UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Holly Couture (f/k/a Gagnon)

v. Civil No. 14-cv-00069-JL Opinion No.

Carolyn Colvin, Acting Commissioner of Social Security

ORDER ON APPEAL

Holly Couture has appealed the Social Security

Administration’s (“SSA”) denial of her application for a period

of disability and disability insurance benefits. An

administrative law judge (“ALJ”) ruled that, despite Couture’s

severe impairments (fibromyalgia and asthma), she retains the

residual functional capacity (“RFC”) to perform jobs that exist

in significant numbers in the national economy, and, as a result,

is not disabled. See

(a). The Appeals

Council later denied Couture’s request for review, see

§ 404.968(a), with the result that the ALJ’s decision became the

final decision on Couture’s application, see id. § 404.981.

Couture then appealed the decision to this court, which has

jurisdiction under

(g) (Social Security).

Couture has filed a motion to reverse the decision. See

L.R. 9.1(b)(1). Couture argues that the ALJ erred at step four

of the process by improperly evaluating the medical opinion

evidence bearing on his RFC determination in a manner that failed to properly account for evidence of Couture’s fibromyalgia and,

as a result, erroneously found in step five that Couture can

perform jobs that exist in the national economy. The Acting

Commissioner of the Social Security Administration has cross-

moved for an order affirming the ALJ’s decision, see L.R. 9.1(d),

defending the ALJ’s RFC determination as supported by substantial

evidence. As explained fully below, the court agrees with the

Acting Commissioner, and therefore grants her motion to affirm

(and denies Couture’s motion to reverse) the decision.

I. Applicable legal standard

The court limits its review of a final decision of the SSA

“to determining whether the ALJ used the proper legal standards

and found facts upon the proper quantum of evidence.” Ward v.

Comm’r of Soc. Sec.,

(1st Cir. 2000). The

court will uphold the ALJ’s decision if it is supported by “such

evidence as a reasonable mind might accept as adequate to support

a conclusion.” Richardson v. Perales,

(1971)

(quotations omitted). Though the evidence in the record may

support multiple conclusions, the court will still uphold the

ALJ’s findings “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 Heath & Human Servs.,

(1st Cir. 1991).

2 II. Background

In assessing Couture’s request for disability benefits, the

ALJ engaged in the requisite five-step process. See

. He first concluded that Couture had not engaged in

substantial gainful activity since the alleged onset of her

disability on March 15, 2011. At the second step, he determined

that Couture suffers from two severe impairments: fibromyalgia1

and asthma. The ALJ then found that Couture’s impairments did

not meet or “medically equal” the severity of one of the

impairments listed in the Social Security regulations. See

(d), 416.925, and 416.926. At the fourth step,

the ALJ concluded that Couture retained the RFC to “perform light

work as defined in

(b) except she can

occasionally climb, stoop, crouch, crawl and kneel,” and “[s]he

must avoid concentrated exposure to respiratory irritants, such

as fumes, dusts and gasses.” Admin. R. at 17. After finding

that Couture could not perform her past relevant work as a baker,

1 “Fibromyalgia is defined as ‘[a] syndrome of chronic pain of musculoskeletal origin but uncertain cause.’ Further, ‘[t]he musculoskeletal and neurological examinations are normal in fibromyalgia patients, and there are no laboratory abnormalities.’ The American College of Rheumatology nonetheless has established diagnostic criteria that include ‘pain on both sides of the body, both above and below the waist, [and] point tenderness in at least 11 of 18 specified sites.’” Johnson v. Astrue,

(1st Cir. 2009) (quoting Stedman's Medical Dictionary, at 671 (27th ed. 2000) and Harrison's Principles of Internal Medicine, at 2056 (16th ed. 2005)).

