UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

William E. Eley

v. Civil No. 14-cv-165-JL Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

William E. Eley has appealed the Social Security

Administration’s denial of his application for a period of

disability and disability insurance benefits. An administrative

law judge at the SSA (“ALJ”) ruled that, despite Eley’s severe

impairments (degenerative disc disease of the lower spine and

obesity), he retains the residual functional capacity (“RFC”) to

perform sedentary work with specified limitations, allowing him

to perform jobs that exist in significant numbers in the national

economy in significant numbers and, as a result, is not disabled.

See

(a). The Appeals Council later denied

Eley’s request for review, see

§ 404.968(a), with the result

that the ALJ’s decision became the final decision on Eley’s

application, see id. § 404.981. Eley then appealed the decision

to this court, which has jurisdiction under

(g)

(Social Security). Eley has filed a motion to reverse the decision, see L.R.

9.1(b)(1), challenging it as unsupported by substantial evidence.

Specifically, Eley argues that the ALJ erred in assessing his RFC

by (1) giving little weight to the opinion of Eley’s treating

physician, and (2) giving greater weight to the opinion of a

non-examining agency physician. The Acting Commissioner of the

SSA has cross-moved for an order affirming the ALJ’s decision,

see L.R. 9.1(e), defending the ALJ’s handling of the opinion

evidence. After careful consideration, the court agrees with the

Acting Commissioner that the ALJ did not err in evaluating the

opinion evidence, and therefore denies Eley’s motion to reverse

(and grants the Acting Commissioner’s motion to affirm) the ALJ’s

decision.

The ALJ found that Eley retained the RFC to perform

sedentary work with a few limitations, including that he requires

the opportunity to stand up and sit down as needed. In

evaluating Eley’s RFC, the ALJ had two medical opinions at his

disposal: that of Eley’s treating physician, Dr. Daniel Calores,

and that of a state agency reviewing physician, Dr. Hugh Fairley.

In July 2011, Dr. Fairley, who did not examine Eley,

reviewed Eley’s medical records and prepared an assessment of his

RFC. Dr. Fairley acknowledged Eley’s chronic lower back pain,

leg pain and “significant lumbar degen[erative] disease,” and

2 noted that “[e]pidurals & RFAs provided no lasting benefit.”

Admin. R. at 423. Nevertheless, Dr. Fairley opined that Eley was

capable of working full time and that he had the capacity to lift

and/or carry 20 pounds occasionally and less than that

frequently; he could stand and/or walk at least two hours but no

more than four hours in an 8-hour workday; and he could sit for

about six hours in an 8-hour workday.

In June 2012, Eley’s treating physician, Dr. Calores, made a

different assessment of Eley’s RFC, believing that Eley’s chronic

low back pain imposed more significant limitations. While Dr.

Calores indicated that Eley could “perform sedentary activities,

including frequent sitting or occasional standing/walking such as

classroom situations, desk work, counseling sessions or other

appointments,” id. at 533, he concluded that Eley could only sit

for at most two hours daily, and for only 10-15 minutes without

interruption, and that he could only stand or walk for one hour

each daily, again for only 10-15 minutes without interruption.

Dr. Calores further concluded that Eley could only occasionally

lift 10-20 pounds and carry 10 pounds. In summary, Dr. Calores

opined, Eley was unable to “work part or full time due to chronic

pain [in the] low back [and] legs.” Id.

The ALJ afforded Dr. Fairley’s opinion “greater weight,”

finding it to be ”most consistent with the records showing that

3 the claimant has remained quite active caring for his children”

and “consistent with records from Dr. Brown who noted that the

claimant was doing well in March 2012.” Id. at 17. In contrast,

the ALJ afforded “limited weight” to Dr. Calores’s opinion,

reasoning that his opinion was “internally inconsistent and []

not well supported by his own clinical observations.” Id. The

ALJ explained:

In January 2011, [Dr. Caloras] opined that the claimant was not capable of working even part-time, but in June 2012, he described the claimant as able to lift and carry 10-20 pounds. Moreover, in June 2012, he opined that the claimant could perform sedentary activities including frequent sitting or occasional standing and walking such as is required for deskwork. In this case, Dr. Caloras’s opinion is internally inconsistent and is not well supported by his own clinical observations.

