UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Renee Marie Milton Chabot

v. Civil No. 13-cv-126-PB Opinion No.

U.S. Social Security Administration, Acting Commissioner

MEMORANDUM AND ORDER

Renee Chabot seeks judicial review of a ruling by the

Commissioner denying her application for disability insurance

benefits (“DIB”) and supplemental security income (“SSI”).

Chabot claims that the Administrative Law Judge (“ALJ”) erred in

considering the severity of several of her impairments and

because his Residual Functional Capacity (“RFC”) finding was not

supported by substantial evidence. For the reasons set forth

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

Commissioner.

I. BACKGROUND 1

A. Procedural History

On March 31, 2010, Chabot applied for DIB and SSI under

Titles II and XVI of the Social Security Act, alleging a

1 The background information is taken from the parties’ Joint Statement of Material Facts (Doc. No. 13). Citations to the Administrative Transcript are indicated by “Tr.” disability onset date of January 15, 2009. The Commissioner

denied Chabot’s applications on September 29, 2010. Chabot then

requested a hearing before an ALJ, which was held on October 13,

2011. Chabot, who was represented by counsel, testified at the

hearing, as did a vocational expert (“VE”). On November 4,

2011, the ALJ issued a decision finding that Chabot was not

disabled under the Social Security Act. On January 30, 2013,

the Appeals Council denied Chabot’s request for review, thereby

making the ALJ’s decision the final agency decision. Chabot

timely filed the instant action on January 30, 2013.

B. Medical History

Chabot was forty-four years old on her alleged onset date.

She has an associate’s degree and had previously worked as an

office manager, collections representative, gas station cashier,

store manager, and receptionist. Chabot claims that she became

disabled in 2009 due to the gradual worsening of a variety of

physical impairments, with her chief complaints involving her

lower back, right shoulder, right wrist, right hip and

headaches.

1. Treatment Records

Chabot’s medical record is largely composed of notes from

visits to Dr. Margaret Tilton, M.D., referrals to specialists,

emergency room visits, and physical therapy. 2 a. Dr. Tilton

Upon her doctor’s recommendation, 2 Chabot began treatment

with Dr. Tilton, a physiatrist, 3 in October 2009. Chabot

initially complained of back pain and numbness in her right

thigh. Tests produced lateral hip pain with a full range of hip

motion. After reviewing a lumbar spine MRI showing moderate

disc protrusion, 4 Dr. Tilton opined that Chabot’s lower back pain

was likely a combination of discogenic and mechanical factors.

Dr. Tilton also diagnosed right hip trochanteric bursitis 5 and

iliotibial band syndrome, 6 and possibly mild right SI joint

2 Chabot’s primary care physician, as noted throughout her medical record, is Dr. Heidi Crusberg. See, e.g., Tr. at 614. Neither party appears to rely upon Dr. Crusberg’s opinions of Chabot’s ailments. 3 A physiatrician is a “physician who specializes in . . . rehabilitative medicine” and physical therapy. Stedman’s Medical Dictionary 1493 (28th ed. 2006). 4 Disc protrusion is synonymous with a herniated disc and is the “protrusion of a degenerated or fragmented invertebral d[isc].” Id. at 549. 5 The trochanter is a “bony prominence . . . near the proximal end of the femur.” Id. at 2035. Bursitis is caused by the formation of bursae, which are “closed sac[s]” that contain fluid “usually found or formed in areas subject to friction.” Id. at 280-81. 6 The iliotibial band stretches from the “broad, flaring portion of the hip bone” to the shin bone. Id. at 947, 1989.

3 dysfunction. 7 Dr. Tilton noted upper lumbar 8 sensory deficits,

but found no other significant signs of radiculopathy. 9 On

October 8, 2009, Chabot received a right hip cortisone injection

and reported at a follow-up appointment that it “was extremely

helpful in relieving her lateral hip pain.”

Dr. Tilton also focused on Chabot’s right shoulder pain and

stiff neck. Examination found marked limitations to Chabot’s

range of motion, tenderness in the facet joints, and paresthesia

in the thoracic outlets. 10 A cervical spine x-ray revealed

“anterior spurring at C5 and C6,” which the radiologist

described as moderate degenerative change. Dr. Tilton diagnosed

Chabot with, in relevant part, “probable cervical spondylosis

with cervical myofascial pain syndrome[;][11] right thoracic

7 The sacroiliac (SI) joint joins the pelvis and lower back to the hip bone. Id. at 947, 1714. 8 The lumbar region relates to the lower back, or “the part of the back and sides between the ribs and the pelvis.” Id. at 1121. 9 Radiculopathy is a “disorder of the spinal nerve roots.” Id. at 1622. 10 Paresthesia is a “spontaneous abnormal usually nonpainful sensation (e.g., burning, pricking).” Id. at 1425. 11 Cervical spondylosis involves “degenerative changes in the invertebral disk and annulus and formation of bony osteophytes, which narrow the cervical canal . . . causing radiculopathy and sometimes myelopathy . . . pain may predominate with radicular signs . . . usually between C5 and C6 or C6 and C7.” The Merck 4 outlet syndrome[;][12] right shoulder impingement[; and] right hip

trochanteric bursitis, improved post cortisone injection.” Tr.

at 419. On December 1, 2009, Chabot underwent electrodiagnostic

testing for right hand paresthesia, revealing symptoms

“consistent with a clinical diagnosis of moderate carpal tunnel

syndrome.” 13 Tr. at 431.

