting and use of his left arm until he is

cleared by his regular doctor. A sling was given. Dr. Walker

reviewed daily gentle range of motion exercises with him. He

was also referred on to Orthopedics. Dr. Walker stated that he

may require PT evaluation and/or further diagnostic studies.

Dr. Walker stated that the concern is always a rotator cuff

injury with this trauma.

On August 25, 2010, Plaintiff was seen at Nashua Area

Health Center by Dr. Ajay Sharma. Plaintiff reported that his

hands have been aching for four to five months. Plaintiff

stated that he worked as a chef and was having a hard time

chopping vegetables and holding items. Plaintiff stated he had

been taking 2400 mg of Ibuprofen and it was not helping.

Plaintiff also stated that when he sat for a while he could not

get up because he was stiff. Patient rates pain on Numeric

Scale as 7 out of 10. On September 10, 2010, Plaintiff was seen

at Nashua Area Health Center, Dr. Ajay Sharma, for follow-up

joint and low back pain. Plaintiff stated that now he was

taking 3000 mg of Ibuprofen and the Flexeril together and it

helped with the pain but he got very tired in the morning.

Plaintiff reported Flexeril helped his back and that he was not

8 able to work with his hands. Plaintiff rated his pain on a

numeric scale as an 8 out of 10.

On September 9, 2010, Plaintiff visited Dr. Sharma. Dr.

Sharma reported that Plaintiff had tenderness over the

paraspinal muscles in the lumbar region. His right upper

extremity was mildly tender at the metacarpophalangeal joints

b/1. On September 24, 2010, Plaintiff was seen at Nashua Area

Health Center by Dr. Ajay Sharma. Plaintiff reported that his

hands still hurt and that now his knee hurt. Laboratory work

showed positive ANA and RF. A hand x-ray was normal. Plaintiff

rated his pain on a numeric scale as 9 out of 10. On October 8,

2010, Plaintiff was seen at Nashua Area Health Center, Dr. Ajay

Sharma for follow-up hand/arm pain. He reported that his hips

hurt and he still has the other pain too. Vicodin helped his

pain. Plaintiff rated his pain on a numeric scale as 9 out of

10.

On November 18, 2010, Plaintiff was seen at SNHMC by Dr.

Peter Row, and Deborah A. Smith PA-C. Plaintiff complained of

neck and back pain after a motor vehicle accident. Plaintiff

reported that when he woke up, he had neck and back pain.

Plaintiff reported that his arthritis felt worse because of the

car accident that occurred the day before. Plaintiff stated

that he did not have any Vicodin and he felt that he needed it

for his pain. The impression was that Plaintiff was status-post

9 motor vehicle accident with muscle strains and was narcotic

seeking. On November 18, 2010, Plaintiff was seen at Nashua

Area Health Center, by Dr. Ajay Sharma for a follow-up for joint

pain. Plaintiff reported that he was doing worse and that he

was in a car accident in Manchester on Saturday. Plaintiff

reported that he still had pain in hands and had an appointment

with rheumatology on December 7. Plaintiff rated his pain on a

numeric scale as 8 out of 10. Upon examination, Plaintiff had

decreased extension in the head and neck. An examination of the

spine, ribs and pelvis showed tenderness over the paraspinal

muscles in the lumbar region. An examination of the right left

lower extremity showed straight leg raise limited to 30 degrees

due to low back pain, and no numbness or paresthesias elicited.

An examination of the left lower extremity showed straight leg

raise limited to 30 degrees due to low back and neck pain.

On December 3, 2010 Plaintiff was seen at Nashua Area Health

Center, Dr. Ajay Sharma for a follow-up for low back pain.

Plaintiff reported that he was still having the pain on and off

and still had pain in his hands. Plaintiff reported that he

bent down for something and hurt his back. Plaintiff rated his

pain on a numeric scale as 8 out of 10. On December 8, 2010,

Plaintiff was seen at Nashua Rheumatology by Dr. John Gorman

FACR for a consultation for arthritic complaints. Plaintiff

reported that his arthritic problems began late last spring with

10 aching and stiffness in his hands. He reported that his MCP

joints were the worse areas, right greater than left, and lately

he developed swelling in his MCPs. He reported that aching and

stiffness has spread to his knees and MTPs of his feet, as well

as the wrists, elbows and shoulders. He reported that he had

severe generalized morning stiffness and gelling. He reported

that he was unable to exercise. He reported that he was laid

off from his job about four weeks ago. He reported that he

derived benefit from a Medrol Dosepak, and that Vicodin has been

of only modest benefit. It was reported that Plaintiff’s

shoulders have lost about 15% of ROM and show moderate anterior

tenderness. His wrists were tender and slightly swollen. He

had diffuse swelling and tenderness MCPs and PIPs of hands.

Grip strength was reduced especially on the right. The right

knee was slightly swollen and tender. His feet showed swelling

and tenderness throughout MTPs. From September 15, 2010, ANA

was positive at 1:40 (nucleolar), and rheumatoid factor positive

at 22 units. It was noted that Plaintiff likely had Rheumatoid

arthritis, and it was a relatively aggressive onset. It was

discussed that a poor prognosis [was likely if it was] not

treated aggressively.

