UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Shilo Walter

v. Civil No. 15-cv-194-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Shilo Walter moves to

reverse the Acting Commissioner’s decision to deny her

application for Social Security disability insurance benefits,

or DIB, under Title II of the Social Security Act,

, and for supplemental security income, or SSI, under Title

XVI,

. The Acting Commissioner, in turn, moves

for an order affirming her decision. For the reasons that

follow, the decision of the Acting Commissioner, as announced by

the Administrative Law Judge (“ALJ”) is affirmed.

I. Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

(g) (setting out the standard of review for DIB

decisions); see also

(c)(3) (establishing §

405(g) as the standard of review for SSI decisions). However,

the court “must uphold a denial of social security . . .

benefits unless ‘the [Acting Commissioner] has committed a legal

or factual error in evaluating a particular claim.’” Manso-

Pizarro v. Sec’y of HHS,

(1st Cir. 1996) (per

curiam) (quoting Sullivan v. Hudson,

(1989)).

As for the statutory requirement that the Acting

Commissioner’s findings of fact be supported by substantial

evidence, “[t]he substantial evidence test applies not only to

findings of basic evidentiary facts, but also to inferences and

conclusions drawn from such facts.” Alexandrou v. Sullivan,

(S.D.N.Y. 1991) (citing Levine v. Gardner,

(2d Cir. 1966)). In turn, “[s]ubstantial

evidence is ‘more than [a] mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Currier v. Sec’y of HEW,

(1st Cir. 1980) (quoting Richardson v. Perales,

(1971)). But, “[i]t is the responsibility of the

[Acting Commissioner] to determine issues of credibility and to

2 draw inferences from the record evidence. Indeed, the

resolution of conflicts in the evidence is for the [Acting

Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,

(1st Cir. 1991) (per curiam) (citations

omitted). Moreover, the court “must uphold the [Acting

Commissioner’s] conclusion, even if the record arguably could

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

substantial evidence.” Tsarelka v. Sec’y of HHS,

(1st Cir. 1988) (per curiam). Finally, when determining

whether a decision of the Acting Commissioner is supported by

substantial evidence, the court must “review[] the evidence in

the record as a whole.” Irlanda Ortiz,

(quoting

Rodriguez v. Sec’y of HHS,

(1st Cir. 1981)).

II. Background

The parties have submitted a Joint Statement of Material

Facts. That statement, document no. 13, is part of the court’s

record and will be summarized here, rather than repeated in

full.

Walter has been diagnosed with both physical and mental

impairments including migraine headaches, carpal tunnel

syndrome, degenerative disc disease, chronic obstructive

pulmonary disease, depressive disorder, and posttraumatic stress

disorder (“PTSD”) with social anxiety, panic attacks, and

3 agoraphobia. In this section, the court focusses on three

aspects of the record that are related to Walter’s claims of

error.

A. Walter’s Migraines

On August 25, 2011, Walter went to the emergency room

complaining of a migraine headache that had lasted for three and

one half days. She was diagnosed with a “[m]igrainous-type

headache, improved.” Administrative Transcript (hereinafter

“Tr.”) 759, 1101. She was treated with intravenous (“IV”)

fluids and medication, and was discharged with Percocet. Four

days later, she saw her primary care provider, nurse

practitioner Christopher Laurent, complaining of a persistent

migraine. Again, she was given IV fluids and medication.

The day after Laurent treated Walter for her migraine, she

went to the emergency room and was diagnosed with respiratory

failure. Thereafter, she was intubated, transferred to another

hospital, placed in a medically induced coma for 11 days, and

diagnosed with Legionnaire’s Disease. Medical records generated

during Walter’s hospital stay refer to migraines in her medical

history, but do not document any further complaints of migraines

or treatment for migraines.

After Walter was discharged from the hospital, she saw

Laurent at least 18 times between September 16, 2011, and May

4 22, 2012. At none of those visits did she complain of

headaches, and 17 of the 18 progress notes documenting those

visits bear the notation “negative for headache.” On June 13,

2012, Walter complained to Laurent of daily headaches she called

dull, mild, and “NOT the worst headache[s] [of her] life.” Tr.