On January 5, 2010, Chabot reported a severe headache,

stronger than a usual migraine and lasting the entire day. Dr.

Tilton noted that Chabot “dug out her old resting wrist splint

and has been wearing that to bed at night,” which reduced her

right hand paresthesia. Tr. at 341. Examination found normal

muscle tone and strength in her right upper extremity and mild

tenderness in her wrist, but with a full and pain free range of

motion. A wrist x-ray revealed normal alignment without

fracture or dislocation and soft tissues within normal limits.

On April 12, 2010, Chabot presented with neck pain in her

Manual 1893-94 (18th ed. 2006). 12 Thoracic outlet syndromes “are a group of poorly defined disorders characterized by pain and paresthesia[] in the hand, neck, shoulder, or arms. . . . [d]iagnostic techniques have not been established. Treatment includes physical therapy, analgesics, and, in severe cases, surgery.” Id. at 1908. 13 Carpal tunnel syndrome is a “compression of the median nerve as it passes through the carpal tunnel in the wrist.” Id. at 334-35.

5 upper cervical spine. She noted occasional headaches that

sometimes evolved into migraines, but Dr. Tilton noted that

“she is usually able to abort that.” Her right wrist remained

“workable,” without significant pain. Examination found at most

mild point tenderness over the spinous processes, and no

paraspinal tenderness or spasm. Chabot’s shoulders were

“markedly protracted,” with trigger points 14 in the upper

trapezius musculature and a diminished range of motion in the

right shoulder range. Chabot’s gait was “somewhat antalgic;”

she had difficulty rising to an upright posture but her gait

normalized after several steps. An x-ray showed chronic

degenerative changes to her cervical spine.

Between May 24, 2010 and July 2010, Chabot visited Dr.

Tilton multiple times presenting with recurrent flare-ups of

right hip pain, caused in part by her attempts to walk more

frequently, in twenty minutes intervals three times per week.

Her cervical symptoms remained stable, and Dr. Tilton

administered a trigger point injection in Chabot’s shoulder.

Chabot later reported that the injection had been helpful,

leaving her more comfortable, though not fully resolving her

14 Trigger points are muscular areas where “a relatively small input [of pain] turns on a relatively large output,” meaning that unexplained pain can radiate from these points to broader areas. Stedman’s, supra note 3, at 2032. 6 pain. Dr. Tilton also administered “right AC joint cortisone

injections.” On a follow-up visit Chabot noted that her right

shoulder was now pain free, though she continued to experience

centralized neck pain.

On August 12, 2010, Chabot reported lower back pain, which

she rated an “11 out of 10.” Examination showed bilateral

paraspinal spasm with no tenderness over the spinous process and

no SI joint tenderness. Straight leg raise testing was negative

and manual muscle testing was five out of five, with moderate

tenderness over the right hip greater trochanter.

On October 4, 2010, Chabot complained of headaches lasting

up to twenty-four hours associated with “photophobia,

phonophobia, and nausea and vomiting.” On November 15, 2010,

Chabot reported “snapping” sensations and neck pain leading to

weekly migraines.

On February 7, 2011, Dr. Tilton noted “exquisite”

tenderness in Chabot’s right hip trochanter. Her range of hip

motion was intact, her gate was normal, and her strength was

intact in her upper and lower extremities. Dr. Tilton diagnosed

an exacerbation of greater trochanteric bursitis and performed a

cortisone injection in Chabot’s right trochanteric bursa.

On May 25, 2011, Chabot presented with more right hip

difficulties. Noting that cortisone injections offered only 7 temporary benefits, Dr. Tilton said that she would like “to get

her back involved with physical therapy,” starting in an aquatic

environment. On June 29, 2011, Chabot again presented with

right hip pain. Examination revealed that her hip motion was

functionally intact, and “focal and exquisite tenderness [wa]s

noted over the greater trochanter on the right side extending

distally into the iliotibial band.” Her strength was five out

of five but her gait was antalgic, with Chabot favoring her

lower left extremity. Dr. Tilton performed an ultrasound of the

right greater trochanteric bursitis and observed that it

“appears to be more of a soft tissue injury.” The ultrasound

revealed “trochanteric bursitis and gluteus medius

enthesopathy.” 15 Based on these results, Dr. Tilton performed

another right hip cortisone injection.

