UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Cherie Ann Lacourse,

v. Civil No. 15-cv-375-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Cherie Ann Lacourse 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 fibromyalgia, post-

traumatic stress disorder, and cognitive disorder, Lacourse

retains the residual functional capacity (“RFC”) to perform jobs

that exist in significant numbers in the national economy, and

thus is not disabled. See

(a), 416.905(a).

The Appeals Council granted Lacourse’s request for review of the

ALJ’s initial decisions, see

§ 404.967, vacating the ALJ’s

decision and remanding for further proceedings. The ALJ issued

a new decision on remand, and the Appeals Council denied

Lacourse’s request for review thereof, with the result that the

ALJ’s second decision became the final decision on Lacourse’s

application, see id. § 404.981. Lacourse then appealed that decision to this court, which has jurisdiction under

(g) (Social Security).

Lacourse has moved to reverse the decision, see

L.R. 9.1(b), contending that the ALJ erred (1) by incorrectly

weighing the opinion of one medical source when determining

Lacourse’s RFC, and (2) in his assessment of the credibility of

Lacourse’s subjective complaints. 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 Lacourse’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

2 his conclusion.” Irlanda Ortiz v. Sec’y of Health & Human

Servs.,

(1st Cir. 1991).

II. Background1

The ALJ invoked the requisite five-step process in

assessing Lacourse’s request for disability benefits. See

. First, he concluded that Lacourse had not

engaged in substantial gainful activity during the period

between the alleged onset of her disability on May 20, 2011, and

the date she will no longer be insured, December 31, 2016. He

then analyzed the severity of Lacourse’s impairments, concluding

that Lacourse suffered from three severe impairments:

fibromyalgia, post-traumatic stress disorder, and cognitive

disorder. Admin. R. at 27.

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

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.

After reviewing the medical evidence of record, Lacourse’s own

statements, and opinions from no fewer than 11 consultants and

treating providers, the ALJ concluded that Lacourse retained the

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. 9) is incorporated by reference. See L.R. 9.1(d).

3 RFC to perform simple, unskilled, light work, albeit with

several physical limitations, in a low stress environment

(“defined as requiring little to no change in the work setting

and little to no need for the use of judgment”), and was able to

“maintain attention and concentration for two-hour increments

throughout an eight-hour workday.” Admin. R. at 29. Finding

that, limited in this manner, Lacourse was unable to perform her

past, relevant work as a cosmetologist or special education

teacher, see

, the ALJ continued to step

five, where he concluded that Lacourse could perform jobs that

exist in significant numbers in the economy. Therefore, the ALJ

found, Lacourse was not disabled within the meaning of the

Social Security Act.

III. Analysis

Lacourse challenges two aspects of the ALJ’s analysis.

First, she contends that the ALJ erred in crafting Lacourse’s

RFC by incorrectly weighing the opinion of Dr. Bennett Slotnick,

a neuropsychologist who evaluated Lacourse and opined that

Lacourse may be limited to part-time work. Second, Lacourse

argues that substantial evidence does not support the ALJ’s

determination that Lacourse’s statements concerning the

intensity, persistence, and limiting effects of her symptoms

were “not entirely credible.” Admin. R. at 13. The court

4 addresses each of these arguments in turn and concludes that the

ALJ did not err on either front.

A. Residual functional capacity

In crafting Lacourse’s RFC, the ALJ weighed and considered

the medical opinions of some 11 sources. Lacourse challenges

the weight given to one portion of one of these opinions -- that

of Dr. Slotnick, who performed a neuropsychological examination

on Lacourse at the request of her vocational rehabilitation

counselor. The ALJ afforded weight to the majority of

Dr. Slotnick’s opinion, but gave “less than great weight” to

that opinion only “to the extent that [Dr. Slotnick] appears to

limit [Lacourse] to part-time work.” Admin. R. at 34-35. The

ALJ discounted that portion of Dr. Slotnick’s opinion because

“[t]he evidence of record does not reflect cognitive impairment

that would prevent [Lacourse] from working at least simple,

unskilled work on a full-time basis.” Id. at 35. Lacourse

argues that the ALJ erred by giving less than great weight to

Dr. Slotnick’s conclusion that Lacourse could work only part

time.

The ALJ weighs the medical opinions “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

5 brought to the ALJ's attention.” Grant v. Colvin,

(citing

(c)). It is for the ALJ to resolve

conflicts between medical opinions, and the ALJ’s decision to

resolve those conflicts against the claimant must be upheld if

“that conclusion has substantial support in the record.”

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

(1st

Cir. 1982). Substantial evidence is that which a “reasonable

mind, reviewing the evidence in the record as a whole, could

accept . . . as adequate to support [the] conclusion.” Ortiz v.

Sec’y of Health & Human Servs.,

(1st Cir.