865. She also reported that her headaches were relieved by

Ibuprofen, which Laurent told her to continue taking. Then,

from June 13, 2012, through July of 2013, Walter saw Laurent

another 19 times, and each of the progress notes from those

visits bears the notation “negative for headache.”

At her hearing before the ALJ, on August 16, 2013, Walter

offered the following testimony about her migraines:

A I’ll get headaches, and I have to lay down from like, anywhere from three to five hours, and take Motrin, and have no light, no sounds.

Q And typically in the course of a month, how many of those are you going to have?

A Probably 10 in a month.

Q Okay. So typically at least a couple a week?

A Yes.

Q Do you ever get through a month without having a migraine?

A No.

Q Do you ever get through a week without having a migraine?

A No

5 Q Okay. Have they found any medicine that made the migraines go away?

A No.

Tr. 46.

B. Opinions on Walter’s Physical Impairments

In April of 2012, Dr. Burton Nault, a non-examining state-

agency consultant, gave an assessment of Walter’s physical

residual functional capacity (“RFC”).1 He opined that Walter had

various exertional, postural, and environmental limitations, but

also opined that she had no manipulative limitations, i.e., no

limitations in her abilities for reaching, handling, fingering,

and feeling. In July of 2013, Dr. John Ford completed a Medical

Source Statement of Ability to Do Work-Related Activities

(Physical). In it, he opined that Walter had an unlimited

capacity to perform all four manipulative activities.

C. Opinions on Walter’s Mental Impairments

After Walter applied for DIB and SSI, the Social Security

Administration (“SSA”) determined that “[t]he evidence as a

whole, both medical and non-medical, [was] not sufficient to

support a decision on [Walter’s] claim.” Tr. 57, 68.

1 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [her] limitations.”

(a)(1) & 416.945(a)(1).

6 Consequently, the SSA sent Walter to Dr. Jeffrey Kay for a

consultative psychological examination. In a Mental Health

Evaluation Report documenting his examination, Dr. Kay diagnosed

Walter with major depressive disorder and chronic PTSD. He did

not diagnose a personality disorder.2

With respect to Walter’s then-current level of functioning,

Dr. Kay gave the following assessments and opinions:

Activities of Daily Living: She lacks energy and motivation to carry out house cleaning and cooking responsibilities consistently and independently. She relies heavily on her partner and her parents to remind her of chores and appointments. She is able to care for her hygiene. She rarely ventures out of the house and has not regained her driver’s license. She is unable to manage a checkbook.

Social Functioning: Isolating from everyone other than family and interacting with family rarely. Irritability is not a major problem but quite anxious socially and has very little motivation.

Understanding and Remembering Instructions: MMSE [mini mental state examination] suggests that she has no significant difficulty with simple instructions but the anxiety and poor memory she reports since the coma are likely to interfere with complex instructions.

Concentration and Task Completion. She was able to do serial 7’s but made one miscalculation. She lacks the motivation to even start housework and cooking, much

2 According to the then-current edition of the DSM, personality disorders would be listed under Axis II. See American Psychological Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) (4th ed. 2000) 29. Under Axis II, Dr. Kay wrote “[d]ependent traits,” Tr. 795, but did not diagnose Walter as having any of the eleven personality disorders listed under Axis II.

7 less to complete it. She needs frequent reminders and prompts. She has to reread or read out loud. She is not able to independently and consistently complete tasks.

Reaction to Stress, Adaptation to Work or Work-like Situations: Probable sleep disorder, social anxiety and depression are likely to interfere with attendance and punctuality. If stressed she is likely to cry and leave work. Productivity will be unreliable due to poor concentration and fatigue and low motivation as well as pain and [shortness of breath]. She is able to accept respectful and patient supervision. She is likely to be too depressed and anxious to make decisions of any consequence.

Tr. 794-95.

In reliance upon Dr. Kay’s assessments and opinions, state-

agency psychological consultant Dr. Laura Landerman performed a

psychiatric review technique (“PRT”),3 which was reported on a

Disability Determination Explanation (“DDE”) form. While Dr.

Kay had only diagnosed depression and PTSD, Dr. Landerman

considered affective disorders (i.e., depression), anxiety

disorders (i.e., PTSD), and personality disorders when she

performed her PRT. As best the court can tell, Dr. Landerman

considered a personality disorder in response to Dr. Kay’s Axis

II observation that Walter exhibited dependent traits.