On September 6, 2011, Chabot reported right hip pain

manifesting in sharp shooting pains and diminished tolerance for

walking. She reported that her recent injection was unhelpful,

described her neck pain as “severely worse,” and reported

increasingly frequent migraines. Chabot’s hip range of motion

was functionally intact, her strength was five out of five, and

her gait was normal. Dr. Tilton expressed that she “would like

15 Enthesopathy is “[a] disease process occurring at the site of insertion of muscle tendons and ligaments into bones or joint capsules.” Id. at 649. 8 to rule out the hip as being the etiology for her complaints of

right-sided pain. I think that SI dysfunction and possible low

back could be contributing factors.”

b. Referrals to Specialists

On October 23, 2009, Dr. Tilton referred Chabot to a doctor

of osteopathic medicine. Chabot reported constant lower back

pain affecting her right thigh that was made worse by twisting,

walking, and prolonged sitting. Examination found a good range

of motion in “lumbar flexion,” a negative straight leg raising

test, and pain on palpation of her lumbar paraspinal

musculature, but no pain on palpation of her lumbar spinous

processes. Chabot had five out of five strength throughout her

lower extremities, and decreased sensation to pinprick in her

right L4, L5, and S1 dermatomes. The doctor opined that Chabot

had “lumbar radiculitis, low back pain, and lumbar myosfascial

pain.” Tr. at 487.

On November 2, 2009, a spinal specialist administered a

lumbar epidural steroid injection. After she reported sixty

percent relief from the injection, Chabot received a second

injection on November 23, 2009. Chabot reported no relief from

this second injection, and was given a third injection on

December 21, 2009.

On March 11, 2010, Chabot underwent a neurological 9 examination with another specialist. Her cervical spine showed

full and normal flexion and extension, and she exhibited a

normal gait pattern and an ability to walk appropriately on her

heels and toes. The specialist found five out of five strength

throughout with normal sensations and reflexes. After reviewing

Chabot’s cervical spine x-rays, the specialist diagnosed

cervical degenerative disc disease without any discrete

neurological symptoms.

On November 4, 2010, Chabot returned to the spinal

specialist, reporting a gradually worsening lower back pain that

radiated to her thighs and was aggravated by standing, walking,

and sitting, but relieved by medication. Noting Chabot’s

seventy-five percent pain relief from prior epidural injections,

the specialist administered another injection.

On November 17, 2010, Chabot visited a headache specialist

and reported that she began getting migraines at the rate of one

to two per year beginning at age eighteen. In October 2010, her

“neck snapped,” leading to weekly migraines, along with daily

headaches that were treatable by Tylenol. The doctor

administered several medications for headache prevention. On

February 10, 2011, Chabot reported “only two migraines in a few

months,” with a minor headache every two weeks. The specialist

assessed her as “under fairly good control” and continued her 10 medications.

c. Emergency Room Visits

On April 26, 2010, Chabot presented at the emergency room

with constant and diffuse flank pain, “[a]t its maximum,

severity described as moderate.” The nurse practitioner opined

that Chabot was experiencing acute abdominal pain and low back

pain in the lumbar area with sciatica. Chabot returned on May

12, 2010 reporting moderate pain in the right hip and thigh but

denying any injury. An examination revealed moderate tenderness

and a limited range of motion in the hip and a full range of

motion and no tenderness in her neck and back. X-rays of the

hip showed normal alignment and no fracture. The doctor noted

that a muscle strain should be considered as causing her acute

thigh pain.

d. Physical Therapy

Chabot underwent physical therapy from October 28, 2009

until January 28, 2010. She attended several appointments in

late October and cancelled her next several appointments before

resuming therapy in January 2010. Because she had missed so

many appointments, the physical therapist expressed some

skepticism regarding Chabot’s commitment to getting better. See

Tr. at 435. The therapist discharged Chabot with a good

prognosis, with seventy percent improvement in her range of 11 motion and upper extremity strength. The therapist also

recommended that Chabot begin a home fitness program to retain

her strength. Tr. at 506.

Chabot engaged intermittently in physical therapy through

the summer of 2010, but never for an extended period of time.

She began aquatic therapy on June 7, 2011 before transferring to

land-based therapy after complaining that the arm and shoulder

movements caused numbness and tingling in her arms. She

continued with therapy through July 19, 2011.

2. Medical Opinion Evidence

On July 28, 2009, Chabot underwent a Functional Capacity

Evaluation with Debra McAuley, an occupational therapist.

McAuley opined that Chabot could work at a sedentary physical

demand level with some ability to perform light work. She was

able to sit for one hour continuously with minimal weight

shifting, neck rotation, and flexion, which was “significantly

greater than her perceived sitting tolerance of 15 minutes.”

Chabot was able to stand continuously for fifteen minutes and

showed increased discomfort when performing a test where she had

to stand and look down. Her walking tolerance was fifteen

minutes.