On December 14, 2010, Plaintiff received his lab report

signed by Dr. John Gorham. The report indicated that Plaintiff

had probably had a past or present HCV infection. On January 3,

11 2011, Plaintiff was seen at Nashua Area Health Center. Dr. Ajay

Sharma noted that Plaintiff’s arthritis symptoms were related to

Hepatitis C. Plaintiff rated his pain on a numeric scale as 8

out of 10. On January 7, 2011, Plaintiff was seen at GNMHC at

Community Council, by Kate Murphy, LCMHC. Ms. Murphy discussed

referral to a chronic pain group. She reported that he

presented as well groomed but anxious. His speech was

pressured.

On January 13, 2011, Plaintiff was seen at St. Joseph’s

Internal Medicine by Donald Reape, MD, who noted that Plaintiff

had been diagnosed with Hepatitis C. Dr. Reape noted that

Plaintiff initially presented this summer with joint pain, hand

pain and swelling then he developed pain in hips, knees,

shoulders and feet. He was working as a chef. He was having

difficulty with chopping initially and then he just could not

keep up with work and was let go in September. Plaintiff was

being seen at the Nashua Area Health Center and was told that he

had rheumatoid arthritis and he was referred to Dr. Gorman.

When Plaintiff saw Dr. Gorman he noted an increase in his liver

tests and he ordered additional tests, which showed Hepatitis C.

He continued to struggle with pain in both hands, hips, knees

and feet. He had a lot of stiffness, worse in the morning.

Problem #1: Hepatitis C; Problem #2: Arthritis, generalized.

On January 28, 2011, Plaintiff was seen at St. Joseph Hospital

12 by Dr. James S. Heath. Plaintiff was diagnosed with Chronic

Hepatitis, Grade 2, and Stage 3 to 4, consistent with his

Hepatitis C liver biopsy.

The Adult Disability Report dated February 28, 2011, stated

that Plaintiff was claiming disability on the basis of panic

disorder, Hepatitis C, and Arthritis. The Adult Disability

Report is part of the Title II application process.

On March 8, 2011, Plaintiff was seen at GNMHC at Community

Council by Kate Murphy, LCMHC. Plaintiff reported feelings of

hopelessness and despair after learning that his Hepatitis C is

at stage 3 of 4. He presented as somewhat disheveled and with

more depressed mood. Plaintiff appeared to have difficulty

applying strategies effectively due to his symptoms. On March

9, 2011, Plaintiff was seen at Family Medical Center by Deborah

Dennis, MD. Plaintiff reported that he had been very fatigued.

He informed Dr. Dennis that he saw his primary care physician

who found that he had elevated liver enzymes and an elevated

rheumatoid factor and sent him to the rheumatologist, Dr.

Gorman. However, he was not able to see[ ]Dr. Gorman until late

November 2010. In the meantime, he was taking 2 to 3 Vicodin a

day plus 6 to 8 extra strength Tylenol a day, so that he was

taking up to 5000 mg of Tylenol a day for the pain in his

joints. When he did see Dr. Gorman he was anticipating starting

Methotrexate and Prednisone but wanted to check his liver first,

13 and ultimately did a test for Hepatitis C, which was positive.

Dr. Reap[e] has some of his old records and his note from

February 8, 2011, which suggested that his Hepatitis C is

genotype 1A and his viral load was greater than two million. A

liver biopsy done on January 28, 2011, showed that he had grade

two, stage three-four liver disease. Plaintiff reported that he

stopped drinking completely three years ago and since then has

only had one drink on two occasions. Currently the patient has

a pain contract with his primary care physician and takes

Percocet for his joint pains, Alprazolam for anxiety, and

recently Mobic for his joint pains because Ibuprofen upsets his

stomach. Plaintiff was assessed with Hepatitis C. By report, he

had advanced liver disease from chronic active Hepatitis C,

genotype 1A. Dr. Dennis reported that it was certainly unusual

to have advanced to this stage of liver disease so quickly since

his risks of contracting the disease began about 15 years ago.

Dr. Dennis stated that undoubtedly his heavy alcohol use played

a role in the velocity of fibrosis. Dr. Dennis noted that they

had talked about the treatment and some of its possible side

effects. However, at the moment, Plaintiff had no insurance

that would cover the cost. He anticipated being eligible for

Medicaid and he has already applied for that and felt that he

would have that support in about three months. Dr. Dennis noted

that she had explained that his progression would be slowed by

14 the fact that he had stopped drinking, but that he should get

treated as soon as possible to avoid end-stage liver disease

which could prohibit his ever getting treatment.

On March 9, 2011, Tom Dubois filled out the Adult Function

Report for the Plaintiff. On March 11, 2011, Kuftinec, MD, of

the GNMHC filled out a Mental Impairment Questionnaire for the

state agency. He described the plaintiff’s mood as depressed,

anxious, and his affect as flat. The AXIS I diagnoses were:

panic disorders; alcoholism in remission.

On March 18, 2011, Plaintiff was seen at SJ Internal

Medicine by Dr. Donald Reape. Plaintiff presented for a nurse

visit to initiate Hepatitis A and B series as ordered per Dr.