Id. Adopting Dr. Fairley’s opinion, the ALJ concluded that Eley

“has the residual functional capacity to perform sedentary work

as defined in

(a) and 416.967(a) except the

claimant requires the opportunity to alternate sitting and

standing as needed.” Id. at 15. Eley maintains that the ALJ’s

allocation of weight to the competing medical opinions and,

resultantly, this conclusion, was erroneous. The court

disagrees.

4 Treating Source Opinion

In arguing that the ALJ should have afforded more weight to

Dr. Caloras’s opinion, Eley invokes the SSA's rule that more

weight should generally be accorded to treating sources than non-

treating sources.

(c)(1). The opinion of a

treating physician must be given controlling weight if it is well

supported and not inconsistent with other evidence on the record.

§ 404.1527(c)(2). If controlling weight is not afforded the

opinion of a treating source, the ALJ must “give good reasons”

for the weight afforded that source. Id. § 404.1527(c)(2). “The

‘good reasons’ requirement mandates that the ALJ's order ‘must

contain specific reasons for the weight given to the treating

source’s medical opinion, supported by 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 reasons for that weight.’”

Delafontaine v. Astrue,

(quoting Social

Security Ruling (“SSR”) 96-2p, Titles II and XVI: Giving

Controlling Weight to Treating Source Medical Opinions,

, at *5 (S.S.A. 1996)). The ALJ need not, as Eley

suggests, explicitly take account of all the factors articulated

in

(c) in determining what weight to give a

treating physician’s opinion, so long as the court is “able to

5 discern the rationale the ALJ used to reach his determination and

that determination is founded on ‘good reasons’ that are

supported by substantial record evidence.” Figueroa v. Astrue,

(Barbadoro, J.).

In this case, the court concludes that the ALJ could

properly limit the weight given to the treating source opinions

because the record supports his finding that Dr. Caloras’s

opinions were inconsistent and not supported by his clinical

observations.

The ALJ first discounted Dr. Caloras’s opinion on the

grounds that Dr. Caloras “provided inconsistent opinions” because

he opined in January 2011 that Eley “was not capable of working

even part-time,” but in June 2012 described Eley as “able to lift

and carry 10-20 pounds” and capable of “perform[ing] sedentary

activities including frequent sitting or occasional standing and

walking such as is required for deskwork.” Admin. R. at 17.

Eley argues that the ALJ misconstrued Dr. Caloras’s opinion to

find inconsistency where none existed. The court disagrees.

On the “Physician/Clinician Statement of Capabilities” form

that Dr. Caloras filled out on June 27, 2012, Dr. Caloras

assessed Eley as able to “perform sedentary activities including

frequent sitting or occasional standing/walking such as is

required for . . . desk work,” sit for two hours daily, and stand

6 and walk each for one hour daily. Id. at 553. He did not

indicate that any “added breaks or change of position” were

necessary. Id. That same day, Dr. Caloras completed a second

evaluation in which he indicated that Eley could sit no more than

2 hours per day and stand and/or walk for one hour per day.

Here, Dr. Caloras indicated that Eley could do none of these for

more than 10-15 minutes at a time. In both cases, Dr. Caloras

concluded that Eley was not capable of working full- or part-

time. Thus, on the one hand, Dr. Caloras opined that Eley could

perform activities requiring “frequent sitting or occasional

standing/walking” for up to four hours; on the other, he opined

that Eley could not work even part-time. Similarly, Dr. Caloras

indicated on one form that Eley required frequent changes in

position, but did not mention this limitation on the other. This

evidence supports the ALJ’s determination that Dr. Caloras’s

opinions are internally inconsistent.