On September 28, 2010, Hugh Fairley, M.D., a state agency

physician, reviewed the available evidence of record and 12 completed a Physical RFC Assessment. Dr. Fairley listed

Chabot’s primary diagnosis as cervical and lumbar degenerative

disc disease and her secondary diagnosis as right shoulder

degenerative disease. He noted that examinations indicated

clinical signs of right shoulder tendonitis, bursitis, and AC

joint osteoarthritis. He opined that Chabot could frequently

lift/carry ten pounds; stand and/or walk two hours in an eight-

hour workday; sit six hours in an eight-hour workday;

occasionally balance, stoop, kneel, crouch, crawl, and climb

ramps or stairs; and never climb ladders, ropes, or scaffolds.

Dr. Fairley also opined that Chabot should avoid frequent

overhead reaching with her right arm and all exposure to

heights. Dr. Fairley cited clinical examinations by Dr. Tilton

and other specialists in arriving at his decision.

On May 25, 2011, physician assistant Peter Attenborough

completed and Dr. Tilton signed a Physical RFC Assessment. They

indicated that Chabot’s pain would frequently interfere with

attention and concentration, even for simple work tasks. They

further opined that Chabot could sit for fifteen minutes at a

time for a total of two hours in an eight-hour workday, stand

for ten minutes at a time for less than two hours of a workday,

and would need one to two unscheduled breaks every sixty

minutes. They limited Chabot to occasionally lifting up to ten 13 pounds, turning her head right or left, and climbing stairs, and

noted that she should never climb ladders and only rarely look

up or down, hold her head in a static position, stoop, or

crouch/squat. They indicated that in an eight-hour workday

Chabot could use her right hand for grasping or twisting objects

ten to fifteen percent of the time; her right fingers for fine

manipulation ten percent of the time; and her arms for reaching,

including overhead, five percent of the time. They opined that

her impairments would likely produce good days and bad days, and

that her impairments would likely lead to more than four days of

missed work per month.

3. Hearing and Personal Testimony

a. Function Report

On May 5, 2010, Chabot submitted a Function Report

recounting her daily activities, which included: helping prepare

her child for school, going to doctor’s or physical therapy

appointments, reading, watching television, feeding her pets,

making supper “when I’m not in severe pain,” helping her son

with homework, then showering before going to bed. She reported

problems getting comfortable due to neck, back, shoulder, and

hip pain, but no problems with personal hygiene. She noted that

she can make “complete meals if I am not in too much pain,” but

not meals with several courses. She stated that she prepares 14 meals four days per week, can no longer bake due to back pain,

and needs her boyfriend to make dinner when she is in too much

pain. She reported that she does laundry twice per week, though

her boyfriend brings it to get dried, and she vacuums when

needed, though her boyfriend vacuums more often. She noted that

she cannot lift a laundry basket and mows the lawn once every

two weeks.

Chabot stated that she leaves the home on a daily basis and

can do so alone. She noted that she can drive a car, shop once

per month for groceries and toiletries, pay bills, and manage

savings. She reported that she used to play guitar but can no

longer do so without pain. Chabot’s hobbies include reading,

watching television, listening to the radio, and using the

computer. According to Chabot, she can complete these

activities on a daily basis without problems so long as she

frequently changes positions.

Chabot reported that she experiences difficulties with

lifting, squatting, bending, standing, reaching (especially

overhead), walking, sitting, kneeling, stair climbing, and

completing tasks, but indicated no difficulty with memory,

concentration, understanding, following instructions, or using

her hands. She reported that she is able to lift ten pounds,

walk ten minutes before needing to rest for ten to fifteen 15 minutes, and sometimes bend over. She noted that she is able to

pay attention for one hour and follow instructions very well.

b. Hearing Testimony

On October 13, 2011, the ALJ asked Chabot for the “primary

reason” she cannot return to work. Chabot stated that “I have

trouble sitting still.” She also noted that she could not look

down for very long, that her “neck get[s] stuck in place,” and

that her “whole right side is kind of messed up.” Chabot

testified that she is unable to lift her right hand over her

head and cannot type because her wrists ache, her fingers go

numb, and she cannot look at the screen. She noted that she

wears a wrist brace for her carpal tunnel syndrome.

Chabot next described her migraines, saying that when they

arise she is hypersensitive to smell and needs to be isolated in

a dark room for twelve hours. These headaches occur once per

month and incapacitate Chabot from when she wakes until six in

the evening.

Chabot described her daily activities as waking up her son

and getting him ready for school, taking a shower, sitting on

the couch, speaking on the phone with her mother, and going to

appointments with her mother. Chabot stated that “I can drive

for a little bit and that’s why my mom goes with me because if I

have too much trouble then she drives.” She claims to have 16 taught her dog “to pick things up for me or to help me take my

jacket off because I can’t get it off.” Her boyfriend “helps a

lot as far as housework and laundry and dishes.”

At the hearing a VE considered Chabot’s past employment

history. The ALJ first asked the VE to consider a hypothetical

individual “limited to sedentary exertional work with only

occasional climbing ramps or stairs, no climbing ladders or

scaffolds, occasionally balancing, crawling, stooping, kneeling

crouching . . . [w]ith no overhead reaching the right arm” and a

need to avoid workplaces with unprotected heights. Based on

this hypothetical, the VE opined that many of Chabot’s prior

jobs would remain available to a person with such limitations.