3 day care worker, and child monitor, see

, the

ALJ continued to step five, at which the SSA bears the burden of

showing that a claimant can perform other jobs that exist in

significant numbers in the economy. Freeman v. Barnhart,

(1st Cir. 2001). Relying on the testimony of a

vocational expert, the ALJ concluded that Couture could perform

such jobs as companion, telemarketer, appointment clerk, and

final assembler. Therefore, the ALJ found, Couture was not

disabled within the meaning of the Social Security Act.

III. Analysis

At issue in this appeal is whether the ALJ’s RFC assessment

is supported by substantial evidence in the record. In

evaluating Couture’s RFC as related to her fibromyalgia2, the ALJ

had three medical opinions at his disposal: those of Dr. Nicole

Orzechowski, Couture’s treating rheumatologist; Dr. Matthew

Masewic, a consultative examiner; and Dr. John MacEachran, a

state agency medical consultant. Couture maintains that the ALJ

erred by affording “less weight” to the opinion of Dr.

Orzechowski and only “some weight” to the opinion of Dr.

MacEachran. Couture then argues that the ALJ ultimately and

impermissibly relied on his own lay interpretation of the medical

2 Couture does not dispute the ALJ’s RFC analysis based on her asthma.

4 evidence in determining her RFC after affording “great weight” to

the opinion of Dr. Masewic, because that opinion did not include

a function-by-function capacity analysis.3 The court disagrees.

A. Medical opinion evidence

1. Dr. Orzechowski

The argument that undergirds Couture’s appeal is her

contention that the ALJ erred by affording “limited weight”--

instead of controlling or greater weight--to the opinion of

Couture’s treating physician, Dr. Orzechowski. Couture

predictably 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 by medically acceptable diagnostic techniques and not

inconsistent with other evidence on the record.

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

3 In her reply memorandum, Couture alleges that the ALJ further erred in evaluating her RFC by failing to take into consideration or address: (1) certain elements of the opinion of Dr. William Dinan, who evaluated Couture’s mental health; (2) that Couture’s exercise was part of her prescribed treatment; (3) an agency Field Office statement that Couture walked slowly; (4) a physical therapy evaluation; (5) the ALJ’s own findings about Couture’s hypomobility; (6) that Couture’s care for her parents was accommodated. But Couture did not develop--or even raise-- these arguments in her opening memorandum. Thus, they are deemed waived. See, e.g., Hypertherm, Inc. v. Amer. Torch Top Co.,

, at 6 n.5.

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

for the weight afforded that source.

§ 404.1527(c)(2).

Where, as here, an ALJ relies on inconsistencies between a

source’s opinion and the record to discount that opinion, “the

claimed inconsistencies must be adequately supported by the

record as well.” Beck v. Astrue,

. Here, the

ALJ’s stated reasons for discounting Dr. Orzechowski’s opinion

find substantial support in the record.

Dr. Orzechowski opined only that Couture “would be best

served by working part time,” that is, “for four hours per shift,

preferably during the day,” and that she “should be allowed to

sit periodically, perhaps 15 minutes during a 4 hour shift.”

Admin. R. at 355. In discounting Dr. Orzechowski’s opinion, the

ALJ provided a thorough review of the record evidence provided by

Couture and her mother, as well as the other medical opinions in

evidence.

The ALJ relied primarily on Couture’s level of activity

during her alleged period of disability, which conflicted with

Dr. Orzechowski’s conclusion that Couture could only work four

hours out of the day. Yet Couture herself reported that she had

no difficulty sitting, standing, or walking; that she attended

the gym regularly, and walked, hiked, and danced for exercise;

that she performed caretaking services for her parents for up to

seven hours a day; and that she performed all of her own

6 household chores, including cooking meals. As the ALJ further

observed, Couture’s mother validated the reports of Couture’s

activity levels, explaining that Couture ran errands, cooked, and

cleaned for her mother, helped her mother bathe, and drove her to

medical appointments.

Next, the ALJ relied on inconsistencies between Dr.

Orzechowski’s opinion and “the somewhat benign medical signs and

symptoms reflected in her own treatment notes.” Admin. R. at 19.