The court does agree with Eley that there is no inherent

inconsistency between Dr. Caloras’s June 2012 conclusion that

Eley could occasionally lift 10-20 pounds and his January 2011

conclusion that Eley was not capable of working full- or part-

time. The ability to occasionally lift up to 20 pounds and carry

up to 10 pounds alone does not alone render an individual able to

work even part-time. However, because substantial evidence

7 supports the ALJ’s other justifications for discounting Dr.

Caloras’s opinion, this is not dispositive.

The ALJ’s finding that Dr. Caloras’s opinion was “not well

supported by his own clinical observations,” id. at 17, is also

supported by substantial evidence. As described supra, Dr.

Caloras provided his opinions on two forms, both dated June 27,

2012. Both forms are essentially check-box forms in which Dr.

Caloras selected the appropriate box and filled in the

appropriate blanks. Though both forms provided an opportunity

for Dr. Caloras to indicate which observations or analyses

supported his selections, he did not do so except to reference

Eley’s back pain in a general manner. For example, on the

Medical Assessment of Ability to do Work-Related Activities form,

when asked to provide the medical findings in support of Dr.

Caloras’s opinion that Eley can only stand or walk for one hour

in an eight-hour day, Dr. Caloras wrote only, “[increased] lower

back & leg pain with too much walking.” Id. at 528. In response

to the same question seeking support for his opinion that Eley

can only sit for up to two hours in an eight-hour day, Dr.

Caloras wrote, “[increased] pain with excess sitting with

stiffness & pain in lower back.” Id. Similarly, on the

Physician/Clinician Statement of Capabilities form, Dr. Caloras’s

only explanation for his conclusions was that Eley had an

8 “[i]nability to work part or full time due to chronic pain\low

back\legs.” Id. at 533. The ALJ correctly discounted these

opinions because they lacked explanation or even reference to Dr.

Caloras’s own treatment notes, and therefore were not supported

by Dr. Caloras’s clinical observations. See McGrath v. Astrue,

, at 13 n.13;

(d)(3); cf.

Tremblay v. Sec’y of HHS,

(1st Cir. 1982)

(treating physician’s opinion entitled to no more weight than a

consulting physician’s if the disability assessment is

conclusory).

Attempting to show that Dr. Caloras’s previous conclusions

supported his June 2012 opinions, Eley points to a series of six

letters written by Dr. Caloras between January 2011 and October

2011. In these letters, Dr. Caloras asked that Eley be excused

from his child support duties because he was unable to work full-

or part-time. As the Acting Commissioner correctly observes,

these letters simply state that Eley was unable to work because

of back pain. Because, like Dr. Caloras’s June 27, 2012

opinions, they are cursory and lack any analysis, as explained

supra, the ALJ can properly give such an opinion less weight.

Eley also argues that office notes from specialists at

Dartmouth Hitchcock Medical Center, of which Dr. Caloras received

copies, also support Dr. Caloras’s opinions. But Dr. Caloras

9 does not reference these office notes in his opinions. Nor does

he explain how (or even that) he relied on them in forming his

opinions. Without analysis by the opining physician, it would be

an error for the ALJ to analyze these records himself, for except

in the rare case “where the medical evidence shows relatively

little physical impairment,” Manso-Pizarro v. Sec’y of HHS,

(1st Cir. 1996)--which is not this case--an ALJ

“cannot assess the claimant’s RFC himself, ‘since bare medical

findings are unintelligible to a laypeson in terms of RFC.’”

Levesque v. Colvin,

(quoting Gordils v.

Sec’y of HHS,

(1st Cir. 1990)).

Since it is the province of the ALJ to weigh the evidence

and there is substantial support for the ALJ’s decision to

discount Dr. Caloras’s opinion, see Tremblay,

, the

court finds no error.

Consulting Source Opinion

Having determined that the ALJ could reasonably discount the

RFC assessments of Dr. Caloras, the court must now consider

whether he was justified in relying more heavily on the opinion

of Dr. Fairley, a non-treating physician. The ALJ need not grant

the treating physician’s opinion greater weight than a consulting

physician’s when, as here, the treating physician’s assessment is

conclusory. Tremblay,

. “The ALJ's decision to

10 adopt an assessment by a non-treating physician is further

supported if that assessment references specific medical findings

indicating that the claimant's file was reviewed with care.”