The ALJ next asked the VE the same hypothetical with a

further limitation to work that is “simple and routine in

nature.” The VE found that the hypothetical individual could do

none of Chabot’s prior work, but that there were limited

available jobs for such a person in the national economy.

Returning to the original hypothetical, the ALJ asked the

VE to consider individuals limited to frequent fingering,

handling, and feeling with the right arm and hand. The VE said

that such a limit would not impede the individual from doing any

of Chabot’s prior work, but if the limit was reduced to

occasional fingering, handling, and feeling, then “it would be 17 difficult to do those jobs.” Even with this further limitation,

however, the VE found jobs existing within the national economy,

such as information clerk and surveillance systems monitor.

4. ALJ’s Decision

Applying the sequential evaluation process for evaluating

DIB and SSI claims as set forth in

(a)(4); 416.920(a), the ALJ found at step one that

Chabot had not engaged in substantial gainful activity since her

alleged disability onset date. At step two, the ALJ found that

Chabot had the following severe impairments: cervical

spondylosis with radiculopathy; lumbar disc protrusion; right

shoulder bursitis with rotator cuff tendinopathy; and right

carpal tunnel syndrome. He noted that Chabot alleged other

impairments, including iliotibial band syndrome with right hip

pain and migraines, but found no evidence of medically

acceptable clinical or diagnostic techniques to support a

conclusion of severity. He cited recent treatment notes to

support a finding that “[t]he record lacks evidence that either

of these impairments have the requisite effect on the claimant’s

ability to perform basic work activities.” Tr. at 54.

At step three, the ALJ found that none of the impairments

combined to meet or medically equal any of the Commissioner’s

Listing of Impairments. The ALJ then found that Chabot had the 18 RFC to perform

sedentary work as defined in 20 CFR [§§] 404.1567(a) and 416.967(a) with only occasional climbing of ramps or stairs, no climbing of ladders or scaffolds, occasional balancing, crawling, stooping kneeling and crouching; with no overhead reaching with the right upper extremity; and she would need to avoid hazardous work places that involve moving machinery, unprotected heights or similar hazards.

Tr. at 55. The ALJ found that the “objective medical evidence

does not support the claimant’s allegations about the location,

magnitude, frequency, or resultant limiting effects of pain.”

The ALJ next described evidence, ranging from MRIs to physical

examinations, to support his finding. He acknowledged that

Chabot experienced pain in her daily activities, but noted that

overall “[h]er ability to perform these activities indicates a

capacity to function above a disabling level.” Tr. at 57.

The ALJ next reviewed Dr. Fairley’s medical source

statement. After acknowledging that non-examining opinions as a

general matter do not deserve as much weight as examining

opinions, he nevertheless found that “this opinion does deserve

some weight, particularly . . . [because] there exist a number

of other reasons to reach similar conclusions (as explained

throughout this decision).” He noted that Dr. Fairley’s opinion

was grounded in a “careful consideration of the objective

medical evidence and the claimant’s allegations regarding

19 symptoms and limitations,” and accorded the opinion substantial

weight.

The ALJ next considered Dr. Tilton’s RFC, finding that

“[t]he opinion expressed is quite conclusory, providing very

little explanation of the evidence relied on in forming that

opinion and as discussed above is without substantial support

from the other evidence of record, which renders it less

persuasive.” Based on this reasoning, the ALJ gave the opinion

“little weight.”

At step four, the ALJ found that Chabot was capable of

performing past relevant work as a collections representative, a

receptionist, and an office manager. The ALJ also made an

alternative step five finding that Chabot could perform other

work that exists in significant numbers in the national economy,

citing the VE’s testimony that Chabot could perform occupations

such as Table Worker, Bench Hand Worker, and Order Clerk. The

ALJ noted that the VE’s reasoning was partially based upon her

professional experience in the field and that this personal

knowledge, while going beyond that offered in the Dictionary of

Occupational Titles, “enhances” any employment information

provided therein. The ALJ fully accepted the VE’s testimony in

arriving at his conclusion.

20 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.’” 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). 21 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.

To determine whether an applicant is disabled, the ALJ

follows a five-step sequential analysis.

(a)(4). In the context of a claim for Social Security

benefits, disability is defined as “the inability to do any

substantial gainful activity by reason of any medically

determinable physical or mental impairment” expected to result

in death or to last for a continuous period of not less than

twelve months.

(a). 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).

III. ANALYSIS

Chabot presents two arguments challenging the ALJ’s

decision. She first argues that the ALJ erred at step two in

determining that Chabot’s diagnoses of right thoracic outlet

syndrome, right iliotibial band syndrome with right greater hip

trochanteric bursitis, and headaches were not severe. Chabot

also argues that the ALJ’s RFC is not supported by substantial 22 evidence. I consider each argument in turn.

