UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Nancy Hersey

v. Civil No. 16-cv-068-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Nancy Ann Hersey 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 at the SSA (“ALJ”) ruled that, despite

several severe impairments, including degenerative disc disease,

migraines, obesity, and a tobacco use disorder, Hersey retains

the residual functional capacity (“RFC”) to perform her past

relevant work as a sales agent, and thus is not disabled. See

(a), 416.905(a). The Appeals Council later

denied Hersey’s request for review, see

§ 404.967, with the

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

Hersey’s application, see id. § 404.981. Hersey then appealed

the decision to this court, which has jurisdiction under

(g) (Social Security).

Hersey has moved to reverse the decision, see L.R. 9.1(b),

contending that the ALJ erred by: (1) incorrectly assessing the credibility of Hersey’s subjective complaints, (2) completely

discounting the opinion of Hersey’s treating nurse practitioner

as to Hersey’s RFC, and (3) failing to support her RFC finding

with substantial evidence in the record. The Acting

Commissioner of the SSA has cross-moved for an order affirming

the ALJ’s decision. See L.R. 9.1(e). After careful

consideration, the court grants the Acting Commissioner’s motion

to affirm (and denies Hersey’s motion to reverse) the ALJ’s

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 Health & Human

Servs.,

(1st Cir. 1991).

2 II. Background1

The ALJ invoked the requisite five-step process in

assessing Hersey’s request for disability and disability

insurance benefits. See

. First, she

concluded that Hersey had not engaged in substantial gainful

activity during the period after the alleged onset of her

disability on August 31, 2012, and that Hersey will remain

insured through December 1, 2016. After analyzing the severity

of Hersey’s impairments, the ALJ concluded that Hersey suffered

from four severe impairments: degenerative disc disease,

migraines, obesity, and a tobacco use disorder.1

At the third step, the ALJ found that Hersey’s severe

musculoskeletal impairment did not meet or “medically equal” the

severity of one of the impairments listed in the Social Security

regulations, even paired with the potential effects of obesity.

See

(d), 416.925, and 416.926. After

reviewing the medical evidence of record, Hersey’s own

statements, the examination report of an impartial medical

consultant, the opinion of Hersey’s treating registered nurse,

1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts (document no. 11) is incorporated by reference. See L.R. 9.1(d). 1 Admin. R. at 161.

3 and the findings of a physician employed by the State Disability

Determination Services to review Hersey’s medical records, the

ALJ concluded that Hersey retained the RFC to perform light

work, albeit with several physical limitations.2 Finding that,

even limited in this manner, Hersey was able to perform her

past, relevant work as a sales agent, see

,

the ALJ concluded her analysis and found that Hersey was not

disabled within the meaning of the Social Security Act.

III. Analysis

Hersey challenges three aspects of the ALJ’s analysis.

First, she contends that the ALJ failed to follow the applicable

law when she assessed the credibility of Hersey’s subjective

complaints. Second, she argues that the ALJ erred by

discounting the opinion of Hersey’s treating nurse practitioner

as to Hersey’s RFC. Finally, Hersey argues that, in light of

these two errors, the ALJ’s RFC determination was not supported

by substantial evidence. The court addresses each argument in

turn and concludes that the ALJ did not err in any of these

analyses.

2 Admin. R. at 164-66.

4 A. Credibility determination

Hersey first argues that the ALJ erred in finding her

subjective complaints less than credible. The ALJ is

responsible for “evaluat[ing] the credibility of a claimant’s

testimony about [his] symptoms and their limiting effect in

light of all the other evidence of record, rather than to simply

accept the testimony as true.” Scanlon v. Astrue,

,

15 n.4. This court generally defers to that determination when

the ALJ supports it with specific evidence in the case record.

Simmons v. Astrue,

(D.N.H. 2010)

(citing Frustaglia v. Sec’y of Health & Human Servs.,

(1st Cir. 1987)). Though the record evidence may allow

for more than one conclusion, the ALJ’s credibility

determination will be upheld so long as “a reasonable mind,

reviewing the evidence in the record as a whole, could accept it

as adequate to support [the ALJ’s] conclusion.” Irlanda Ortiz,

(quotation marks omitted).