For example, Dr. Orzechowski opined on August 9, 2011 that

Couture could lift no more than 20 pounds; but in her opinion,

rendered only four months later, she opined that Couture was

limited to lifting 10 pounds. An ALJ may, as he did here,

permissibly discount even a treating medical provider’s opinion

when he finds that it is internally inconsistent and conclusory.

Eley v. Colvin,

.

As further support for discounting Dr. Orzechowski’s

opinion, the ALJ observed that it conflicted with the two other

medical source statements on the record. Both Dr. Masewic and

Dr. MacEachran failed to find Couture’s fibromyalgia disabling.

Dr. Masewic, who examined Couture, opined that her fibromyalgia

“would have a mild effect on functional capacity.” Admin. R. at

351-52. Dr. MacEachran, the state agency medical consultant who

reviewed Couture’s record, opined that Couture could stand and/or

walk for a total of 4 hours and could sit for a total of “about 6

7 hours in an 8-hour workday,” with certain limited postural and

exertional limitations. Admin. R. at 78. The ALJ reasonably

concluded that these assessments contradict Dr. Orzechowski’s

determination that Couture “would be best served” by working only

part-time.

Finally, the ALJ noted that Dr. Orzechowski’s opinion was

inconsistent with Couture’s work history. Specifically, the ALJ

concluded that Couture left her previous job to care for her

ailing mother, not due to the onset of her disability, and that

Couture began looking for work when her mother’s condition began

to improve. These conclusions are supported by Couture’s reports

to Dr. Orzechowski that she was seeking “an office job,” Admin.

R. at 295, and statements made by Couture at the hearing and to

Dr. Pralhad Bide, who evaluated her in connection with her

asthma.

In light of the ALJ’s thorough analysis and lengthy

exposition of his reasoning, the court cannot conclude that he

erred by discounting the medical opinion of Couture’s treating

physician, or by failing to provide good reasons for doing so.

To the contrary, the ALJ’s decision to give Dr. Orzechowski’s

opinion “little weight” is well-supported by substantial evidence

in the record, and the ALJ adequately explained his reasoning.

Nor did the ALJ run afoul of Johnson v. Astrue,

(1st Cir. 2010), wherein the Court of Appeals for the First

8 Circuit explained that “once the ALJ accepted the diagnosis of

fibromyalgia, [he] also ‘had no choice but to conclude that the

claimant suffer[ed] from the symptoms usually associated with

[such condition], unless there was substantial evidence in the

record to support a finding that claimant did not endure a

particular symptom or symptoms.’” Johnson,

(quoting Rose v. Shalala,

(1st Cir. 1994)). In

Johnson, the ALJ rejected a treating physician’s opinion because,

aside from tenderness at the trigger points associated with

fibromyalgia, there was no “objective” medical evidence to

support an assessment of disability. See Johnson,

. The Court of Appeals found that this decision was not

supported by substantial evidence and explained that, “since

trigger points are the only ‘objective’ signs of fibromyalgia,”

the ALJ errs when he “effectively . . . requir[es] objective

evidence beyond the clinical findings necessary for a diagnosis

of fibromyalgia under established medical guidelines.” Johnson,

(quoting Green–Younger v. Barnhart,

(2d Cir. 2003)).

Couture contends that the ALJ made substantially the same

mistake here. But this case does not so neatly resemble Johnson.

The ALJ did not discount Dr. Orzechowski’s opinion due to a lack

of “objective” medical evidence. In fact, the ALJ accepted that

Couture suffers from the symptoms usually associated with

9 fibromyalgia. Having done so, the ALJ then discounted Dr.

Orzechowski’s opinion as to the extent of Couture’s suffering

because it was inconsistent with other evidence on the record, as

well as her own earlier opinion. The ALJ is entitled--and,

indeed, required--to consider the entire record when weighing the

opinion evidence.4 See generally, SSR No. 96-2p,

,

at *1; Lopes v. Barnhart,

(D. Mass.