A. Step Two Severity Findings

At the second step of the sequential 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, then he or she will find that the claimant is

not disabled.

(a)(4)(ii). Chabot’s

arguments here focus on the First Circuit’s description of step

two’s severity requirement 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); see also SSR 85-28,

, at *3-4 (1985). Under

this standard, Chabot argues, the ALJ impermissibly erred in

finding that her right thoracic outlet syndrome, right

iliotibial band syndrome with right greater hip trochanteric

bursitis, and headaches were not severe.

Chabot’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, 23 No. 11-CV-189-JD,

, at *7 (D.N.H. July 24,

2012); see also SSR 85-28,

, at *3 (differentiating

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

continue[s] through the sequential evaluation process”). 16 Had

Chabot’s claim rested solely on her diagnoses of right thoracic

outlet syndrome, right iliotibial band syndrome with right

greater hip trochanteric bursitis, or headaches, then the ALJ

should arguably have deemed any of these impairments severe

under the First Circuit’s de minimis standard. See Baker v.

Astrue, No. 10-cv-454-SM,

, at *9 (D.N.H. Nov.

15, 2011), rep. & rec. adopted

(D.N.H. Jan. 3,

2012). “But where, as here, the ALJ found other severe

impairments, and his analysis proceeded to the determination of

an RFC, his decision not to deem [claimant]’s shoulder condition

a severe impairment was, at worst, a harmless error.”

B. Residual Functional Capacity Finding

Chabot also voices a second, more colorable, but ultimately

unmeritorious argument – that the ALJ’s RFC determination is not

supported by substantial evidence. Specifically, Chabot argues

16 In Hall v. Astrue, upon which Chabot relies, the ALJ found no severe impairment at step two and failed to continue through the sequential evaluation process. No. 11-CV-134-JL,

, at *6-7 (D.N.H. Nov. 29, 2011), rep. & rec. adopted sub nom. Hall v. U.S. Soc. Sec. Admin., Comm’r,

(D.N.H. Dec. 19, 2011). 24 that the ALJ impermissibly failed to consider the ailments not

found to be severe at step two in his RFC assessment. Further,

she claims that the ALJ’s finding that she retained a sedentary

RFC with occasional postural limitations is not supported by

substantial evidence. I consider each of these contentions in

turn.

1. The RFC Accounted for All of Chabot’s Impairments

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

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) (“In

assessing RFC, the adjudicator must consider limitations and

restrictions imposed by all of an individual’s impairments, even

those that are not ‘severe.’”).

The ALJ must generally consider non-severe impairments, but

he or she is given considerable latitude in how he or she

chooses to do so. In Hines, this court found that the ALJ’s

citation to medical evidence of Hines’s fibromyalgia in his

decision was sufficient to suggest that he considered that 25 impairment when crafting his RFC, especially when the record

contained “nothing to suggest that he did not.”

, at *13; see also Baker,

, at *9 (“Here,

the ALJ noted the medical evidence of Baker’s shoulder condition

in his decision . . . and also acknowledged her complaints of

shoulder pain . . . Thus, there is ample evidence in the record

to suggest that the ALJ did consider Baker’s shoulder condition

when he determined her RFC, and nothing to suggest that he did

not.”); Shaw v. Astrue,

(finding that the

ALJ’s failure to discuss a mental impairment in his RFC

determination was harmless since the ALJ posed several

hypotheticals to the VE that included mental limitations).

This court has also emphasized that the claimant has the

burden to show that any error at step two is outcome

determinative. Lawton,

, at *7 (error in finding

given impairment non-severe at step two is considered harmless

“unless the claimant can demonstrate that the error proved

outcome determinative in connection with the later assessment of

[her RFC]”); Shaw,

(same).

Here, the ALJ referenced each impairment in his decision.

He did not discuss right thoracic outlet syndrome at step two,

but extensively discussed Chabot’s shoulder injuries during the

hearing and in his RFC. These considerations led the ALJ to 26 restrict Chabot by imposing “limitations in overhead reaching

and a lifting restriction of ten pounds.” See Tr. at 15, 56.

The ALJ also engaged in a lengthy discussion of Chabot’s

right iliotibial band syndrome with right greater hip

trochanteric bursitis and headaches during his step two

analysis, basing his findings on medical reports from Chabot’s

examining physicians. Tr. at 53-54. Here, as in Hines

and Baker, there is substantial evidence in the record to

suggest that the ALJ considered Chabot’s hip and headache

impairments in determining her RFC, and nothing to suggest that

he did not.

2. The ALJ Appropriately Weighed the Evidence of Record

Chabot’s next argument centers upon the relative weight

that the ALJ accorded to two medical opinions. She contends

that the ALJ failed to accord sufficient weight to a treating

physician’s RFC opinion while giving too much weight to the RFC

of the non-treating, state agency physician.