Dr. Landerman found that Walter’s affective disorder and

anxiety disorder met the SSA’s diagnostic criteria for those

3 The SSA uses the “psychiatric review technique” to evaluate the severity of mental impairments. See

.1520a (describing the technique) & 416.920a (same).

8 mental impairments, but that her personality disorder did not.

She then found that Walter had moderate restrictions in her

activities of daily living; marked difficulties in maintaining

social functioning; marked difficulties in maintaining

concentration, persistence and pace; and had had no repeated

episodes of decompensation. Ultimately, Dr. Landerman

determined that Walter’s affective disorder was a disabling

mental impairment under the criteria set out in the applicable

SSA regulations.

Subsequently, Dr. Henry Schniewind of the SSA’s Disability

Quality Branch (“DQB”) reviewed Dr. Landerman’s PRT and

disagreed with her finding that Walter had marked difficulties

in maintaining social functioning and marked difficulties in

maintaining concentration, persistence and pace. Accordingly,

he stated that “[t]he evidence does not support a listings level

psych[ological] impairment.” Tr. 798.

Because he found that Walter did not have a listings level

psychological impairment, i.e., one that is disabling per se

under the applicable regulations,4 Dr. Schniewind went on to

consider Walter’s mental RFC:

If we look at the objective evidence and the observations of the claims representative [and] the

4 The SSA’s listing of disabling impairments is discussed in greater detail in the section that follows.

9 examining source [i.e., Dr. Kay] the following MRFC [mental RFC] assessment is supported:

A) She can understand and remember all simple instructions.

B) From a psychological perspective (not including fatigue that is due to her somatic conditions)5 she is able to carry out very simple tasks for a standard work week with adequate pace and persistence.

C) No difficulties relating [to other people] were observe[d]. She is able to accept supervision for simple task completion. She can relate appropriately to co-workers and to the general public.

D) She can get around independently. She lost her driver’s license for not showing up in court to pay a fine. She can adapt to simple and routine changes in task assignment.

Tr. 798.

Based upon Dr. Schniewind’s review, Walter’s application

was returned to the SSA’s Disability Determination Service

(“DDS”) due to an “incorrect impairment decision.” Tr. 81, 96.

A second DDE form, completed after Dr. Landerman took a second

look at Walter’s application, describes the remand from the DQB

this way:

DQB Psy[chology] review . . . indicates totality of evidence more accurately reflects presence of severe mental impairment ([diagnosis of] adjustment [disorder] with anxiety) with residual limitations that would support retained unskilled work capacity . . . . DDS is requested to provide revised decision reflecting Step 5/other work denial . . .

5 “Somatic” means “of, relating to, or affecting the body.” Webster’s Third New International Dictionary (unabridged) 2171 (1993).

10 Tr. 81-82, 96-97. On remand, DDS provided a revised decision

that included a new PRT by Dr. Landerman. That PRT includes a

determination that Walter had only moderate difficulties in

maintaining social functioning and moderate difficulties in

maintaining concentration, persistence, or pace. On that basis,

Dr. Landerman determined that Walter did not have a listings

level mental impairment.

Because Dr. Landerman determined that Walter did not have a

disabling mental impairment, she went on to provide an

assessment of Walter’s mental RFC. In her assessment, Dr.

Landerman opined that Walter had moderate limitations in two of

three abilities related to understanding and memory (and no

significant limitation in the other ability in that category),6

moderate limitations in one of eight abilities related to

sustained concentration and persistence (and no significant

limitation in any of the other seven abilities in that

category),7 and no limitations related to social interaction or

adaptation.

6 Specifically, she found that Walter was moderately limited in her ability to understand and remember very short and simple instructions and was moderately limited in her ability to understand and remember detailed instructions.

7 Specifically, she found that Walter was moderately limited in her ability to carry out detailed instructions.

11 In July of 2013, Dr. Ford, the same family-practice

physician who provided an opinion on Walter’s physical RFC, also

completed a Medical Source Statement of Ability to Do Work-

Related Activities (Mental). Respondent appears to concede that

Dr. Ford is a treating source, and the ALJ treats him as such,

but the forms that Dr. Ford completed provide no information

about the length or nature of his treatment relationship with

Walter. Her memorandum of law is silent on this topic.