As Hersey points out, the ALJ evaluates subjective

complaints according to SSR 96-7p, Titles II and XVI: Evaluation

of Symptoms in Disability Claims: Assessing the Credibility of

an Individual’s Statements,

(S.S.A. 1996), which

outlines a specific staged inquiry that consists of the following questions, in the following order: (1) does the claimant have an underlying impairment that could produce the symptoms he or she claims?; (2) if so, are the claimant’s statements about his or

5 her symptoms substantiated by objective medical evidence?; and (3) if not, are the claimant’s statements about those symptoms credible?

Comeau v. Colvin,

(internal quotations

omitted); see also

. Adhering to that

process, the ALJ concluded that Hersey’s impairments satisfied

the first criterion, in that her “medically determinable

impairments could reasonably be expected to cause the alleged

symptoms,” that is, back pain and headaches.3 At the second and

third steps, however, she concluded that Hersey’s “statements

concerning the intensity, persistence and limiting effects of

these symptoms are not entirely credible . . . .”4

The ALJ grounded this conclusion with citations to specific

evidence in Hersey’s medical record that undermined -- or even

countered -- her allegations as to the severity, intensity, and

limiting effect of her back pain and headaches. Hersey

testified that her back pain, resulting from a motor vehicle

accident in 2012, prevented her from getting out of bed,

bending, or sitting, when particularly severe. As the ALJ

observed, however, the motor vehicle accident occurred in

January 2012, whereas Hersey claims that she became disabled

3 Admin. R. at 165. 4

6 some eight months later, in August 2012.5 The ALJ also cited the

absence of diagnostic evidence of a severe deformity and the

fact that Hersey’s physical examination was within normal limits

and that both x-ray and MRI examination of Hersey’s spine

“revealed only mild degenerative changes.”6 She also noted that

Hersey was “consistently noted to be in no acute distress when

presenting for treatment” and had “no physical deficits upon

physical examination,” which further undermined Hersey’s

credibility.7 The ALJ similarly found Hersey’s reports of the

severity of her headaches less than credible in light of reports

in Hersey’s medical records “indicat[ing] that this impairment

was stabilized with medication prior to her alleged onset date

of disability and continuing.”8 The ALJ also observed that the

reports of the two medical experts in the case supported her

conclusion.9

Hersey challenges three aspects of the ALJ’s analysis.10

First, she takes aim at the medical records that the ALJ cited

5

6

7 Id. at 166. 8 Id. at 165. 9 Id. at 166. 10In a few brief sentences, Hersey also charges the ALJ with error through failure to address her work history or her husband’s report of her activities. See Plaintiff’s Mem. (doc.

7 in support of her conclusion that Hersey’s complaints were

inconsistent with the objective medical evidence. Hersey offers

in counterpoint a few instances in which she complained of

headaches and an MRI of her lumbar spine. Although this

evidence might lead to a different conclusion than the one drawn

by the ALJ, substantial evidence in the record supports the

ALJ’s conclusion. Accordingly, this court will not disturb it.

See Irlanda Ortiz,

(quotation marks omitted).

Second, Hersey contends that the ALJ’s “analysis of the

plaintiff’s daily activities was not accurate.”11 The ALJ took

account of Hersey’s reports of her daily activities and her

efforts to treat her headaches and back pain.12 She then

concluded that Hersey’s “testimony that her husband performs all

household chores” was undermined by Hersey’s account of her

no. 8-1) at 7-8, 12. By failing to develop these arguments, Hersey waives them. See United States v. Zannino,

(1st Cir. 1990) (insufficiently developed arguments are deemed waived).Error! Main Document Only. Even had she not waived the latter argument, the ALJ is not obligated to explain the weight given to third-party observations, and thus did not err by failing to do so. Cf. Titles II and XVI: Considering Opinions and Other Evidence From Sources Who Are Not “Acceptable Medical Sources” in Disability Claims, SSR 06–03p,

, at *4 (SSA 2006) (weight given to “opinions from medical sources who are not ‘acceptable medical sources’ and from ‘non-medical sources’ who have seen the claimant in their professional capacity” generally should be explained). 11 Plaintiff’s Mem. (doc. no. 8-1) at 8-10. 12 Admin. R. at 164-65.

