UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lourdes S. Conde

v. Civil No. 15-cv-246-JD Opinion NO.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Lourdes S. Conde seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of

the Social Security Administration, denying her application for

disability benefits and supplemental security income. In

support, Conde argues that the Administrative Law Judge (“ALJ”)

made factual and legal errors in finding that she was not

disabled. The Acting Commissioner moves to affirm the decision.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s factual findings as long as they are supported by substantial

evidence. § 405(g). “Substantial evidence is more than a

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Astralis

Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev.,

(1st Cir. 2010).

Background

Conde was forty-three years old in August of 2010 when she

alleges her disability began. She completed the seventh grade

in school. She previously worked as an assembler in an

industrial laundry company.

The medical records summarized in the parties’ factual

statement begin in July of 2011 when Conde discussed her newly

diagnosed diabetes with her treating physician, Dr. Karen

Shannon. Thereafter, she had two visits to emergency rooms, in

December of 2011 and May of 2012 for cardiology related

symptoms. She also continued treatment for diabetes.

At the end of April of 2012, Conde went to Elliott Hospital

because she had taken ten tablets of sleeping medication. She

said she was thinking of suicide. She was discharged three days

later with a Global Assessment of Functioning Score of 50. She

then received mental health treatment at The Mental Health

Center of Greater Manchester. In June she started a new

2 medication but did not have any improvement in her anxiety or

poor sleep. By the end of June, she was functioning well.

Conde was assessed at The Mental Health Center on July 16,

2012. She reported agitation, angry outbursts, anxiety, poor

concentration, depressed mood, low energy, poor appetite, and

suicidal ideation and behavior. The assessment found, however,

that her general appearance, interview behavior, thought, motor

activity, speech, mood, affect, and intellect were all normal.

At subsequent treatment sessions, Lourdes continued to report

agitation, angry outbursts, depressed mood, decreased appetite,

poor concentration, insomnia, financial stress, and high stress

with her son.

Dr. E. Hurst completed a form for the New Hampshire

Department of Health and Human Services in July of 2012.1 Dr.

Hurst recounted Conde’s report of diabetes, depression, angry

outbursts, and an inability to deal with stress. During the

interview, Dr. Hurst found that Conde was cooperative and

pleasant, was not in acute distress, and had non-pressured

speech but appeared to be somewhat depressed with a blunt and

congruent affect. Conde was alert, oriented, and attentive.

Dr. Hurst concluded that Conde had a moderate degree of

functional loss in daily activities and social function,

1 The joint factual statement erroneously dates the form as having been completed in July of 2010.

3 frequent functional loss in task performance, and repeated

functional loss in stress reaction. With treatment, Dr. Hurst

thought, Conde would be moderately limited and would not be able

to work for four years.

Psychologist Jessica Stern conducted a mental health

evaluation of Conde in September of 2012. Conde reported many

problems with her son and symptoms that included constant

crying, anxiety, insomnia, poor appetite, fatigue, and panic

attack feelings. Conde also reported that she had vertigo.

During the interview, Conde was polite and cooperative but

cried throughout. Dr. Stern found that Conde had some

difficulty remembering verbal instructions but no difficulty

following written instructions and that Conde would not have

trouble with attendance or getting along with others in a work

environment. Dr. Stern also concluded that if Conde could set

boundaries for her son, she would do better emotionally. Based

on a review of the record, Dr. Laura Landerman, a psychologist,

found in September of 2012 that Conde was able to understand,

recall, and carry out short and simple instructions and could

sustain concentration and attention for two hours on routine

tasks at an acceptable pace in a work day.

In October of 2012, Lourdes was treated at Dartmouth-

Hitchcock Hospital for acute nausea and vomiting. A CT scan of

her head showed evidence of a past infract, a stroke, involving

4 the left medial occipital lobe. As a result of the stroke,

Lourdes had a vision deficit in her right eye.

On November 4, 2012, Conde again attempted suicide by

taking an over dose of medication. During her meeting for

medication management the next week, Conde discussed the ongoing

problems with her son and said she took the medication just so

that she could sleep.

She was treated in December of 2012 for vertigo, which had

resolved by March of 2013. In January of 2013, she reported to

her mental health nurse practitioner that she was doing well and

that her only problem was her son. Conde discussed concerns

about her grandson, said that she was waiting for social

security benefits, and declined to consider employment. Her

reports during therapy over the next months were similar. In

May of 2013, her diabetes was well controlled. By July of 2013,

her attention and concentration were normal.