Moreover, she does not direct the court to any medical records

authored by Dr. Ford, and the court has not been able to locate

any in the administrative transcript. Be that as it may, Dr.

Ford opined that Walter had at least marked limitations in: one

of three abilities related to understanding and memory, six of

eight abilities related to sustained concentration and

persistence, three of five abilities related to social

interaction, and three of four abilities related to adaptation.

When asked to “provide a diagnosis and a brief indication of

what medical or clinical findings support[ed] [his] assessment,”

Tr. 1377, Dr. Ford wrote:

Personality disorder, depression with anxiety, learning disorder, long [history] of depression [illegible] improvement. Personality disorder not [illegible].

12 D. The ALJ’s Decision

After conducting a hearing, the ALJ issued a decision that

includes the following relevant findings of fact and conclusions

of law:

3. The claimant has the following severe impairments: depressive disorder; chronic obstructive pulmonary disease; tobacco abuse affecting her back pain and breathing); degenerative disc disease; and alcohol abuse (20 CFR 404.1520(c) and 416.920(c)). . . .

. . . .

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

. . . .

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a), except with the ability to stand/walk for up to 2 hours. She must avoid concentrated exposure to respiratory irritants and extreme temperatures. She is able to occasionally balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes and scaffolds. She is able to understand and remember simple instructions, and she is able to carry out simple tasks for a standard workweek with adequate pace and persistence.

. . . .

10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

13 Tr. 12, 13, 15, 19. The ALJ based that conclusion on a finding

that the limitations imposed by Walter’s impairments “have

little or no effect on the occupational base of unskilled

sedentary work.” Tr. 20. Because the ALJ found that Walter’s

impairments did not significantly erode the occupational base of

unskilled sedentary work, she did not elicit testimony from a

vocational expert (“VE”).

III. Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

a disability.

(a)(1)(A)-(D). To be eligible

for supplemental security income, a person must be aged, blind,

or disabled, and must meet certain requirements pertaining to

income and assets.

(a). The question in this

case is whether Walter was under a disability from August 25,

2011, through December 23, 2013.

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI benefits, an ALJ

is required to employ a five-step process. See

(DIB) & 416.920 (SSI).

14 The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v. Barnhart,

(1st Cir. 2001) (citing

).

The claimant bears the burden of proving that she is

disabled. See Bowen v. Yuckert,

(1987). She

must do so by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

(D. Mass. 1982)). However,

[o]nce the [claimant] has met his or her burden at Step 4 to show that he or she is unable to do past work due to the significant limitation, the [Acting] Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the [claimant] can still perform. Arocho v. Sec’y of Health & Human Servs.,

(1st Cir. 1982). If the [claimant’s] limitations are exclusively exertional, then the [Acting] Commissioner can meet her burden through the use of a chart contained in the Social Security regulations.

; Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, App. 2, tables 1-3 (2001), cited in

; Heckler v. Campbell,

(1983). “The Grid,” as it is known, consists of a matrix of the [claimant’s] exertional capacity,

15 age, education, and work experience. If the facts of the [claimant’s] situation fit within the Grid’s categories, the Grid “directs a conclusion as to whether the individual is or is not disabled.” 20 C.F.R. pt. 404, subpt. P, App. 2, § 200.00(a), cited in

. However, if the claimant has nonexertional limitations (such as mental, sensory, or skin impairments, or environmental restrictions such as an inability to tolerate dust,

§ 200(e)) that restrict his [or her] ability to perform jobs he [or she] would otherwise be capable of performing, then the Grid is only a “framework to guide [the] decision,”

.969a(d) (2001). See also Pratts v. Chater,

(2d Cir. 1996) (discussing use of Grid when applicant has nonexertional limitations).

Seavey,

(parallel citations omitted). Finally,

[i]n assessing a disability claim, the [Acting Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the [claimant] or other witness; and (3) the [claimant]’s educational background, age, and work experience.

Mandziej,

(citing Avery v. Sec’y of HHS,

(1st Cir. 1986); Goodermote v. Sec’y of HHS,

(1st Cir. 1982)).