2005);

. And, as discussed supra, the

inconsistencies upon which the ALJ relied in discounting Dr.

Orzechowski’s opinion are more than adequately supported by

substantial evidence in the record.

2. Dr. MacEachran

Couture also contends that the ALJ erred by discounting the

opinion of the state agency consultant, Dr. MacEachran, who

opined that Couture could stand and/or walk for a total of four

hours, could sit for a total of “about 6 hours in an 8-hour

workday,” could occasionally crouch and frequently climb, had no

limitations on balancing, stooping, kneeling, crawling, pushing,

or pulling, and “demonstrate[d] the maximum sustained work

4 The ALJ need not, as Couture 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, as it is here, “to 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,

.

10 capability” for sedentary work. Admin. R. at 78, 80. The ALJ

gave “only some weight” to the opinion of Dr. MacEachran “because

he did not examine the claimant.” Admin R. at 19.

The ALJ is not bound by the opinions of state agency

consultants, but must consider them and explain the weight given

to those opinions. SSR 96-6p, Titles II and XVI: Consideration

of Administrative Findings of Fact by State Agency Medical and

Psychological Consultants and Other Program Physicians,

, at *1 (S.S.A. 1996)). As Couture points out, a state

agency consultant’s opinion can be given weight “only insofar as

[it is] supported by evidence in the case record, considering

such factors as the supportability of the opinion in the

evidence” and “the consistency of the opinion with the record as

a whole, including other medical opinions . . . .” SSR 96-6p,

, at *2.

Here, Couture argues that Dr. MacEachran’s opinion “that

Plaintiff is precluded from performing light work because she can

stand/walk for only 4 hours per workday,” Plaintiff’s Memorandum

at 10, should be afforded greater weight because it is consistent

with the opinion of Dr. Orzechowski that Couture was limited to

working four hours per day. The court does not find this

argument persuasive. Nowhere did Dr. MacEachran opine that

Couture could only work part-time. Instead, he opined that she

could stand or walk for up to four hours per day, and sit for up

11 to six hours per day, which suggests the ability to perform full-

time work.

Nor did the ALJ err by finding that Couture was capable of

“light work” when MacEachran recommended her for sedentary work,

concluding that she could stand or walk for only four hours per

day. A claimant need not be able to stand or walk for a full

eight hours for the ALJ to find that she can perform light work

with some restrictions. See Dubois v. Astrue,

, 13-

14 (medical opinion that claimant could stand/walk only three

hours a day supported finding of ability to do light work with

some restrictions); Putnam v. Astrue,

(“[C]laimant's inability to perform the full range of light work

does not compel the conclusion that he is only capable of less

physically demanding (i.e., sedentary) work, nor does it compel

the conclusion that he is disabled.”). A job may also fall into

the category of light work “when it involves sitting most of the

time.”5 SSR 83–10, Titles II and XVI: Determining Capability to

Do Other Work—The Medical–Vocational Rules of Appendix 2,

, *5 (S.S.A. 1983).

5 Even had the ALJ relied more heavily on Dr. MacEachran’s opinion and found Couture capable only of sedentary work, the outcome here would remain the same. An RFC allowing for sedentary work does not equate to disability. See Gordils v. Sec'y of Health & Human Servs.,

(1st Cir. 1990). And, as the Acting Commissioner correctly observed, three of the jobs identified by the vocational expert as suitable for Couture require only the capability for sedentary work.

12 3. Lay Opinion

Finally, Couture argues that the ALJ erred by substituting

his own lay judgment for that of the medical experts. Having

discounted the opinions of Drs. Orzechowski and MacEachran, the

ALJ relied most heavily on the opinion of Dr. Masewic,6 who

concluded that Couture’s fibromyalgia “would have a mild effect

on [her] functional capacity,” Admin. R. at 352, but did not

provide a function-by-function analysis. Couture does not

directly contest the weight that the ALJ gave to Dr. Masewic’s

opinion. Rather, she contends that, because the ALJ relied most

heavily on an opinion lacking a function-by-function analysis,

the ALJ must have substituted his own lay interpretation of the

medical evidence for that of the medical experts. The court

disagrees.