1991) (quoting Rodriguez v. Sec’y of Health & Human Servs.,

(1st Cir. 1981)). The ALJ’s decision is so

supported here.

The record contains three other opinions that address the

effects of Lacourse’s mental impairments on her ability to work.

As the ALJ points out, Dr. Darlene Gustavson, who also examined

the plaintiff, noted that she was “able to sustain attention and

concentration, persistence and pace, . . . complete tasks, . . .

[and] tolerate stresses common to a work environment, which

includes the ability to . . . consistently maintain attendance

and schedule.” Admin. R. 32. The ALJ also relied, to a degree

appropriate for a source that is not considered an “acceptable

medical source,” on the opinion of Lacourse’s treating counselor

that her “level of functioning and overall ability with regards

6 to her mental health was within normal limits,” and that she

observed no “significant symptoms that are causing [Lacourse]

impairment in her daily life.” Id. at 33. The ALJ also

afforded “some weight” to the opinion of a state agency

psychological consultant, who concluded that Lacourse “has no

severe psychological or cognitive impairment, with only mild

limitations in activities of daily living, social functioning,

and ability to maintain concentration, persistence or pace.”

Id.

Importantly, as the ALJ points out, Dr. Slotnick’s

conclusion that Lacourse did not appear to have “the requisite

stamina and overall ability to maintain full-time employment”

focused on her ability to work “at a level equal to that which

existed” before the onset of her disability. Id. at 1083. He

noted, instead, that “an active job search would seem

appropriate,” as it “could assist in identifying and ultimately

pursing and securing a potential career path compatible with her

medical, emotional, and cognitive status.” Id. As the ALJ

observed, Dr. Slotnick did “not indicate whether the claimant is

able to work full-time in an unskilled position . . . .” Id.

at 35. In light of the thorough treatment that the ALJ afforded

Dr. Slotnick’s report and those of the other opinions addressing

the effect of Lacourse’s mental impairments, the court simply

cannot conclude that the ALJ erred in the weight he afforded to

7 Dr. Slotnick’s conclusion that Lacourse may be able to work

part-time.

None of Lacourse’s arguments to the contrary alter that

conclusion. Lacourse argues that the ALJ should have afforded

Dr. Slotnick’s evaluation greater weight because it “was founded

upon a cluster of causes,” rather than “based upon a cognitive

impairment alone,” Plaintiff’s Mem. (document no. 7-1) at 8, and

because of the “thoroughness and depth of [his] neuropsycho-

logical evaluation,” id. at 10. The ALJ, in fact, acknowledged

the thoroughness of Dr. Slotnick’s evaluation and afforded “his

opinion weight to the extent that he finds there is little

evidence of any cognitive impairment,” a conclusion he

determined was consistent with Lacourse’s treatment records,

Admin. R. at 35, and one that Lacourse does not challenge.

Furthermore, as the Acting Commissioner points out, the ALJ

considered and afforded weight to other medical sources --

including Dr. Gustavson -- who did not render their opinions in

a vacuum, but also considered a variety of factors in drawing

their conclusions.

Lacourse’s suggestion that Dr. Slotnick’s opinion

concerning the amount of time that Lacourse could work should be

given greater weight because Dr. Slotnick performed a follow-up

interview some months later, Plaintiff’s Mem. (document no. 7-1)

at 12, fares equally poorly. Though a subsequent visit may have

8 confirmed Dr. Slotnick’s earlier conclusions, it provided, he

explained, “little additional information . . . to add to that

described initially.” Admin. R. at 1178. As such, the fact of

a second interview that had little impact on Dr. Slotnick’s

opinion does not provide grounds for this court to conclude that

the ALJ erred in evaluating those opinions.1

Lacourse further argues that the ALJ erred in discounting

Dr. Slotnick’s conclusion in light of the fact that his is the

only neuropsychological opinion in the record. See Plaintiff’s

Mem. (document no. 7-1) at 10-12. The ALJ ought “generally give

more weight to the opinion of a specialist about medical issues

related to his or her area of specialty than to the opinion of a

source who is not a specialist.”

(c)(5).

At the same time, “the more consistent an opinion is with the

record as a whole, the more weight” that opinion should be

given.

§ 404.1527(c)(4). The ALJ complied with these

requirements, affording weight to Dr. Slotnick’s opinion as a

neuropsychologist to the extent that his findings were

1 Lacourse does not go quite so far as to contend that subsequent evaluative visits rendered Dr. Slotnick a treating provider, entitling his opinion to controlling weight under

. Nor does he appear to the court to be a “treating source,” that is, Lacourse’s “own physician, psychologist, or other acceptable medical source who provides [her], or has provided [her], with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [her].”

§ 404.1502.