Dennis for Dr. Reape. On March 29, 2011, Plaintiff was seen at

SJ Internal Medicine again by Dr. Donald Reape. Plaintiff

complained of Rheumatoid Arthritis. He reported that his

musculoskeletal symptoms started last spring. He reported that

he worked as a cook and noticed he had difficulty using his

hands. He reported that he had pain in the fingers, wrists,

knees, hips and toes. He reported that he noticed loss of grip

strength. He reported that he was fatigued. He noted that he

saw his PCP, Dr. Ajay Sharma, and was diagnosed with Rheumatoid

Arthritis. He reported that he saw Dr. Gorman around November

and was presumptively diagnosed with Rheumatoid Arthritis. He

stated that he received prescriptions for Prednisone and

15 Methotrexate. He reported that he did not start them however as

he was subsequently diagnosed with Hepatitis C. He reported he

had muscle aching as well. He denied joint swelling except for

occasional swelling in the fingers. He reported that he had

been unable to work as a cook. He reported that he tried to go

back to school but had dropped out. The impression was that

Plaintiff had Arthralgia. It was suspected that this was from

Hepatitis C which can present with musculoskeletal symptoms of

joint and muscle pain.

On March 29, 2011, Plaintiff was seen at SJ Internal

Medicine for a rheumatology consultation by Dr. Gonzalez.

Plaintiff reported that his musculoskeletal symptoms started

last spring, and that he worked as a cook and noticed he had

difficulty using his hands. He reported that he had pain in the

fingers, wrists, knees, hips and toes. He noticed a loss of

grip strength. He reported that he was fatigued, and that he

had been unable to work as a cook. He reported that he tried to

go back to school but has dropped out. He complained of

fatigue, malaise, and sleep disorder. He complained of joint

pain, back pain, stiffness and muscle aches. The impression was

that Plaintiff had Arthralgia. It was suspected that this was

from Hepatitis C which can present with musculoskeletal symptoms

of joint and muscle pain.

On April 25, 2011, Plaintiff was seen at SJ Internal

16 Medicine by Dr. Donald Reape. It was noted that once Plaintiff

received Medicaid he would begin treatment for Hepatitis C. He

reported that he had been dealing with chronic pain and had been

taking five Percocets per day. He reported some breakthrough

pain.

On May 11, 2011, Plaintiff was seen by Bruce Goss, Ed.D.,

for a Psychiatric Evaluation. Dr. Goss reported that

Plaintiff’s mood was anxious, and that he seemed to live with a

fair amount of anxiety – especially in interpersonal

relationship[s]. Plaintiff reported having panic attacks and

that he had been depressed and was hospitalized March 2010. It

was reported that Plaintiff’s content of thought was slightly

OCD at times, and he showed some Agoraphobia. Dr. Goss noted

that Plaintiff had a marked degree of functional loss in social

interactions and daily activities; a constant degree of

functional loss in work-related task performance; and a

continual degree of functional loss in stress reaction. Dr.

Goss opined that his anticipated return to work was three to

four years.

On May 18, 2011, Plaintiff was seen at GNMHC (“GNMHC”) by

Carol Copadis. It was his first visit with this provider. It

was noted that Plaintiff was sober for two years and was seeing

a psychiatrist who retired. It was noted that Plaintiff’s

stressors included Hepatitis C and wife being tested for

17 Huntington’s. Plaintiff described himself as depressed and

anxious, and reported that at times had difficulty going out.

His medications were Xanax, Lorazepam and resume Citalopram. He

was assessed as moderately ill.

On May 20, 2011, Katherine Wescott, RN, evaluated the

claimant for medical eligibility for State of NH welfare

benefits, including Medicaid. On May 23, 2011, Joan Scanlon,

Ph.D. conducted a Comprehensive Psychological Profile-Adult.

The claimant was examined for 45 minutes. According to Dr.

Scanlon, the claimant exhibited mild pressure of speech that

improved once he was provided additional structure. He

described his present mood as “pretty sedated” since he was

initiated on Citalopram in the previous week, but previously,

had been engaging in crying “a couple of times a day,” as well

as having “really worked up, high anxiety” and sadness. He

acknowledged panic attacks that have largely improved, but were

previously marked by hyperventilation, heart palpitations,

“sweaty chills”, fear of losing control, a sense of impending

doom. The claimant reported reduced appetite, having lost

thirty pounds within the last four months, approximately, and

continued to describe his sleep as “rocky” marked by early

morning wakening three to four times per week, yet currently

improved with medication. He acknowledged a sense of internal

numbing, ongoing anhedonia, but denied periods of elation or

18 mood lability, but did report racing thoughts. Dr. Scanlon’s

diagnoses were mild dysthymic disorder, polysubstance abuse, in

remission, anxiety disorder, NOS, and pain disorder associated

with medical condition.

On May 31, 2011, the Plaintiff was medically approved for

Aid to the Permanently and Totally Disabled (APTD) program by

the Disability Determination Unit for the State of NH. The

reviewer was Katherine Wescott, RN. It was estimated that the

Plaintiff would need three to four years of treatment to return

to gainful work. Disability was determined on the basis of

meeting the mental impairment listings under the Social Security

Act. This was based upon a psychiatric evaluation performed by

Dr. Goss on May 11, 2011.

On June 14, 2011, Dr. John MacEachran, a nonexamining state

agency medical consultant, completed a physical RFC assessment.

Dr. MacEachran opined that Plaintiff could occasionally lift

and/or carry 20 pounds; frequently lift and/or carry 10 pounds;

stand and/or walk for at least 2 hours in an 8-hour workday; sit

for about 6 hours in an 8-hour workday; and was unlimited in

pushing and/or pulling. He also opined that Plaintiff was

limited in handling and fingering.