A hearing on her social security application was held on

November 4, 2013. Conde was represented by an attorney and

testified. Conde described her family issues and said that her

unsafe neighborhood kept her from feeling calm. She also

described vision problems that she said caused problems with

concentration and testified that anxiety interfered with her

ability to complete tasks, that she did not sleep well, and that

she had vertigo one or two times per week. The ALJ found that

5 Conde had physical and mental impairments but retained the

capacity to do light work, with certain postural limitations,

and was able to understand and carry out short and simple

instructions. Based on the Medical-Vocational Guidelines, the

ALJ found that Conde was not disabled. When the Appeals Council

denied Conde’s request for review, the decision became the

decision of the Acting Commissioner.

Discussion

In support of her motion to reverse the Acting

Commissioner’s decision, Conde contends that the ALJ made a

variety of errors.2 She argues that the ALJ erred in finding

that she did not have a significant impairment due to an

anxiety-related disorder and that she did not meet the

requirements of Listing 11.04. She also argues that the ALJ

should have given more weight to Dr. Hurst’s opinion, that the

ALJ misunderstood Dr. Stern’s opinion, and that the ALJ erred in

assessing her credibility. Further, she contends that the ALJ

2 Although Conde is represented by counsel, the motion and memorandum do not include a statement of issues, and the memorandum is not organized by headings stating the issues raised. Instead, Conde presents an undifferentiated “Argument” with no citation to legal authority other than Social Security Ruling 96-7p. As a result, it is difficult to ascertain clearly what parts of the decision Conde intends to challenge and what grounds would support her argument. The issues listed here are the court’s best interpretation of Conde’s motion and memorandum.

6 erred in finding that she had the residual functional capacity

to do light work, in failing to find her disabled under Medical-

Vocational Guideline 201.09, and in failing to call a vocational

expert to testify at the hearing.

In determining whether a claimant is disabled for purposes

of social security benefits, the ALJ follows a five-step

sequential analysis.

and 416.920.3 The

claimant bears the burden through the first four steps of

proving that her impairments preclude her from working. Freeman

v. Barnhart,

(1st Cir. 2001). At the fifth

step, the Acting Commissioner has the burden of showing that the

claimant is employable. Heggarty v. Sullivan,

(1st Cir. 1991).

A. Severe Impairments

After determining that a claimant is not engaged in

substantial gainful activity, the ALJ assesses the severity of

the claimant’s impairments. § 404.1520(a)(4). An impairment is

severe, for purposes of the Step Two finding, if the impairment

is “medically determinable” and the impairment alone or in

Because the pertinent regulations governing disability 3

insurance benefits at 20 C.F.R. Part 404 are the same as the pertinent regulations governing supplemental security income at

, the court will cite only Part 404 regulations. See Reagan v. Sec’y of Health & Human Servs.,

(1st Cir. 1989).

7 combination with other impairments “significantly limits [the

claimant’s] ability to do basic work activities.”

§ 404.1520(a)(ii) & (c). The claimant bears the burden of

showing that she has a medically determinable severe impairment.

Ramos v. Barnhart,

(1st Cir. 2003). If an

ALJ erroneously excludes an impairment at Step Two, that

omission is harmless as long as the ALJ found at least one

severe impairment and considered all impairments at Step Four

when assessing the claimant’s residual functional capacity. See

Andrade v. Colvin,

, at *6 (D. Mass. Sept. 30,

2015) (citing cases).

In this case, at Step Two, the ALJ found Conde had the

following severe impairments: “essential hypertension, diabetes

mellitus, a vestibular system disorder/vertigo, major depressive

disorder, and late effects of a cerebrovascular accident in

January of 2010, including an organic mental disorder/cognitive

disorder.” The ALJ also noted that the record showed that Conde

complained of symptoms of anxiety but found that “there is no

substantial medical evidence in the record establishing the

claimant has been formally diagnosed by [an] acceptable medical

source with any anxiety-related disorder, or that the claimant

has significant work-related limitations because of anxiety.”

The ALJ found that because the record did not show that Conde

8 was more than minimally limited by anxiety in her ability to do

work, that was not a severe impairment.

Conde disputes that finding, citing several pages from her

records produced by The Mental Health Center. The cited records

show that Conde complained of anxiety but was diagnosed with a

depressive disorder. Contrary to Conde’s argument, Conde’s

complaints of symptoms, which were recorded by health care

providers, do not provide objective medical evidence of severe

impairment. § 404.1529(a) & (b); see also Rodriguez Pagan v.

Sec’y of Health & Human Servs.,

(1st Cir. 1987).