An ALJ is required to evaluate each medical opinion as part

of “all of the relevant evidence.” 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 27 responsibility to resolve any conflicts in the

evidence. Irlanda Ortiz,

. In examining the

record and arriving at his 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. SSR 96-2p,

, at *2 (July 2,

1996); see Keating v. Sec’y of Health & Human Servs.,

, 275 n.1 (1st Cir. 1988) (“It is within the [ALJ’s] domain

to give greater weight to the testimony and reports of [non-

examining] medical experts.”); Ferland v. Astrue,

(“[A]s a general matter, an ALJ may place greater reliance on

the assessment of a non-examining physician where the physician

reviewed the reports of examining and treating doctors and

supported his conclusions with reference to medical findings.”

(internal quotation marks omitted)).

Should the ALJ find inconsistencies between the opinion and

other evidence in the medical record, however, he or she must

give “good reasons” for the weight assigned to the opinion and

apply a number of factors to any treating source’s medical 28 opinion that is not given controlling weight. 17 Sibley ex rel.

Sibley v. Astrue,

, 16 & n.5 (citing Polanco-

Quinones v. Astrue,

(1st Cir. 2012)). I

turn first to the ALJ’s examination of Dr. Tilton’s treating

source opinion and then consider his examination of Dr.

Fairley’s non-examining source opinion.

a. Dr. Tilton’s Opinion

Chabot contends that as a treating source, Dr. Tilton’s

opinion should have been accorded controlling weight, leading to

a finding of disability. Chabot declares the ALJ’s

consideration of Dr. Tilton’s opinion to be “quite conclusory,”

stating that it “does not satisfy the requirement that he

provide specific reasoning for affording little weight to her

opinion.” The Commissioner contends that the ALJ thoroughly

evaluated Dr. Tilton’s opinion and reasonably assigned it

limited weight due to its inconsistencies with other substantial

evidence of record. I agree.

An ALJ’s decision must contain “specific reasons” for the

17 The factors are: the length of the treatment relationship and frequency of examination; the nature and extent of the 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). 29 weight given to a treating source opinion, supported by the

evidence in the case record, “and must be sufficiently specific

to make clear to any subsequent reviewers the weight the

adjudicator gave to the treating source’s medical opinion and

the reasons for that weight.” SSR 96-2p,

, at

*5; see also SSR 96-8p,

, at *7 (“The RFC

assessment must always consider and address medical source

opinions. If the RFC assessment conflicts with an opinion from

a medical source, the adjudicator must explain why the opinion

was not adopted.”).

Chabot focuses her argument on the paragraphs describing

Dr. Tilton’s and Dr. Fairley’s medical source opinions, both of

which are admittedly brief. In doing so, however, she ignores

earlier portions of the decision in which the ALJ cited to the

record to support each of his findings. These citations show

notable inconsistencies between Dr. Tilton’s opinion and other

evidence in the record – including evidence gleaned from Dr.

Tilton’s own examinations and treatment notes. They further

provide evidence that the ALJ considered the required factors,

especially the extent to which the opinion is supported by

medical signs and laboratory findings and the consistency of the

opinion with the record as a whole. See

(c). 30 For example, in explaining his decision to omit Chabot’s

claims of hip pain and headaches as severe impairments, the ALJ

cites to Dr. Tilton’s treatment records from late 2011 for

support. These records include Dr. Tilton’s opinion that

Chabot’s hip problems are either a soft tissue injury or

symptomatic of her recurring back problems. In considering

Chabot’s headaches, the ALJ cited headache specialist reports

from February 2011 stating that her headaches only occurred

several times per month as an explanation why any claims of

severity were unsupported by the medical record. Tr. at 53-54,

701. In discussing the severe impairments concerning Chabot’s

back pain, shoulder pain, and wrist pain, the ALJ cited at

length to the record, including to MRI examinations, x-rays,

treatment notes, and notes of progress made in physical therapy.

Tr. at 55-57.

Moreover, these observations are expressly incorporated

into the ALJ’s discussion of each medical source opinion. The

ALJ notes that Dr. Fairley’s opinion “does deserve some weight,

particularly in a case like this in which there exist a number

of other reasons to reach similar conclusions (as explained

throughout this decision),” while noting that Dr. Tilton’s

opinion “as discussed above is without substantial support from

the other evidence of record, which renders it less persuasive.” 31 Tr. at 58 (emphases added).

To support her contention that Dr. Tilton’s opinion should

be given controlling weight, Chabot cites information from the

record to support a finding of disability. Her focus here

misses the mark. Although an ALJ cannot simply ignore the body

of evidence opposed to his view, Dunn v. Apfel, No. Civ-98-591-

B,

, at *8 (D.N.H. Dec. 10, 1999), it is the

ALJ’s job to clearly consider a source’s opinion and weigh it

against any inconsistencies with the record evidence. See,

e.g., Arroyo v. Sec’y of Health & Human Servs.,

(1st Cir. 1991) (per curiam). The ALJ did so here. Tr. at 53-

57.

b. Dr. Fairley’s Opinion

Chabot also argues that the ALJ afforded too much weight to

Dr. Fairley’s medical opinion. She first contends that the ALJ

should not have relied on Dr. Fairley’s assessment because he

submitted it over one year prior to the hearing and thus did not

consider over one year’s worth of record evidence in forming his

opinion.