B. Walter’s Claims

Walter claims that this case should be remanded because the

ALJ: (1) erred by failing to discuss her migraine headaches

anywhere in her decision; (2) erred in determining her physical

RFC; (2) erred in determining her mental RFC; and (4) erred by

finding that the limitations resulting from her impairments had

16 little or no effect on the occupational base of unskilled

sedentary work. None of Walter’s claims is meritorious. The

court considers each of those claims in turn.

1. Migraine Headaches

Walter argues that the ALJ erred by failing to deem her

migraine headaches a severe impairment, at step two, and by

failing to include any limitations in her RFC based upon her

need to lie down for several hours at a time, one or more days a

week, because of her migraines. Respondent concedes that the

ALJ does not explicitly discuss Walter’s migraines in her

decision, but contends that she was not obligated to do so.

Under the applicable regulations, an ALJ is obligated to

“consider all evidence in [a claimant’s] case record.”

(a)(3) & 416.920(a)(3). But there are many

ways in which an ALJ may do so, and an ALJ is “not required to

recite every piece of evidence which favor[s]” a claimant.

Santiago v. Sec’y of HHS,

,

, at *4

(1st Cir. 1995) (per curiam) (unpublished table decision)

(citing Stein v. Sullivan,

(7th Cir. 1992));

see also Shaw v. Sec’y of HHS,

,

, at

*5 (1st Cir. 1994) (per curiam) (unpublished table decision).

Here, the ALJ did not: (1) determine that Walter’s

headaches were a severe impairment; (2) include any headache-

17 related limitations in Walter’s RFC; or (3) mention headaches in

her discussion of Walter’s symptoms. In fact, the ALJ said

nothing about Walter’s migraine headaches anywhere in her

decision.

On the other hand, the ALJ prefaced her assessment of

Walter’s RFC with a statement that she had carefully considered

the entire record. And her discussion of Walter’s symptoms

generally cites Exhibit 9F, which includes records of the

migraine treatment Walter received at the emergency room and

from Laurent, as well as nearly 40 progress notes from Laurent

bearing the notation “negative for headache.” Furthermore, the

ALJ’s discussion specifically cites five medical records that:

(1) document complaints about a variety of conditions, but do

not mention headaches; and/or (2) affirmatively state “negative

for headache.”

The ALJ certainly could have said more about Walter’s

migraines. Even so, her “decision reveals that [she] considered

the record as a whole,” Santiago,

, at *4,

including evidence about Walter’s headaches. Accordingly, the

manner in which the ALJ considered Walter’s headaches does not

entitle her to a remand.

18 2. Physical RFC

Walter claims that the ALJ erred in assessing her physical

RFC by ignoring Dr. Ford’s opinion that she was limited in her

abilities to reach, handle, finger, and feel with her upper

extremities. Dr. Ford, however, gave no such opinion. Rather,

his Medical Source Statement reports an opinion that Walker’s

abilities to perform those four manipulative activities were

unlimited. See Tr. 1374. Because there is no factual basis for

Walter’s second claim of error, that claim necessarily fails.

3. Mental RFC

Walter claims that the ALJ erred in assessing her mental

RFC by ignoring her personality disorder and mishandling the

medical opinions.

Turning to Walter’s first claim, she asserts that the ALJ

erred by failing to adequately consider her personality

disorder. However, the ALJ expressly discussed both Dr.

Landerman’s revised PRTs and Dr. Ford’s Medical Source

Statement, which are among the very few documents in the

administrative transcript that even use the term “personality

disorder.”8 Moreover, while Walter criticizes the ALJ for

8 The only other documents the court has located that use the term “personality disorder” are Dr. Landerman’s initial PRTs, i.e., the ones that were replaced by her revised PRTs. Walter directs the court to no medical records other than Dr.

19 ignoring medical opinion evidence relating to the limiting

effects of her personality disorder, she does so without

identifying any such evidence or specifying any limitations

arising from a personality disorder that the ALJ should have

found, but did not. By evaluating the opinions of Drs.

Landerman and Ford, the ALJ fulfilled her responsibility to

consider Walter’s putative personality disorder.

Walter’s second claim is that the ALJ mishandled the

medical opinions contained in Dr. Landerman’s initial PRTs,

mishandled Dr. Ford’s opinion, and proceeded impermissibly after

rejecting the opinions of Drs. Kay and Ford.