Further, even if the ALJ erred in finding no severe

impairment due to anxiety, that error is harmless because the

ALJ considered all of her symptoms at Step Four. Specifically,

the ALJ considered Conde’s allegations of impaired memory,

trouble concentrating, impaired attention, difficulty handling

stress, and difficulty getting restful sleep because of her

“mental health deficits.” Conde, who bears the burden at Step

Two and Step Four, has not shown that anxiety caused greater

impairment than the ALJ considered.

B. Listing

At Step Three of the sequential analysis, the ALJ assesses

whether the claimant’s impairments meet or equal the criteria

for a section provided in Appendix 1, Subpart P of 20 C.F.R.

9 Part 404, which are known as the Listings. The Listings “are

descriptions of various physical and mental illnesses and

abnormalities, much of which are categorized by the body system

they affect.” Sullivan v. Zebley,

(1990).

“For a claimant to show that his impairment matches a listing,

it must meet all the criteria for the one most similar listed

impairment.”

. To show that her impairments equal a

listed impairment, a claimant “must present medical findings

equal in severity to all the criteria for the one most similar

listed impairment.”

.

Conde contends that the ALJ erred in failing to find that

she met the criteria for Listing 11.04. Listing 11.04 provides

as follows:

11.04 Central nervous system vascular accident. With one of the following more than 3 months post-vascular accident: A. Sensory or motor aphasia resulting in ineffective speech or communication; or B. Significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station (see 11.00C).4

4 Listing 11.00C provides as follows: Persistent disorganization of motor function in the form of paresis or paralysis, tremor or other involuntary movements, ataxia and sensory disturbances (any or all of which may be due to cerebral, cerebellar, brain stem, spinal cord, or peripheral nerve dysfunction) which occur singly or in various combinations, frequently provides the sole or partial basis for decision in cases of neurological impairment. The assessment of impairment depends on the degree of interference with locomotion and/or interference with the use of fingers, hands, and arms.

10 In support, Conde states that she “suffered and continues to

suffer ineffective speech or communication skills.” She cites

no record evidence to support that assertion, and the record,

along with Conde’s testimony at the hearing, contradict her.5

Therefore, the ALJ did not err in finding that Conde did not

meet the criteria for Listing 11.04.6

C. Medical Opinions

An ALJ is required to consider the medical opinions along

with all other relevant evidence in a claimant’s record.

(b). Medical opinions are evaluated based on

the nature of the medical source’s relationship with the

claimant, the consistency of the opinion with the other record

evidence, the medical source’s specialty, and other factors that

may be brought to the ALJ’s attention. § 404.1527(c). The ALJ

may rely on opinions of state agency consultant physicians under

the same analysis as that applied to opinions of treating or

examining medical sources. § 404.1527(e); Ormon v. Astrue,

(1st Cir. 2012); Smallidge v. Colvin,

, at *5 (D.N.H. Feb. 28, 2014); see also Titles II and

To the extent Conde intended to argue that her alleged 5

difficulties with concentration and maintaining persistence and pace would support a finding that she met the requirements of Listing 11.04, she is mistaken.

6 Conde does not contend that she “equaled” the criteria.

11 XVI: Consideration of Administrative Findings of Fact by State

Agency Medical and Psychological Consultants and Other Program

Physicians, SSR 96-6p,

(July 2, 1996). Medical

opinions based on the claimant’s subjective reports, rather than

objective medical findings, may be entitled to less weight.

Pagan Rodriguez,

.

The ALJ gave great weight to the opinions of state agency

consultants, Dr. Jaffe and Dr. Landerman; gave significant

weight to the opinion of Dr. Stern, who examined Conde as a

consultant; and gave little weight to the opinion of Dr. Hurst,

who examined Conde for New Hampshire’s Aid to the Permanently

and Totally Disabled program (“APTD program”). Conde challenges

the ALJ’s assessment of Dr. Hurst’s opinion and argues that the

ALJ misunderstood the import of Dr. Stern’s opinion.

The ALJ adequately explained her reasons for discounting

Dr. Hurst’s opinion.7 She noted that Dr. Hurst’s opinion

addressed the standard applicable to the ATPD program, not the

different standard used for social security disability

determinations. She then stated that Dr. Hurst’s opinion about

Conde’s functionality was based on Conde’s report of her

subjective symptoms rather than on his own objective findings.

Further, the ALJ found that Dr. Hurst’s opinion was inconsistent

7 Dr. Hurst examined Conde but was not a treating source.

12 with Dr. Landerman’s opinion and Conde’s reports about her

activities and ability to function. Conde has not shown that

the ALJ failed to give Dr. Hurst’s opinion appropriate weight.