Moss v. Astrue,

(citing Berrios Lopez v.

Sec’y of HHS,

(1st Cir. 1991)).

The ALJ explained that he afforded “greater weight” to the

opinion of the state agency reviewing physician, Dr. Fairley, for

two reasons: (1) Dr. Fairley’s opinion was “most consistent with

the records showing that the claimant has remained quite active

caring for his children,” and (2) his opinion was consistent with

the records of Eley’s rheumatologist, Dr. Lin A. Brown. Admin.

R. at 17. Eley challenges this reasoning as “inadequate.” Cl.

Br. at 11.

First, Eley faults the ALJ for what he perceives as an over-

reliance on Eley’s daily activities caring for his children.

Eley contends that, because he only obtained custody of his

children in June 2012 and had difficulty caring for them himself,

those activities do not support an RFC of sedentary work.1 While

the ability to perform basic household tasks, taken alone, “does

1 Specifically, Eley testified that, during the summer, his parents helped him care for his children because, “with my back pain and what not I’m not able to keep up with the children like they want me to.” Admin. R. at 38. The ALJ questioned the credibility of Eley’s testimony that his pain increased with activity, however. See id. at 16. Eley does not dispute that conclusion.

11 not equate with an ability to perform substantial gainful

activity,” Delafontaine,

, evidence in the

record reflects that Eley was able to do more than merely give

basic care to his children. In addition to preparing meals for

the children, getting them ready for school and onto the school

bus, helping them with their homework, and doing household chores

such as vacuuming and dishes, evidence in the record also shows

that Eley was able to “play video games, use a computer, . . .

drive, play games online with others and go fishing.” Admin. R.

at 14.

Eley also argues that the ALJ misconstrued Dr. Brown’s

March 22, 2012 observation that “Mr. Eley has done well with

Humira,” a drug prescribed for his joint pain, to mean that Eley

was “doing well” overall in March 2012. Cl. Br. at 12. To the

contrary, the ALJ’s conclusion does not appear to have been based

on a single sentence concerning Humira, but on Dr. Brown’s report

as a whole. For example, after that same visit, Dr. Brown noted

that Humira “made a significant improvement in [Eley’s] back

pain” and that Eley “had about a 60% improvement from baseline”

and reported that he “only ached at the end of the week.” Admin.

R. at 514. Eley’s treating physician, Dr. Caloras, noted similar

improvements, observing a few months later--in July 2012--that

the Humira “helped [Eley’s] whole body and joint pain.”

at

12 547. The ALJ did not clearly err by interpreting Dr. Brown’s

statements to mean that Eley was “doing well” in March 2012, nor

in finding Dr. Fairley’s opinion consistent with those

statements. Accordingly, the court concludes that the ALJ did

not err in choosing to assign greater weight to Dr. Fairley’s

decision.2

Conclusion

As this court has observed, an ALJ can rely “on the

assessments of non-testifying, non-examining physicians” in

adjudicating a claimant’s RFC, and conflicts between those

assessments and other medical testimony “are for the ALJ to

resolve.” Morin v. Astrue,

(citing Tremblay,

). Furthermore, “[t]he ALJ decision to resolve

that conflict against the claimant should be affirmed if “‘that

conclusion has substantial support in the record.’”

(quoting

Tremblay,

). Because, for the reasons just

2 Finally, Eley argues that the ALJ erred when he posed a hypothetical question to the vocational expert that was “based upon the functional limitations found by the state agency.” Cl. Br. at 13. Having concluded that the ALJ’s RFC determination was proper and supported by substantial evidence in the record, the court finds no error.

13 explained, that is the case here, Eley’s motion to reverse the

SSA’s decision3 is DENIED, and the Commissioner’s motion to

affirm it4 is GRANTED. See

(g). The clerk shall

enter judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: April 21, 2015

cc: Bennett B. Mortell, Esq. Robert J. Rabuck, AUSA

3 Document no. 7. 4 Document no. 9.

14