Regarding Dr. Landerman’s initial PRTs, Walter correctly

notes the ALJ’s obligation to evaluate every medical opinion in

a claimant’s case record. See

(c) &

416.927(c). She then goes on to criticize the ALJ for

“completely ignor[ing] Dr. Landerman’s initial findings and

[giving] no explanation for preferring [Dr. Landerman’s] second,

rather than her first, mental RFC assessment.” Cl.’s Mot. to

Reverse (doc. no. 7) 6. Once Dr. Landerman revised her initial

PRTs, however, the revised PRTs became her opinions and her

initial PRTs became, at best, discarded drafts. Whatever they

Ford’s opinion that suggest a diagnosis of a personality disorder and none that document treatment for such a disorder.

20 were, they were no longer Dr. Landerman’s opinions, and because

they were non-opinions by the time the ALJ reviewed Walter’s

case record, she had no obligation to consider them. That the

ALJ did not provide an evaluation of Dr. Landerman’s initial

opinions gives this court no grounds for ordering a remand.

Walter also asserts, in her motion to reverse, that “[t]he

ALJ ignored Dr. Ford’s finding” that her mental impairments

resulted in greater functional limitations than those assessed

by the ALJ in her decision. Doc. no. 7, at 4-5. In her reply

to respondent’s motion to affirm, Walter makes a different

argument, not that the ALJ ignored Dr. Ford’s opinion but that

she failed to give good reasons for rejecting it. Walter’s

initial argument fails because the ALJ devoted a full paragraph

of her decision to evaluating Dr. Ford’s opinions, and her

second argument is not persuasive.

Under the applicable regulations, an ALJ evaluating a

medical opinion from a treating source should consider: (1) the

length of the treatment relationship and the frequency of

examination; (2) the nature and extent of the treatment

relationship; (3) the supportability of the opinion; (4) the

consistency of the opinion with the record as a whole; (5) the

specialization of the treating source; and (6) other factors.

See

(c) & 416.927(c). Here, after

21 discussing the weight she gave Dr. Ford’s opinion on Walter’s

physical impairments, the ALJ explained her decision to give

limited weight to Dr. Ford’s opinion on Walter’s mental

impairments this way:

[I]n another check-off form, [Dr. Ford] opines that [Walter] has difficulty in carrying out detailed instructions, maintaining attention and concentration for an 8-hour workday, maintaining regular attendance, as well as [in] her ability to get along with coworkers and maintain socially appropriate behavior. I have given his opinion limited weight because it is inconsistent with the claimant’s treatment records for her physical and psychological impairments. Her activities of daily living also show the ability to travel independently, and the evidence of record does not reflect issues in getting along with others. Her medical records show cooperative behavior with good grooming and pleasant behavior. In addition, I note that Dr. Ford is a family practitioner, and is not an expert in psychological treatment.

Tr. 18 (citations to the record omitted). The court can discern

no error in the ALJ’s consideration of Dr. Ford’s opinion.

The ALJ gave Dr. Ford’s opinion limited weight because it

was inconsistent with Walter’s treatment records. Walter

criticizes the ALJ for making “an unsupported blanket assertion”

about the inconsistency of Dr. Ford’s opinion. Cl.’s Reply

(doc. no. 14) 6. She then criticizes the ALJ for “cit[ing] no

evidence to suggest what this unstated inconsistency might be.”

Id. at 7. However, the ALJ cites progress notes authored by

Laurent documenting pleasant cooperative behavior, which is

inconsistent with Dr. Ford’s opinions that Walter has

22 difficulties getting along with others and maintaining socially

appropriate behavior. Thus, the ALJ gave a good reason, rooted

in the regulations and based on substantial evidence, for

discounting Dr. Ford’s opinion. See

(c)(4)

& 416.927(c)(4) (“Generally, the more consistent an opinion is

with the record as a whole, the more weight we will give it.”).

Beyond that, while Walter criticizes the ALJ for failing to

cite evidence to support her appraisal of Dr. Ford’s opinion,

she identifies no evidence that supports Dr. Ford’s opinion.

