UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Daniel Richard Otero, Sr.

v. Civil No. 14-cv-206-PB Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Daniel Richard Otero, Sr. appeals the Commissioner’s denial

of his applications for a period of disability and disability

insurance benefits. He argues that the Administrative Law Judge

(the “ALJ”) omitted a material nonexertional limitation from his

residual functional capacity (“RFC”) finding and impermissibly

made alternative findings at both step four and step five of the

Social Security Administration’s sequential evaluation process.

For the reasons I explain below, I deny Otero’s request for

remand and affirm the decision of the Commissioner.

I. BACKGROUND

Pursuant to this Court’s Local Rule 9.1, the parties have

submitted a statement of stipulated facts (Doc. No. 14). See LR

9.1. Because this statement is part of the Court’s record, I need not recount it here. Facts relevant to the disposition of

this matter are discussed as necessary below.

II. STANDARD OF REVIEW

(g) authorizes me 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.”

2 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

Otero is a 37-year-old man who previously worked as a

construction laborer and painter. On March 11, 2010, he filed a

claim for disability benefits alleging disability on the basis

of both physical and mental conditions, including right elbow

tendinitis, bipolar disorder, depression, and anxiety. See Tr.

at 410. On September 28, 2012, the ALJ denied his claim.

Otero now seeks remand of his claim for two reasons.

First, he argues that the ALJ erred by omitting his alleged

“severe limitations in social functioning,” Doc. No. 9-1 at 8,

from his RFC determination. Second, he argues that the ALJ made

reversible legal error by making alternative findings of

disability at both step four and step five of the sequential

evaluation process. I address each argument in turn.

A. Residual Functional Capacity

Before proceeding to step four of the sequential evaluation

process, the ALJ found that Otero has the following RFC:

3 [Otero] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). He is unable to climb ladders, and is able to occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. He must avoid temperature extremes, vibrations, and unprotected heights.

Tr. at 328. Thus, the ALJ found that Otero is constrained only

by exertional, and not by any nonexertional, limitations. The

ALJ then concluded at step four that Otero could return to his

previous work with this RFC. Based on a vocational expert’s

testimony, the ALJ also concluded at step five that Otero could

find other work in the national economy with his RFC.

Consequently, the ALJ found Otero not disabled and denied his

claim accordingly.

Otero contends that, in light of his alleged mental

illness, the ALJ’s RFC finding should have included an

additional nonexertional limitation recognizing that Otero

suffers from “severe limitations in social functioning,” Doc.

No. 9-1 at 8.1 The ALJ’s omission of this material nonexertional

limitation, Otero argues, was erroneous for three reasons: (1)

because the ALJ improperly discounted certain objective evidence

1 Otero’s briefing does not clearly identify the specific nonexertional limitation that he alleges. Construing his pleadings as generously as possible, I understand him to argue that his alleged mental illness causes him to suffer from “severe limitations in social functioning,” Doc. No. 9-1 at 8. As my analysis makes clear, however, Otero’s challenge against the ALJ’s RFC finding would fail regardless of the specific nonexertional limitation Otero claims his asserted mental illness to impose.

4 in the record that favors his claim; (2) because the ALJ

assigned insufficient weight to the opinion of Dr. Almos Nagy,

Otero’s treating physician; and (3) because the ALJ improperly

discredited Otero’s own subjective complaints of mental illness

symptoms. None of these arguments, however, establishes any

error made by the ALJ in reaching his RFC determination.

1. Otero’s Treatment Records

Otero argues that “the evidence in the administrative

record, at the very least, support[s] a conclusion he had severe

limitations in social functioning.” Doc. No. 9-1 at 8.