On July 7, 2011, Plaintiff visited Carol Copadis of the

GNMHC. Plaintiff was crying and tearful. It was reported that

Plaintiff had Hepatitis C and had been told that he has 25%

19 chance of survival. Plaintiff reported that Citalopram made him

dull. He was assessed as moderately ill and minimally worse.

The psychiatric medications were revised. On July 26, 2011,

Plaintiff was seen at SJ Internal Medicine by Dr. Reape.

Plaintiff complained of stiffness and pain back, hips, feet and

hands. Plaintiff was using the Percocet, which allowed him to

get out and walk. The impression was that Plaintiff had

Arthralgia, Hepatitis C, anxiety state, unspecified.

On August 2, 2011, Plaintiff was seen at GNMHC by Kate

Murphy, LCMHC. He reported frequent tearfulness and racing

thoughts which prevent him from sleeping. He reported

difficulty with acceptance of his medical condition and that of

his wife. Treatment included engaging in reality testing and

reframing of distorted thinking patterns. On August 16, 2011,

Plaintiff was seen at GNMHC by Kate Murphy, LCMHC. He continued

to have difficulty with depressive symptoms related to his

physical illnesses and his wife’s decline. Coping strategies

and self-care skills were reviewed. On September 2, 2011,

Plaintiff was seen at GNMHC by Tammy Numi, BS. Plaintiff

reported that he was still anxious over finances, but continued

to stay in school. On September 2, 2011, Plaintiff was seen at

his home by Tammy Numi, PRS of the GNMHC. It was reported that

Plaintiff had symptoms of major depressive disorder, as

evidenced by tearfulness, low mood and low motivation, which

20 impaired his ability to attend scheduled appointments, as well

as participate in outside activities. On September 13, 2011,

Plaintiff was seen at his home by Tammy Numi, PRS of the GNMHC.

It was reported that Plaintiff’s symptoms impaired his ability

to attend scheduled appointments, as well as participate in

outside activities.

On September 27, 2011, Plaintiff visited Kate Murphy,

LCMHC, of the GNMHC. During that session, continued anxiety and

effective use of coping skills were discussed. Plaintiff

discussed an interest in returning to work part-time. Ms.

Murphy worked with him regarding stressors and to challenge

distorted thinking patterns. On October 21, 2011, Plaintiff

visited Carol Copadis of GNMHC. Ms. Copadis stated that

Plaintiff was moderately ill and had minimally improved. On

December 14, 2011, Plaintiff was seen by Dr. Reape of SJ

Internal Medicine for a follow-up on anxiety. It was noted that

Plaintiff switched from Clonazepan to Lorazepam. Plaintiff

reported having difficulty sleeping. He was on Methadone, which

had been effective in pain relief. He continued to struggle

with sleep disturbance. Plaintiff was given a prescription for

Trazadone, but he found that he was groggy the next day.

Plaintiff stated that he fell asleep, but he got up every couple

hours. Dr. Reape noted that Plaintiff would be setting up an

appointment with Dr. Dennis to discuss treatment of Hepatitis C

21 in January. The impression of Dr. Reape was that Plaintiff had

insomnia; anxiety[,] state[] unspecified and Hepatitis C,

chronic active, genotype 1A. On January 18, 2012, Plaintiff

visited Ms. Copadis of the GNMHC. Plaintiff reported that he

was depressed, cried, was upset about wife, and had poor sleep.

Plaintiff was assessed as moderately ill and minimally worse.

On February 22, 2012, Dr. Reape completed a medical source

statement. Dr. Reape opined that Plaintiff could occasionally

lift and/or carry 20 pounds; frequently lift and/or carry less

than 10 pounds; stand and/or walk for at least 2 hours; sit for

about 6 hours; and was limited in pushing and/or pulling with

his upper extremities. Dr. Reape also opined that Plaintiff may

never engage in postural activities; was limited in gross hand

manipulation and in fingering; was limited in his ability to

work with temperature extremes, noise, dust, vibration,

humidity/wetness, hazards, fumes, odors, chemicals and gases;

and was not likely to sustain gainful employment.

C. ALJ’s Decision

The ALJ applied the five-step sequential analysis for

considering Social Security disability claims.2 At step two, the

2 To determine whether an applicant is disabled, the ALJ follows a five-step sequential analysis.

(a)(4). The applicant bears the burden, through the first four steps, of proving that his impairments exist and preclude him from working. Freeman v. Barnhart,

(1st Cir. 2001). The applicant must show that (1) he or she is not 22 ALJ found McDonough’s hepatitis C to be a severe impairment and

several other impairments to be non-severe. These included

several mental impairments and arthralgias,3 which doctors

initially assumed to be a symptom of rheumatoid arthritis but

later opined were a likely symptom of hepatitis C. The ALJ

noted that, by December 2011, McDonough’s arthralgias was

effectively managed by methadone treatment. Citing medical

opinions, the ALJ next found McDonough’s mental health

conditions to be non-severe because the evidence consistently

indicated that, for the majority of the time, McDonough

exhibited a normal mental status. In making this finding, the

ALJ considered the four broad functional areas for evaluating

mental disorders required by the applicable regulations, finding

that the record showed that McDonough had no limitations in

activities of daily living; mild limitations in social

functioning; mild limitations in concentration, persistence, or

pace; and no episodes of decompensation. See 20 C.F.R. §

1520a(c)(4).