Moreover, the ALJ’s statement that Dr. Ford’s opinion was

inconsistent with Walter’s treatment records may reasonably be

understood to mean both that Dr. Ford’s opinion was inconsistent

with Laurent’s progress notes, see Tr. 828, 862, and that Dr.

Ford’s opinion was inconsistent with the lack of any treatment

records authored by Dr. Ford. Given that supportability is also

a factor to be considered when weighing the opinion of a

treating source, see

(c)(3) &

416.927(c)(3), the lack of any treatment records by Dr. Ford is

also substantial evidence supporting the ALJ’s decision to

discount his opinion.

Walter also objects to the ALJ’s reliance upon the fact

that Dr. Ford is a family practitioner rather than a

psychiatrist, and argues that “the ALJ’s comments on activities

23 of daily living are not useful.” Cl.’s Reply (doc. no. 14) 7.

There is, however, nothing objectionable about those aspects of

the ALJ’s decision.

Finally, in reliance upon Nguyen v. Chater,

(1st Cir. 1999) (per curiam), Walter argues that after rejecting

the opinions of Drs. Kay and Ford, the ALJ impermissibly

formulated her RFC. Walter’s reliance upon Nguyen is misplaced.

In Nguyen, the ALJ rejected a medical opinion favorable to the

claimant and then formulated an RFC that was unsupported by any

other medical opinion. See

. The court of appeals

vacated the district court’s order affirming the ALJ’s decision,

and directed the district court to remand the case to the SAA on

grounds that “[t]he ALJ was not at liberty to ignore medical

evidence or substitute his own views for uncontroverted medical

opinion.”

(citing Rose v. Shalala,

(1st Cir.

1994); Nieves v. Sec’y of HHS,

(1st Cir. 1985);

Suarez v. Sec’y of HHS,

(1st Cir. 1984)). This,

however, is not a case in which an ALJ substituted her view for

an uncontroverted medical opinion. Rather, the ALJ gave limited

weight to Dr. Ford’s opinion on Walter’s RFC, gave limited

weight to the opinion in Dr. Kay’s Mental Health Evaluation

Report (which was not, strictly speaking, an opinion on Walter’s

24 RFC),9 and then formulated an RFC that relied upon Dr.

Landerman’s opinion. Nothing in Nguyen calls into question the

propriety of the ALJ’s reliance upon Dr. Landerman’s opinion.

4. Step Five

Walter’s final claim is that the ALJ erred, at step five,

by determining, without testimony from a VE, that the

limitations she included in her RFC had “little or no effect on

the occupational base of unskilled sedentary work.” Tr. 20.

This claim is derivative of Walter’s claims that the ALJ

erroneously determined her RFC. If, indeed, the ALJ had

incorporated limitations based upon Walter’s hearing testimony

about migraines into her RFC, or if Walter’s RFC included the

mental limitations posited by Dr. Ford, rather than those

posited by Dr. Landerman, then perhaps the ALJ would have

required the testimony of a VE to assess the effects of those

limitations on Walter’s ability to perform the full range of

unskilled sedentary work. But because the ALJ committed no

9 See Dubois v. Colvin, No. 14-cv-451-LM,

, at *4 (D.N.H. Oct. 28, 2015), report and recommendation adopted by

(D.N.H. Nov. 18, 2015), for a discussion of the difference between the work-related functional limitations that form the basis of an RFC assessment and the so-called paragraph B criteria, which “are used to assess the severity of a mental impairment at step two, and to determine whether a mental impairment meets or equals the severity of a listed impairment at step three.”

25 error in considering Walter’s migraines or in evaluating the

medical opinions, her RFC assessment withstands judicial

scrutiny. Thus, the court sees no error in the ALJ’s

determination that Walter’s RFC permitted her to perform nearly

the full range of unskilled sedentary work.

IV. Conclusion

Because the ALJ committed neither a legal nor a factual

error in evaluating Walter’s claim, see Manso-Pizarro,

, her motion for an order reversing the Acting

Commissioner’s decision, document no. 7, is denied, and the

Acting Commissioner’s motion for an order affirming her

decision, document no. 12, is granted. The clerk of the court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

February 18, 2016

cc: Penelope E. Gronbeck, Esq. Robert J. Rabuck, Esq.

26