Specifically, he points to his behavioral health treatment

records from a number of mental health treatment facilities as

objective evidence that supports a finding of a nonexertional

limitation based on mental illness.2 These records suggest that

2 Otero also points to the hearing testimony of Dr. Gerald Koocher, a non-treating physician who reviewed Otero’s records, as objective evidence that supports his claim. At most, however, Dr. Koocher suggested only that Otero might have difficulty in “managing his anger on the job.” Tr. at 382. Otherwise, Dr. Koocher testified that Otero’s attention span, concentration, persistence, pace, and ability to follow “even relatively complex instructions” were not impaired; that Otero’s ability to manage the activities of daily living were not constrained by mental limitation; and that Otero could “engage in reasonable interpersonal relationships” aside from “temper blow up[s].” Tr. at 381-82. Nothing in Dr. Koocher’s testimony, therefore, definitively identifies a particular mental limitation that would restrict Otero’s ability to function within a workplace. To the contrary, and considering Dr. Koocher’s testimony in its entirety, it was reasonable for the ALJ to construe his testimony as evidence that Otero suffers from no such limitation. See Tr. at 377-88.

5 Otero suffers from chronic mental disorders, including anxiety,

depression, borderline personality disorder, and posttraumatic

stress disorder. The ALJ, Otero contends, erred by discounting

this objective evidence and instead finding that he has no

nonexertional limitations.

Otero’s argument, however, misconstrues the standard of

review that applies here. Under that standard, I “must affirm

the [Commissioner’s] resolution, even if the record arguably

could justify a different conclusion, so long as it is supported

by substantial evidence.” Rodriguez Pagan v. Sec’y of Health &

Human Servs.,

(1st Cir. 1987) (per curiam). Here,

the ALJ clearly addressed and considered the behavioral health

treatment records to which Otero points. See Tr. at 326-35.

But based on other evidence in the record, the ALJ concluded

that Otero has no nonexertional limitation caused by mental

illness despite the findings contained in those treatment

records. Tr. at 329. Substantial evidence in the record amply

supports this finding, including:

 In March 2011, one doctor noted that despite Otero’s numerous self-reported symptoms, Otero was observed to have normal flow of thought, mood and affect, judgment, and intellect, with only mildly poor insight (Tr. at 989);

 In December 2010, a mental health counselor described Otero as presenting in a “controlled fashion” (Tr. at 977);

6  At the hearing on July 9, 2012, Dr. Gerald Koocher, a non-treating physician who reviewed Otero’s records, opined that Otero’s alleged depression “appears to have improved significantly,” that his alleged anxiety “is not documented in his treatment records,” and that the record did not demonstrate that Otero suffered from a personality disorder (Tr. at 383);

 At the hearing on March 2, 2012, the ALJ noted that Otero presented as “verbal and articulate” and was able to “respond appropriately to questions” (Tr. at 327, 365).

This material demonstrates that substantial evidence in the

record supports the ALJ’s finding that Otero suffers from no

nonexertional limitation caused by mental illness. Thus, I am

not free to disturb that finding on appeal. See Tsarelka v.

Sec’y of Health & Human Servs.,

(1st Cir.

1988). Even if the behavioral health treatment records to which

Otero points conflict with the evidence that supports the ALJ’s

finding, it falls within the ALJ’s province to resolve

inconsistencies in the record. See

(“Resolution of

conflicts in the evidence is for the [Commissioner].”). That is

what the ALJ did here by addressing Otero’s behavioral health

treatment records but finding them contradicted by the rest of

the record. See Tr. 329-33. The behavioral health treatment

records, therefore, do not establish that the ALJ erred by

finding that Otero does not have a nonexertional limitation

caused by mental illness.

7 2. Weight Assigned to Dr. Nagy

Otero began to seek mental health treatment from Dr. Almos

Nagy in March 2011. Tr. at 1001. He visited with him nine

times between then and the ALJ’s September 28, 2012 denial of

his claim. In the mental RFC questionnaire for Otero, Dr. Nagy

opined that Otero had numerous mental impairments, including

moderate limitations in his ability to remember, understand, and

carry out detailed instructions, his ability to interact

appropriately with the public, and to maintain socially

appropriate behavior. Tr. at 1039. Dr. Nagy also co-signed a

report that diagnosed Otero with posttraumatic stress disorder

and a borderline personality disorder. Tr. at 1232. In

determining that Otero does not suffer from any nonexertional

limitation caused by mental illness, however, the ALJ assigned

only “little weight” to Dr. Nagy’s opinion. Tr. at 333. Otero

now contends that the ALJ was required to give more weight to

Dr. Nagy’s opinion.