A medical opinion may not be accorded significant weight if

it is based on a materially incomplete record. Alcantara v.

Astrue, 257 Fed. App’x 333, 334 (1st Cir. 2007). Nevertheless,

an ALJ is entitled to accord substantial weight to an RFC 32 opinion if the treatment notes postdating the medical source’s

assessment are available to the ALJ and document the same

complaints of pain and clinical findings. See Wenzel v. Astrue,

; Ferland,

(“[A]n ALJ may

rely on such an opinion where the medical evidence post-dating

the reviewer’s assessment does not establish any greater

limitations, or where the medical reports of claimant’s treating

providers are arguably consistent with, or at least not clearly

inconsistent with, the reviewer’s assessment.” (internal

citations omitted)).

Here, most of Chabot’s treatment and diagnoses post-dating

Dr. Fairley’s RFC were consistent with the state agency

reviewer’s assessment. The record shows, however, that Chabot

reported more frequent hip pain and headaches in the year post-

dating Dr. Fairley’s assessment, and that the assessment thus

does not sufficiently consider these two alleged impairments,

both of which the ALJ found to be non-severe.

Chabot began presenting with headaches in October 2010, and

reported weekly migraines after experiencing a “snapping”

sensation in her neck in November 2010. By February 2011,

however, Chabot reported only several migraines within the past

few months, and a headache specialist assessed her as “under

fairly good control.” Although an ALJ, as a layperson, may not 33 interpret medical data in functional terms without a supporting

medical opinion, Nguyen,

, he or she may

permissibly make common-sense judgments about functional

capacity based on medical findings, as long as he or she does

not overstep the bounds of a layperson’s competence and render a

medical judgment. Gordils v. Sec’y of Health & Human Servs.,

(1st Cir. 1990). Here, the ALJ permissibly

cited to the specialist’s findings that the headaches were under

fairly good control, and Chabot’s report that migraines had

decreased to less than one per month, to find no severe

impairment worth incorporating into his RFC.

Chabot’s complaints of hip pain and diagnosis with greater

trochanteric bursitis pre-date Dr. Fairley’s assessment, but

Chabot’s additional reports of hip pain in 2011, and the

treatment records surrounding them, could be seen as further

medical findings. Over the course of 2011, Dr. Tilton performed

additional cortisone injections on Chabot’s right hip,

recommended that she enter therapy, and ordered an ultrasound of

the hip, noting that “it appears to be more of a soft tissue

injury.” After the ultrasound, Dr. Tilton diagnosed Chabot with

“trochanteric bursitis and gluteus medius enthesopathy.”

The ALJ relies on these 2011 reports in finding Chabot’s

bursitis to be non-severe. Standing alone, determining that the 34 a soft tissue injury imposes no functional limitations might be

viewed as an impermissible lay judgment. Along with these

findings, however, the ALJ relies on a medical opinion based on

a September 2011 physical examination assessing Chabot’s

functionality. At this examination, Dr. Tilton found Chabot’s

hip range of motion to be functionally intact, along with

negative results for a straight leg test, full knee extension,

and motion intact in the left hip. Each of the functional

findings at this examination was not limited, and there were no

additional findings of functional limitations. The ALJ

permissibly relied upon this medical opinion, not Dr. Fairley’s

prior opinions, in discussing Chabot’s hip impairments. There

was thus no error.

Chabot also contends that Dr. Fairley’s analysis is brief,

at best, and thus should not have been afforded substantial

weight. This argument also fails because, as explained above,

the ALJ extensively discussed the medical record at large, and

expressly incorporated these findings to support Dr. Fairley’s

medical assessment.

I emphasize that the record also contains substantial

evidence supporting Chabot’s allegations of disabling physical

impairments, and I note that Chabot ably brings much of this

information to my attention. It is the ALJ’s role, however, not 35 mine, to weigh and resolve conflicts in the

evidence. See Rodriguez,

(citing Richardson v.

Perales,

(1971)). The record here could

arguably justify a different conclusion, Lizotte v. Sec’y of

Health & Human Servs.,

(1st Cir. 1981), but

the ALJ’s decision in assessing the medical opinions is

supported by substantial evidence.

IV. CONCLUSION

For the foregoing reasons, I grant the Commissioner’s

motion to affirm (Doc. No. 11) and deny Chabot’s motion to

reverse (Doc.

No. 8https://ecf.nhd.uscourts.gov/doc1/11701233434). The clerk

is directed to enter judgment accordingly and close the case.

SO ORDERED

/s/Paul Barbadoro Paul Barbadoro United States District Judge

May 20, 2014

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

36