engaged in substantial gainful activity; (2) he or she has a severe impairment; (3) the impairment meets or equals a specific impairment listed in the Social Security regulations; or (4) the impairment prevents him or her from performing past relevant work. At the fifth step, the Commissioner must show that a claimant has the RFC to perform other work that may exist in the national economy. Young v. Astrue,

(citing

(a)(4)). 3 Arthralgia is joint pain. Stedman’s Medical Dictionary 159 (28th ed. 2006). 23 After finding that McDonough’s hepatitis C did not meet or

medically equal a listed impairment, the ALJ found that

McDonough had the residual functional capacity (“RFC”) to:

perform light work . . . except he can stand or walk for 4 hours during an 8-hour workday. He must avoid climbing ladders, ropes, and scaffolds. He can frequently handle and finger . . . [and should] avoid more than moderate exposure to dust fumes, odors, gases, and poor ventilation. He must avoid temperature extremes . . . [and] hazards such as unprotected heights and dangerous moving machinery. He is limited to uncomplicated tasks . . . that can typically be learned in 30 days or less.

The ALJ rooted McDonough’s physical limitations in his hepatitis

C and the resulting symptomatic hand and foot pain. She also

discussed McDonough’s panic disorder and depression. She

discredited McDonough’s allegations regarding the limitations

arising from these impairments to the extent they were

inconsistent with her RFC determination. In particular, she

determined that the medical record failed to support McDonough’s

allegations of disability and that his reported activities of

daily living were “highly inconsistent” with a finding of total

disability. The ALJ explained that she limited McDonough to

uncomplicated tasks because of his use of pain medications and

their common side effects. In her discussion of McDonough’s

mental limitations, she explained that she accorded great weight

to the opinions of Drs. Martin and Scanlon, who found no more

than mild work-related mental health limitations. She thus

24 concluded that any opinions asserting marked limitations were

inconsistent with both objective and subjective record evidence.

The ALJ found that McDonough’s RFC limitations rendered him

unable to perform his past jobs as a waiter, gas station

attendant, cook, or baker. After considering McDonough’s age,

education, work experience, and RFC, the ALJ relied upon the

vocational expert’s testimony to support a finding that jobs

existed in significant numbers in the national economy that

McDonough could perform in the sedentary, unskilled occupational

job base. Therefore, the ALJ issued a finding of no disability.

II. STANDARD OF REVIEW

Under

(g), I am authorized to review the

pleadings submitted by the parties and the administrative record

and enter a judgment affirming, modifying, or reversing the

“final decision” of the Commissioner. My review “is limited to

determining whether the ALJ used the proper legal standards and

found facts [based] upon the proper quantum of evidence.” Ward

v. Comm’r of Soc. Sec.,

(1st Cir. 2000).

Findings of fact made by the ALJ are accorded deference as

long as they are supported by substantial evidence.

Substantial evidence to support factual findings exists “‘if a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support his conclusion.’”

25 Irlanda Ortiz v. Sec’y of Health & Human Servs.,

(1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of

Health & Human Servs.,

(1st Cir. 1981)). If

the substantial evidence standard is met, factual findings are

conclusive even if the record “arguably could support a

different conclusion.” Id. at 770. Findings are not

conclusive, however, if they are derived by “ignoring evidence,

misapplying the law, or judging matters entrusted to experts.”

Nguyen v. Chater,

(1st Cir. 1999) (per curiam).

The ALJ is responsible for determining issues of credibility and

for drawing inferences from evidence in the record. Irlanda

Ortiz,

. It is the role of the ALJ, not the

court, to resolve conflicts in the evidence.

III. ANALYSIS

McDonough argues that the ALJ erred by failing to (1)

classify several of his impairments as severe at step two; (2)

consider all of his impairments in determining his RFC; and (3)

properly evaluate the medical opinion evidence supporting his

claimed impairments. I address each argument in turn.

A. Step Two Findings

McDonough argues that the ALJ erred at step two when she

found that his mental impairments, arthralgias, and chronic

insomnia were not severe. At the second step of the sequential

26 analysis, the ALJ considers the medical severity of the

claimant’s impairments. If the ALJ finds that the claimant does

not have a medically severe impairment, he or she is not

disabled.

(a)(4)(ii). The First Circuit

has described the step two inquiry as a “de minimis policy,

designed to do no more than screen out groundless claims.”

McDonald v. Sec’y of Health & Human Servs.,

(1st Cir. 1986).

McDonough’s argument might have merit if the ALJ’s inquiry

had ended at step two. This court has consistently held,

however, that an error in describing a given impairment as non-

severe is harmless so long as the ALJ found at least one severe

impairment and progressed to the next step of the sequential

evaluation. See, e.g., Hines v. Astrue, No. 11-CV-184-PB,

, at *12-13 (D.N.H. Mar. 26, 2012); Lawton v. Astrue,

No. 11-CV-189-JD,

, at *7 (D.N.H. July 24, 2012);

see also SSR 85-28,

, at *3 (1985) (differentiating

claims denied at step two from those where “adjudication . . .

continue[s] through the sequential evaluation process”).

Because the ALJ found a severe impairment and continued through

the sequential analysis, any error here was harmless.