8 reason for returning to New Hampshire: to take care of her

husband, who had become sick.13 The court cannot conclude from

this that the ALJ failed to consider Hersey’s activities of

daily living and, though this analysis may be thin, it does not

amount to “inaccurate.”

Finally, Hersey challenges the ALJ’s consideration of

Hersey’s regimen of treatment. This challenge begins with the

false premise that the ALJ “noted the plaintiff only sought

infrequent treatment for her pain flareups.”14 The ALJ noted no

such thing; rather, she noted that Hersey herself “reported that

she only has neck and back pain ‘a few times a year,’” which

would be consistent with the fact that the treatment records

“report[] only infrequent flareups of back pain.”15 Accordingly,

the ALJ did not err in considering Hersey’s regimen of

treatment.

B. Medical opinion

Hersey next argues that the ALJ erred in her treatement of

the Residual Functional Capacity Questionnaire submitted by

Hersey’s nurse practitioner, Ms. Fischler. Specifically, Hersey

charges the ALJ with “not properly weighing the opinion of the

13 Id. at 165. 14 Plaintiff’s Mem. (doc. no. 8-1) at 11. 15 Admin. R. at 166.

9 plaintiff’s nurse practitioner . . . in accordance with the

factors set forth in SSR 06-03p.”16

Registered nurses, though medical sources, are not

considered “acceptable medical sources” but are, instead,

considered to be “other sources” available to demonstrate the

severity of an applicant’s impairments and how they affect the

applicant’s ability to work.

(d). The ALJ

must “consider all relevant evidence in the case record,”

including opinions from “medical sources who are not ‘acceptable

medical sources.’” SSR 06–03p,

, at *4. The ALJ

may consider “the factors in

(d) and

416.927(d)” when weighing a nurse practitioner’s opinion, though

“[n]ot every factor . . . will apply in every case.”

And

having considered a nurse practitioner’s opinion, the ALJ

“generally should explain the weight given to” that opinion.

Id. at *5; see also, e.g., Corson v. Soc. Sec'y Admin., Comm'r,

, 24–25.

The ALJ followed the requisite procedures here. She

considered Ms. Fischler’s opinion and explained that she

discounted it as “not entitled to any probative value,” because

it was “inconsistent with the claimant’s treatment records,” as

discussed in her evaluation of Hersey’s credibility,” as well as

16 Plaintiff’s Mem. (doc. no. 8-1) at 13.

10 with Hersey’s “prescription for narcotic pain medication, which

are provided in small doses and only for flares of pain.”17 Even

were the ALJ obliged to address every factor discussed in SSR

06–03p -- which she was not -- Hersey has not identified any

factor that the ALJ failed to consider.

C. RFC determination

As her final argument, Hersey contends that the two alleged

errors discussed supra caused the ALJ to err in crafting

Hersey’s RFC.18 Because the court finds that the ALJ did not err

in assessing Hersey’s credibility or Ms. Fischler’s opinion, it

likewise concludes that the ALJ did not err in crafting Hersey’s

RFC.

IV. Conclusion

For the reasons discussed herein, the ALJ’s conclusion that

Hersey is not disabled is supported by substantial evidence in

the record. Hersey’s motion to reverse the SSA’s decision19 is

DENIED and the Acting Commissioner’s motion to affirm20 is

17 Admin. R. at 166. 18 Plaintiff’s Mem. (doc. no. 8-1) at 18-19. 19 Document no. 8. 20 Document no. 9.

11 GRANTED. The clerk shall enter judgment accordingly and close

the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: November 2, 2016

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

12