Although an ALJ may not ignore evidence or judge matters

entrusted to experts, an ALJ can exercise discretion to decide

how much weight to extend to evidence in the record. See

Rodriguez Pagan,

. This discretion extends even to

the opinions of treating physicians, which “are not entitled to

greater weight merely because they were treating physicians.”

This is particularly true when the opinion of the treating

8 physician is merely conclusory. See Tremblay v. Sec’y of Health

& Human Servs.,

(1st Cir. 1982) (per curiam).

Here, the ALJ addressed and considered Dr. Nagy’s opinion

at length. See Tr. at 332-33. Based on other evidence in the

record, however, he decided to place little weight on Dr. Nagy’s

opinion and provided a reasoned explanation for this decision.

Tr. at 333. In particular, the ALJ suspected that, on at least

one occasion, Dr. Nagy “simply signed what the claimant filled

out.” Tr. at 333. He also noted that Dr. Koocher, who reviewed

Otero’s treatment records, opined that nothing in the narratives

that Dr. Nagy recorded in those records supported his findings

that Otero suffered from multiple limitations related to mental

health. Tr. at 332. Dr. Koocher also explained at length how

Dr. Nagy’s records throughout his treatment of Otero

contradicted each other and reached inconsistent and unsupported

findings regarding Otero’s mental health. See Tr. at 378-82.

In short, the ALJ addressed and considered Dr. Nagy’s opinion

but found that it was entitled to only little weight given the

rest of the evidence in the record. In doing so, the ALJ acted

permissibly and well within his discretion. See Sitar v.

Schweiker,

(1st Cir. 1982) (finding that a

treating physician’s “conclusory statements . . . could

reasonably have been rejected by the ALJ in the face of other

9 evidence”). Otero, therefore, points to no legal error caused

by the ALJ’s assignment of little weight to Dr. Nagy’s opinion.

3. Otero’s Subjective Complaints of Mental Illness

During the proceedings below, Otero made multiple

subjective complaints of his alleged mental illness. First, in

his May 2010 function report, he claimed that he “found it very

difficult to secure and maintain work[;] get along with others

and be in public.” Tr. at 618. Next, in his testimony at

hearings that the ALJ held on March 2, 2012 and July 2, 2012, he

testified that he suffered from mental health complications

involving anger and anxiety. Tr. at 349-53, 372-76. In

reaching his determination that Otero did not suffer from any

nonexertional limitation, however, the ALJ found that these

subjective complaints of mental illness were not credible.

Otero now argues that this finding was improper.

It is the ALJ's responsibility to determine whether a

claimant's statements about his symptoms are credible. See

(c)(3). Social Security Ruling (“SSR”) 96-7p

prescribes a two-step process that an ALJ must follow to

evaluate the veracity of a claimant’s subjective complaints.

SSR 96–7p,

, at *2. First, the ALJ must consider

whether the claimant is suffering from “an underlying medically

determinable physical or mental impairment[] . . . that could

reasonably be expected to produce the individual's pain or other

10 symptoms.”

Second, the ALJ must determine whether the

claimant's statements about his symptoms are substantiated by

objective medical evidence.

If not, the ALJ must consider

other relevant information to weigh the credibility of his

statements. Id.; see Guziewicz v. Astrue,

, 14.

The ALJ's credibility assessment “is entitled to deference,

especially when supported by specific findings.” Frustaglia v.

Sec'y of Health & Human Servs.,

(1st Cir.

1987). This is because the ALJ, not the reviewing court,

“observed the claimant, evaluated [the claimant’s] demeanor, and

considered how that testimony fit in with the rest of the

evidence . . . .”

Here, the ALJ found Otero’s subjective statements about the

severity of his symptoms to be inconsistent with objective

evidence in the record. See Tr. at 329-33. In reaching this

finding, the ALJ considered the objective evidence in the record

at length. See Tr. at 330-35. Moreover, substantial evidence

in the record supports the ALJ’s determination that Otero’s

alleged mental health symptoms were not as severe as Otero

claimed. The ALJ observed, for instance, that:

 The record indicated that Otero had strong ties to his family (Tr. at 327, 331);

 Otero functioned well enough to permit him to meet his girlfriend and get married during the period of his alleged disability (Tr. at 327, 331);

11  The record indicated that Otero was successful in group therapy sessions (Tr. at 327);

 The record did not reflect any problems that Otero has in interacting with his health providers (Tr. at 327); and

 The record indicated that Otero’s only area of difficulty was his relationship with his ex-wife, which Otero was increasingly able to tolerate (Tr. at 327, 331-32).