B. Failure to Account for All Impairments in RFC

McDonough argues that even if any error at step two was

harmless, the ALJ nevertheless erred in failing to consider the

27 limitations arising from McDonough’s mental impairments,

arthralgia, and chronic insomnia when crafting his RFC.

An ALJ’s RFC “must consider limitations and restrictions

imposed by all of an individual’s impairments, even those that

are not ‘severe.’” Stephenson v. Halter,

, 4-5. If

the ALJ acknowledged an ailment and then “deemed [it] to be non-

severe, he was still required to consider [it] in determining

[the] claimant’s RFC and in assessing whether she was precluded

from performing her past relevant work.” Id.; see

; SSR 96-8P,

, at *5 (July 2, 1996).

Although the ALJ must consider all non-severe impairments, he or

she is given considerable latitude in how to do so.

The ALJ discussed McDonough’s arthralgias at step two by

citing record evidence finding them well-controlled by various

pain treatments. Moreover, at step two the ALJ explained that

arthritic-type joint pain from arthralgias is symptomatic of

hepatitis C – a finding grounded in the notes of McDonough’s

treating physicians. The ALJ factored this pain into her RFC

determination, where she explained in detail McDonough’s

physical limitations credibly arising from such pain. This

constitutes sufficient consideration of McDonough’s arthralgias.

The ALJ also discussed each mental health diagnosis in

McDonough’s record, relying upon medical opinions and other

record evidence to describe why she found each mental impairment

28 to be non-severe. She expressly noted McDonough’s panic

disorder and depression at step four. She also explained that

in considering McDonough’s mental limitations she accorded great

weight to the opinions of Drs. Martin and Scanlon, who found

that McDonough’s mental impairments resulted in no more than

mild work-related mental health limitations.

McDonough argues that the ALJ’s consideration of her

mental impairments was nevertheless insufficient because step

four requires a more detailed mental RFC than the ALJ provided,

as well as an application of the psychiatric review technique

specified in the applicable regulations. See

.1520a.4 The ALJ applied the psychiatric review technique at

step two, finding either mild or non-existent limitations in

each functional area. Consequently, the ALJ permissibly found

McDonough’s mental impairments to be non-severe. See

§

404.1520a(d)(1). In explaining his RFC, she concluded that

McDonough’s activities of daily living were “highly

inconsistent” with a finding of total disability. Moreover, as

discussed above, the ALJ addressed McDonough’s mental

impairments at step four and cited medical opinions, including

4 The psychiatric review technique requires that when the ALJ assesses a claimed mental impairment, he or she must make a specific finding as to the degree of limitation in each of four broad functional areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. Id. at § 404.1520a(c)(3). 29 Dr. Martin’s psychiatric technique review form, to explain why

McDonough’s impairments resulted in no more than mild work-

related limitations. The ALJ consistently explained throughout

her decision why McDonough’s mental health impairments resulted

in at most mild limitations that would not affect his ability to

perform the range of jobs at a sedentary exertional level. The

ALJ’s RFC determination as it pertains to treatment of

McDonough’s mental health impairments is thus sufficiently

supported by the record. See Ramos v. Barnhart,

(1st Cir. 2005) (per curiam).

McDonough also notes that the ALJ did not mention his

insomnia anywhere in her decision even though on at least one

occasion, McDonough was diagnosed with insomnia and prescribed

medication to alleviate sleep-related problems. Tr. at 633-34.

McDonough also frequently reported difficulty sleeping to

medical providers. An ALJ, however, “is not obliged to

expressly address each of a claimant’s diagnoses,” but rather

must consider “the limiting effects of all the claimant’s

impairments, both severe and non-severe . . . . [T]he mere

diagnosis of [a] condition alone . . . reveals nothing about the

limiting effects on [a claimant’s] ability to function.”

Coppola v. Colvin,

(internal citations and

quotation marks omitted); see also NLRB v. Beverly Enters.

Mass., Inc.,

(1st Cir. 1999) (ALJ is permitted

30 to “consider all the evidence without directly addressing in

[his or her] written decision every piece of evidence submitted

by a party.”).

McDonough only claims that he was diagnosed with insomnia;

he provides no discussion of any limiting effects arising from

that diagnosis that the ALJ should have considered or

incorporated into the RFC. The one diagnosis of insomnia, by

Dr. Reape, is not accompanied by a discussion of any limiting

effects. Apart from a single reference by Nurse Copanas, who

marked a box for sleep disturbance as a symptom of McDonough’s

impairments, none of the other medical opinions mention a

diagnosed sleep disorder or insomnia. The only other available

evidence on the issue comes from McDonough’s complaints of

trouble sleeping, and the ALJ considered McDonough’s statements

concerning the intensity, persistence, and limiting effects of

his symptoms and determined that they were not credible to the

extent they were inconsistent with her RFC determination. Given

the dearth of evidence of functional limitations, I conclude

that the ALJ adequately considered McDonough’s insomnia in

crafting his RFC.

C. Opinion Evidence

McDonough next argues that the ALJ improperly weighed

medical opinions and evidence. I first outline the general

requirements for weighing such evidence before separately

31 addressing the ALJ’s treatment of the medical opinions relating

to McDonough’s mental and physical impairments.