“Although determination of a claimant's RFC is an

administrative decision that is the responsibility of the

Commissioner, an ALJ, as a lay person, cannot interpret a

claimant's medical records to determine his RFC. An ALJ must

6 As grounds for affording Dr. Masewic’s opinion “great weight,” the ALJ observed that Dr. Masewic was “an examining medical source who is familiar with Social Security Administration program regulations,” and that his opinion was largely in accord with that of Dr. MacEachran, Couture’s level of activities as reported by both Couture and her mother, the circumstances of Couture’s departure from her previous job, and the fact that she looked for work during the period of her alleged disability. Admin R. at 19.

13 rely to some degree on RFC evaluations from a physician or

another expert.” Delafontaine v. Astrue,

.

But, “although an ALJ cannot ab initio interpret medical records

to determine a claimant’s RFC, he can ‘render[] common-sense

judgments about functional capacity based on medical findings.’”

at 26 (quoting Gordils,

(1st Cir. 1990)); see

also Graham v. Barnhart, No. 02–243,

, at *7

(D.N.H. May 9, 2006) (Barbadoro, J.). Thus, observations from

medical sources can still inform the ALJ’s RFC determination even

where the medical source does not explicitly address the

claimant’s functional limitation “as long as the [ALJ] does not

overstep the bounds of a lay person’s competence and render a

medical judgment.” Gordils,

.

Here, the ALJ properly grounded his RFC assessment not in

raw medical data, but in Dr. Masewic’s medical findings. Dr.

Masewic met with Couture, documented her subjective complaints,

performed and recorded the results of a physical examination,

determined that Couture suffered from fibromyalgia, assessed the

effect of that diagnosis on her functional capacity, and

concluded that the effect would be “mild.” He did not observe

any specific limitations resulting from Couture’s fibromyalgia.

The ALJ then interpreted Dr. Masewic’s finding--not Couture’s

medical records or raw medical data--along with the opinions of

14 other experts7 and other record evidence discussed supra in

crafting Couture’s RFC.

B. Step Five Analysis

Finally, Couture argues that the ALJ erred when he posed a

hypothetical question to the vocational expert that was based

upon the allegedly erroneous RFC. Having concluded that the

ALJ’s RFC determination was proper and supported by substantial

evidence in the record, the court finds no error.8

IV. Conclusion

For the reasons just explained, the ALJ’s conclusion that

Couture is not disabled is supported by substantial evidence in

7 For example, while the ALJ only gave Dr. MacEachran’s opinion “some weight” because he did not examine Couture, it is clear that the ALJ relied at least to some degree on Dr. MacEachran’s opinion. The exertional limitations that Dr. MacEachran assigned to Couture--the ability to occasionally lift 20 pounds and frequently lift 10--is consistent with the exertional limits of light work as defined in § 404.1567(b). The ALJ “is entitled to piece together the relevant medical facts from the findings of multiple physicians.” Delafontaine v. Astrue,

(internal quotations omitted). 8 In a single sentence in the introduction of her argument, Couture claims that the vocational witness’s testimony that Couture can perform semiskilled occupations is unsupported by substantial evidence because there was no evidence that Couture has the transferable skills necessary for those occupations. Couture has made no effort to explain this position, so the court considers this argument waived. See United States v. Zannino,

(1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”).

15 the record. Couture’s motion to reverse the SSA’s decision9 is

DENIED and the Acting Commissioner’s motion to affirm10 is

GRANTED. The clerk shall enter judgment accordingly and close

the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: June 25, 2015

cc: Tamara N. Gallagher, Esq. Robert J. Rabuck, Esq.

9 Document no. 9. 10 Document no. 11.

16