These facts in the record provide substantial evidence to

validate the ALJ’s finding that Otero’s subjective complaints of

severe mental illness were not credible. After reviewing this

evidence, the ALJ concluded that “[t]he evidence of record

reveals that the course of treatment and objective medical

findings are not consistent with [Otero]’s alleged severity of

symptoms and limitations.” Tr. at 329. That conclusion falls

squarely within the ALJ’s discretion. See Frustaglia,

.

Otero maintains, however, that certain objective evidence

in the record, including his behavioral treatment records and

the notes of Dr. Nagy, his treating psychologist, substantiate

his subjective complaints, precluding the ALJ from discrediting

them. But I have already concluded that the ALJ permissibly

discounted this evidence, finding it contradicted by the rest of

12 the record.3 That Otero’s subjective complaints may have been

corroborated by objective evidence that the ALJ permissibly

discounted does not, of course, make those complaints any more

credible or otherwise obligate the ALJ to accept them. See

Frustaglia,

n.1 (“Where there are

inconsistencies in the record, the ALJ may discount subjective

complaints of pain.”). And in any event, I am not free to

disturb the ALJ’s credibility finding if it is supported by

substantial evidence “even if the record arguably could justify

a different conclusion.” Rodriguez Pagan,

.

Otero’s argument essentially urges me to adopt a different

interpretation of the record from that of the ALJ. But because

substantial evidence supports the ALJ’s decision to place little

credibility with Otero’s subjective complaints, Otero’s argument

is a nonstarter. See Irlanda Ortiz v. Sec’y of Health & Human

Servs.,

(1st Cir. 1991). Thus, Otero points

to no error in the ALJ’s finding that Otero’s subjective

complaints were not credible.

3 Otero also points to his GAF scores as objective evidence supporting his credibility. He claims that the ALJ “only consider[ed] [his] GAF scores of 64 and 65” but failed to consider his low GAF scores of 40, 45, and 50. Doc. No. 16 at 2. In fact, however, the ALJ did consider all of Otero’s GAF scores contained in the record but permissibly chose to give “each of these very limited weight.” See Tr. at 333. Although the ALJ’s decision enumerates only some of these scores, nothing in the decision suggests that the ALJ relied on them in reaching his conclusions. See Tr. at 331.

13 For these reasons, I conclude that substantial evidence

supports the ALJ’s RFC finding, including his omission of any

nonexertional limitation caused by mental illness.

B. The ALJ’s Alternative Step Four and Step Five Findings

Next, Otero challenges the ALJ’s step four and step five

findings, including the ALJ’s decision to make alternative

findings at each step of the sequential evaluation process. At

step four, the ALJ concluded that Otero was not disabled because

his RFC did not preclude him from returning to his previous work

as a “painter/supervisor.” Tr. at 335. After making this

finding, however, the ALJ proceeded to make an alternative

finding at step five that Otero was not disabled because

sufficient jobs existed in the national economy that someone

with Otero’s RFC could perform. Tr. at 336. Otero argues that

both findings are unsupported by substantial evidence. He also

argues that the ALJ made reversible legal error by making an

alternative step five finding after finding Otero not disabled

at step four.

As an initial matter, I reject Otero’s contention that the

ALJ’s step five finding of no disability lacks substantial

evidence. Otero argues that the step five finding is defective

because the RFC that the ALJ posed to the vocational expert did

not include Otero’s asserted nonexertional limitations. But as

I have already explained, the ALJ’s RFC finding was proper and

14 supported by substantial evidence, and the ALJ made no legal

error by excluding any nonexertional limitation caused by mental

illness from that finding. As Otero recognizes, the vocational

expert testified that a hypothetical person with that RFC could

perform jobs existing in sufficient numbers in the national

economy. A vocational expert’s testimony provides substantial

evidence for a step five determination when the expert’s opinion

is based on a hypothetical that reflects an RFC finding

supported by substantial evidence. Perez v. Sec’y of Health &

Human Servs.,

(1st Cir. 1991) (holding that

when “hypothetical [is] supported by substantial evidence . . .

the ALJ [is] entitled to rely on the vocational expert’s

testimony”). The vocational expert’s testimony during the

proceedings below, therefore, provides substantial evidence that

validates the ALJ’s finding of no disability at step five.