An ALJ is required to evaluate “all of the relevant

evidence,” including each medical opinion. SSR 96-8p,

, at *5. Generally, an ALJ should accord the greatest

weight to the opinion of a claimant’s treating source, less

weight to an examining source, and the least weight to a non-

examining source. See

. This general rule,

however, is tempered by the ALJ’s responsibility to resolve any

conflicts in the evidence. Irlanda Ortiz,

. In

examining the record and arriving at her decision, the ALJ can

“piece together the relevant medical facts from the findings and

opinions of multiple physicians.” Evangelista v. Sec’y of

Health & Human Servs.,

(1st Cir. 1987). An

opinion from a treating source can be accorded little weight -

less than that accorded a non-treating source - if the ALJ finds

the opinion to be inconsistent with other substantial evidence

in the record. Ferland v. Astrue,

; SSR 96-2p,

, at *2 (July 2, 1996). In such circumstances, he

or she must give “good reasons” for the weight assigned to the

opinion and apply a number of factors to reach this

determination.5 Sibley ex rel. Sibley v. Astrue,

,

5 The factors are: the length of the treatment relationship and frequency of examination; the nature and extent of the 32 16 & n.5 (citing Polanco-Quinones v. Astrue,

(1st Cir. 2012)).

1. Mental Health Evidence and Opinions

McDonough’s arguments regarding the ALJ’s consideration of

the mental health record amount to two overarching critiques:

that the ALJ erred in (1) ignoring significant mental health

evidence; and (2) improperly weighing the various medical

opinions.

a. The ALJ Did Not Ignore Mental Health Evidence

McDonough contends that the ALJ erred in failing to discuss

the treatment notes of Dr. Kuftinec, Dr. Santora, Kate Murphy

and Tammy Numi. An ALJ cannot ignore evidence, but he need not

cite to every treatment note in the record, “so long as his

conclusion is ‘supported by citations to substantial medical

evidence . . . and the unaddressed evidence was either

cumulative . . . or otherwise failed to support the claimant’s

position.’” Dube v. Astrue,

, 34 n.11 (D.N.H.

2011) (quoting Lord v. Apfel,

(D.N.H.

2000)). The aforementioned treatment notes were either

incorporated into a medical expert’s opinion that the ALJ

relationship; the extent to which medical signs and laboratory findings, and the physician’s explanation of them, support the opinion; the consistency of the opinion with the record as a whole; whether the treating physician is a specialist in the field; and any other factors that tend to support or contradict the opinion.

(c)(2-6). 33 expressly considered or cumulative of the opinions of nurse

Copanas and Drs. Scanlon, Martin, Reape, and Goss. The ALJ met

her burden.6

McDonough also argues that the ALJ failed to address the

medical opinions of the psychiatrists who completed McDonough’s

intake and discharge summaries from his March 2010

hospitalization. As discussed above, an ALJ need not expressly

mention each piece of evidence in arriving at his or her

conclusion. If the evidence were a medical opinion from a

claimant’s treating provider, the ALJ would be required to

explain in writing the weight accorded to the opinion.

(citing

(d)(2)). Neither psychiatrist

qualifies as a treating source because neither had an ongoing

treatment relationship with McDonough beyond the intake and

discharge summaries. See

. Further, the

ALJ’s discussion of McDonough’s hospitalization is sufficient

consideration of the relevant evidence. She need not do more.7

6 McDonough also argues that the ALJ impermissibly relied upon her own lay assessment of McDonough’s mental impairments. That is not the case. The ALJ relied upon the medical opinions of Drs. Martin, Scanlon, and MacEachran in finding no disability. In arriving at her decision, the ALJ discussed the record evidence to explain why she accorded great weight to their respective opinions. In so doing, she did not turn a blind eye to conflicting evidence or medical opinions. 7 The New Hampshire Disability Determination Service found that McDonough’s mental impairments qualified him as disabled under state law and McDonough argues that the ALJ erred by failing to 34 b. Weight of Respective Opinions

McDonough also argues that the ALJ impermissibly accorded

great weight to the opinions of Drs. Scanlon and Martin and

insufficient weight to those of Dr. Goff and Nurse Copanas.

He first argues that the ALJ could not give substantial

weight to Dr. Scanlon’s opinion because it is based upon

incomplete knowledge gained from examining only two prior

medical records and conducting a single forty-five minute

psychological examination. See Doc. No. 11-1 (citing Padilla v.

Barnhart,

(1st Cir. 2006)). I reject this

argument. The ALJ did not base her determination solely on Dr.

Scanlon’s opinion. Instead, she also relied upon Dr. Martin’s

opinion finding McDonough’s mental impairments to be non-severe.

Dr. Martin adopted much of Dr. Scanlon’s opinion after

considering it alongside Drs. Goss’s and Kuftinec’s opinions,

the two other mental health opinions existing at the time of his

consultation. Dr. Martin also explained that he accorded Dr.

Scanlon’s opinion the most weight on the basis of the amount of

objective evidence that she provided “while the other sources

discuss those findings. I disagree. “A state determination is not, in and of itself, evidence of disability.” Dube,

n.16. Courts have thus found that ignoring an administrative conclusion is not error per se.

(citing Evans v. Barnhart, No. 02-459-M,

, at *6 (D.N.H. Dec. 4, 2003)). Moreover, the ALJ did not ignore the relevant evidence in the state record, but rather examined Dr. Goss’s opinion – the primary evidence underlying the state’s disability finding – and described why she accorded it limited weight. 35 offer little if any evidence to support any opinions they

assert.” Tr. at 477. There is no error if the ALJ relied only

in part upon Dr. Scanlon’s opinion and in part upon other

substantial evidence. See Coppola,

(finding

no error when the ALJ relied in part upon a consultant who

viewed an incomplete record, but primarily upon a second medical

opinion that considered a more complete record). Substantial

evidence thus supports the ALJ’s reliance upon the opinions of

Drs. Scanlon and Martin.