Conde also contends that the ALJ erred in failing to

consider Dr. Stern’s “findings” about her symptoms. The

symptoms Conde cites are her subjective reports to Dr. Stern,

not objective medical findings made by Dr. Stern. In contrast,

Dr. Stern found that Conde would be able maintain schedules,

attendance, and relationships at work in an appropriate job.

Therefore, no error occurred.

D. Credibility

It is the responsibility of the ALJ to determine whether

the claimant’s description of her symptoms is credible. Irlanda

Ortiz v. Sec’y of Health & Human Servs.,

(1st

Cir. 1991). In making that determination, the ALJ must first

determine whether the claimant has an impairment that could

reasonably be expected to produce the symptoms described, and,

if so, whether the record evidence supports the claimant’s

statements. Policy Interpretation Ruling Titles II and XVI:

Evaluation of Symptoms in Disability Claims: Assessing the

Credibility of an Individual’s Statements, SSR 96-7p,

, at *4 (July 2, 1996); see also Brown v. Colvin,

, at *10 (D.N.H. Nov. 24, 2014). The ALJ then considers

13 the objective medical evidence in the record, the claimant’s

statements about the intensity and persistence of symptoms, and

other evidence, such as the claimant’s daily activities,

precipitating and aggravating factors, treatment, and

medications.

(c). “It is the ALJ’s

prerogative to resolve conflicting evidence, and [the court]

must affirm such a determination, even if the record could

justify a different conclusion so long as it is supported by

substantial evidence.” Vazquez-Rosario v. Barnhart, 149 F.

App’s 8, 10 (1st Cir. 2005) (internal quotation marks omitted);

see also Rodriguez v. Sec’y of Health & Human Servs.,

(1st Cir. 1981)

Conde appears to charge that the ALJ made only a conclusory

statement about her lack of credibility. She is mistaken. The

ALJ provided a thorough analysis to support her conclusion that

Conde’s “statements concerning the intensity, persistence and

limiting effects of [her] symptoms are not entirely credible.”

See Admin. Rec. 23-25. Therefore, Conde has not shown that the

ALJ erred in assessing her credibility.

E. Residual Functional Capacity

A residual functional capacity assessment determines the

most a person can do in a work setting despite her limitations

caused by impairments.

(a)(1). The Acting

14 Commissioner’s residual functional capacity assessment is

reviewed to determine whether it is supported by substantial

evidence. Irlanda Ortiz v. Sec’y of Health & Human Servs.,

(1st Cir. 1991); Pacensa v. Astrue,

(D. Mass. 2012).

The ALJ found that Conde retained the functional capacity

to do light work with certain postural limitations and with

short and simple instructions. Conde states that the ALJ’s

finding is “inappropriate” but does not provide any developed

argument to support her theory. The ALJ’s assessment is well

supported by the record evidence, as is explained in the

decision.

F. Disability Determination

The ALJ relied on the Medical-Vocational Guidelines

(“Grid”),

, Subpart P, Appendix 2, Rule 202.16 to

find that Conde was not disabled. At the fifth step of the

sequential analysis, the Acting Commissioner bears the burden of

proving that the claimant is employable. Heggarty v. Sullivan,

(1st Cir. 1991). That burden may be satisfied

by using the Grid as long as the claimant’s non-exertional

impairments do not significantly erode the occupational base at

the identified exertional level. Nguyen,

; Ortiz

15 v. Sec’y of Health & Human Servs.,

(1st Cir.

1989).

Conde argues that the ALJ erred in failing to find that she

was disabled under Grid Rule 201.09. Rule 201.09 applies to

claimants who are “[c]losely approaching advanced age.” A

claimant must be between 50 and 54 years old to be “closely

approaching advanced age.”

(d). Because

Conde was only 47 at the time of the ALJ’s decision, she was a

“younger person” and did not qualify for Rule 201.09.8

§ 404.1563(c).

Conde also argues that the ALJ erred in failing to have a

vocational expert testify. The ALJ, however, could properly

rely on the Grid as a framework for decision-making as long as

Conde’s mental impairments did not significantly erode the

occupational base for light and sedentary work. The ALJ

explained in the decision why Conde’s mental health impairments

would have little or no effect on the occupational base for

light unskilled work. Conde does not challenge the ALJ’s

analysis or point to any errors that would require reversal.

8 Conde states at the beginning of her memorandum in support of her motion to reverse that she was a “younger individual” within the meaning of § 404.1563.

16 Conclusion

For the foregoing reasons, the claimant’s motion to reverse

and remand (document no. 11) is denied. The Acting

Commissioner’s motion to affirm (document no. 14) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

January 25, 2016

cc: John A. Wolkowski, Esq. Terry L. Ollila, Esq.

17