Because substantial evidence supports the ALJ’s step five

determination that Otero is not disabled, Otero’s objection to

the ALJ’s antecedent step four determination is material only if

the ALJ committed reversible legal error by making alternative

findings at step four and step five. Otero presses this

argument, pointing to the language of

(a)(4),

which provides that if the Social Security Administration “can

find that you are disabled or not disabled at a step, we make

our determination or decision and we do not go on to the next

15 step.”

(a)(4). Otero argues that this

regulation precludes an ALJ from “go[ing] on to” step five after

finding a claimant not disabled at step four, as the ALJ did

here.

I disagree. Although the First Circuit has not yet

addressed the question of whether an ALJ may make alternative

findings at step four and step five, other courts have held that

it is permissible to do so. In particular, in Murrell v.

Shalala,

(10th Cir. 1994), the Tenth Circuit

considered and rejected the very argument that Otero raises

here. The language of

(a)(4), the court

determined, simply means that “a proper finding of disability

(at step three) or nondisability (at steps two, four, or five)

is conclusive, and, thus, cannot be overturned by consideration

of a subsequent step.” Murrell,

(emphasis

added). But, the court held, the regulation does not prohibit

an ALJ from making alternative findings at subsequent steps that

reinforce, rather than overturn, a decision made at a previous

step. See

Far from exceeding an ALJ’s discretion, the

court explained, such alternative findings strengthen an ALJ’s

decision by making it more thorough.

In other words, “the

integrity of a step-four finding is not compromised in any way

by the recognition that step five, if it were reached, would

dictate the same . . . result.”

16 I find the reasoning in Murrell persuasive.4 Moreover,

Otero cites no case holding that an ALJ may not make alternative

step four and step five findings, and this Court is otherwise

aware of no such authority. To the contrary, numerous courts

across the country have, like the Murrell court, concluded that

an ALJ makes no error by reaching alternative findings at steps

four and five. See, e.g., Julian v. Colvin, No. 4:13-CV-2167-

RLW,

, at *10 (E.D. Mo. Mar. 18, 2015)

(“[A]lternative findings are permissible, particularly to avoid

wasting valuable agency and judicial resources.”); Isabell v.

Comm’r, Soc. Sec., No. JKB-13-0479,

, at *2 (D.

Md. Oct. 29, 2013) (“There is . . . no reason to preclude

alternative findings, which can ensure that an ALJ’s opinion

reaches a valid result even if the ALJ commits an error at

either Step Four or Five.”); Lindsey v. Soc. Sec. Admin., No.

1:10-cv-00038-JAW,

, at *2 (D. Me. Jan. 10, 2011)

4 In any event, even if the ALJ erred by making alternative step four and step five findings, that error would be harmless and would not justify remand. “[R]emand is not essential if it will amount to no more than an empty exercise.” Ward v. Comm’r of Soc. Sec.,

(1st Cir. 2000). As I have explained, the ALJ’s step five finding is supported by substantial evidence as it presently stands. Remanding this case would require the ALJ to do nothing more than to simply vacate his step four finding and leave his step five finding intact. For that reason, even if the ALJ made legal error here – which he did not – that error would be harmless and would not warrant remand.

17 (alternative step five finding does not warrant remand).

Accordingly, I conclude that the ALJ made no legal error here by

finding Otero not disabled at both step four and step five.5

IV. CONCLUSION

For these reasons, I grant the Commissioner’s motion to

affirm her decision (Doc. No. 13) and deny Otero’s motion to

reverse (Doc. No. 9). The clerk is directed to enter judgment

accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

August 27, 2015

cc: Raymond J. Kelly, Esq. T. David Plourde, Esq.

5 Because the ALJ’s step five determination is supported by substantial evidence and because the ALJ made no reversible error by making alternative findings at step four and step five, I need not address Otero’s argument that the ALJ’s step four finding lacked substantial evidence.

18