McDonough also argues that the ALJ impermissibly accorded

great weight to Dr. Martin, a non-examining physician.

McDonough contends that the incomplete mental health records

available to Dr. Martin, including Nurse Copanas’ RFC

assessment, prohibited any substantial reliance upon his

opinion. I disagree. The ALJ permissibly relied upon Dr.

Martin’s opinion, finding it to be consistent with “the

claimant’s subjective reports made during [Dr. Scanlon’s]

examination,” the objective evidence on record, McDonough’s

subjective statements, and his reported activities of daily

living. As explained above, Dr. Martin relied upon the opinions

of Drs. Scanlon, Kuftinec, and Goss in arriving at his decision.

He determined that Dr. Scanlon’s report provided the most

objective evidence whereas the others provided little support.

Dr. Martin’s opinion relied upon substantial evidence; the ALJ

36 could thus permissibly accord it great weight. See Keating v.

Sec’y of Health & Human Servs., 848 F.2d at 275 n.1. That Drs.

Scanlon and Martin did not receive later medical reports,

including Copanas’s evaluation, prior to issuing their opinions

is immaterial. Although Copanas’s opinion was drafted months

later, McDonough has presented no evidence of impairments or

limitations that came to light during the intervening time

period that were not present at the time of Dr. Scanlon’s

evaluation or Dr. Martin’s opinion. See Ferland,

.

McDonough also argues that Copanas’s and Dr. Goss’s

opinions deserved greater weight because they were consistent

with each other and with treatment records from Greater Nashua

Mental Health Center. I disagree. The ALJ explained that

Copanas’s and Dr. Goss’s opinions were inconsistent with record

evidence, ranging from McDonough’s actions and statements at Dr.

Scanlon’s evaluation to his reported activities. The ALJ

permissibly discredited these opinions, choosing instead to rely

upon Drs. Martin and Scanlon. She was entitled to come to this

conclusion. See Arroyo v. Sec’y of Health & Human Servs.,

(1st Cir. 1991) (per curiam).

2. Physical Opinion Evidence

McDonough takes issue with the relative weight accorded to

the opinions of Drs. MacEachran and Reape with respect to his

37 physical impairments. These two opinions are substantially

similar, though Dr. Reape found McDonough had a sedentary work

capacity and Dr. MacEachran found him capable of performing

light work. Dr. Reape also found additional environmental

limitations beyond those found by Dr. MacEachran.

In according Dr. MacEachran’s opinion great weight, the ALJ

found it to be “generally consistent with the totality of the

medical evidence on record.” Tr. at 16. Dr. MacEachran

comprehensively reviewed McDonough’s medical record, including

the treatment notes of Drs. Sharma, Dennis, Gonzalez, and Reape,

and described McDonough’s activities of daily living before

finding his complaints of pain to be only partially credible.

Tr. at 491. In deeming Dr. Reape’s opinion to be of “limited

weight,” the ALJ cited inconsistencies with both objective

record evidence and McDonough’s activities of daily living. She

noted that many of McDonough’s daily activities do not square

with Dr. Reape’s physical limitations. Dr. Reape’s opinion was

not wholly rejected, however; the ALJ incorporated his

environmental limitations concerning “hazards, temperature

extremes, and pulmonary irritants” into the RFC.

The ALJ composed the physical portion of the RFC from the

relevant facts and findings, see Evangelista,

,

incorporating Dr. Reape’s environmental limitations and choosing

to adopt Dr. MacEachran’s opinion regarding McDonough’s work

38 capacity. Dr. Reape was a treating physician for part of

McDonough’s alleged period of disability whereas Dr. MacEachran

was a non-examining medical consultant, but the ALJ was entitled

to accord greater weight to the latter opinion given her

explanation that it was more consistent with the medical

evidence. See Keating, 848 F.2d at 275 n.1. The ALJ cited to

the objective medical evidence of record, Tr. at 15, which was

“highly inconsistent” with McDonough’s reported activities of

daily living. She relied upon substantial evidence; hence there

was no error.8

IV. CONCLUSION

For the foregoing reasons, I grant the Commissioner’s

motion to affirm (Doc. No. 14) and deny McDonough’s motion to

reverse (Doc. No. 11). The clerk is directed to enter judgment

accordingly and close the case.

8 McDonough also contends that the ALJ’s finding that he could stand and walk for four hours in a workday impermissibly misstated Dr. MacEachran’s opinion, which concluded that McDonough was limited to standing and/or walking for two to four hours in an eight hour workday. Tr. at 485. Two hours, argues McDonough, is therefore the maximum duration that he can stand and/or walk on a sustained basis, which would limit McDonough to sedentary work. See SSR 96-8p,

, at *1. I am not convinced. Dr. MacEachran found that McDonough could stand and/or walk for up to four hours. It was permissible for the ALJ to incorporate the high end of this range into the RFC. See

(“RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.”). 39 SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

June 23, 2014

cc: Janine Gawryl, Esq. T. David Plourde, Esq.

40