9 “supported in [Lacourse’s] treatment records and normal

neurological and IQ testing.” Admin. R. at 35. To the extent

that the ALJ concluded that a specific portion of Dr. Slotnick’s

opinion lacked support in the record, however, he gave it less

weight. Id. Accordingly, the ALJ did not err in his treatment

of this specialist’s opinion.2

Finally, Lacourse argues that “the ALJ’s RFC finding was

tainted by his credibility assessment.” Plaintiff’s Mem.

(document no. 7-1) at 13. The court rejects that argument in

light of its conclusion that the ALJ did not err in his

credibility assessment. See infra Part III.B.

B. Subjective complaints and credibility

Lacourse next contends that the ALJ erred in evaluating her

subjective complaints. It is the ALJ’s responsibility “to

evaluate 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

will generally defer to that determination when the ALJ supports

2 To the extent that Lacourse supports her position with citation to cases wherein the opinion of a specialist who was also a treating provider was given greater weight, see, e.g., Newton v. Apfel,

(5th Cir. 2000); Singh v. Apfel,

(8th Cir. 2000), those cases are inapposite here. As discussed supra at 9 n. 1, Lacourse does not contend that Dr. Slotnick was a treating provider.

10 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 evidence in the record 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 Lacourse 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 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

. Following that

process, the ALJ concluded that Lacourse’s impairments crossed

the threshold of the first question, in that her “medically

determinable impairments could reasonably be expected to cause

the alleged symptoms . . . .” Admin. R. at 30. At the second

11 at third steps, however, he concluded that Lacourse’s

“statements concerning the intensity, persistence and limiting

effects of these symptoms are not entirely credible . . . .”

Lacourse contends that the ALJ ignored pertinent evidence

and “failed to fairly consider all of the evidence in the entire

record” when assessing her credibility. See Plaintiff’s Mem.

(document no. 7-1) at 15. In doing so, Lacourse raises four

arguments, none of which prevail.

Lacourse first faults the ALJ for failing to address her

work history. See

(c)(3); see also Schaal

v. Apfel,

(2d Cir. 1998). In his credibility

analysis, the ALJ did note that she had previously worked full

time, see Admin. R. at 31 (Lacourse “was able to work full-time

previously,” despite her fibromyalgia diagnosis), and that she

considered part-time work, id. at 31-32 (Lacourse was

“interested in working part time in the schools” and reported

“that she would like to teach again in some capacity.”). In

light of this, and the fact that Lacourse does not explain how a

more detailed analysis of Lacourse’s work history and attempts

to find part-time and other work would alter the ALJ’s

credibility analysis, the court rejects this argument.

Lacourse further disputes the ALJ’s characterization of her

activities of daily living and, specifically, that they

12 reflected “an active, robust lifestyle.” Admin. R. at 32. The

ALJ observed that Lacourse reported that she walks regularly for

exercise, hikes, enjoys reading, drawing, and painting, drives,

shops, performs household chores, maintains a positive

relationship with her family members, and independently runs

errands and attends appointments. Admin. R. at 32. To the

extent the Lacourse, to counter that conclusion, cites record

evidence that casts doubt on her ability to perform daily

activities, such conflicting evidence is for the ALJ to resolve.

Seavey v. Barnhart,

(1st Cir. 2001). And the

ALJ, resolving those conflicts, may draw negative conclusions

about the claimant’s credibility. Mason v. Astrue,

; see also St. Pierre v. Shalala, No. 94-232,

, at *3 (D.N.H. May 25, 1995) (“When evaluating the

subjective claims of pain it is proper and, indeed, required

that the ALJ consider daily activities such as driving, walking

and household chores. This allows the Secretary to juxtapose

the claimant’s subjective allegations of pain with the relative

intensity of [her] daily regimen.”) (internal citations

omitted). Insofar as the ALJ supported his conclusion with

rather thorough citations to a not insignificant record, see

Irlanda Ortiz,

, the court concludes that the ALJ

did not err in his analysis of Lacourse’s activities of daily

living.

13 Next, Lacourse highlights record evidence documenting her

“chronic symptoms” and the fact that physical activity

aggravated those symptoms. See Plaintiff’s Mem. (document no.

7-1) at 17-20. Presumably, though Lacourse does not argue as

much explicitly, she believes that this evidence compels more

sympathetic conclusion as to Lacourse’s credibility. However,

as the Acting Commissioner observes, the ALJ supported his

credibility determination with extensive citations to record

evidence suggesting that Lacourse’s subjective allegations of

pain ran inconsistent with the results of a variety of tests,

the conclusions of several medical providers, and even her own

reports during treatment. See Admin. R. at 30-32. Accordingly,

because the ALJ’s decision “contains specific, clear reasons for

his credibility determination that are supported by record

evidence,” Perry v. Colvin,

, the court finds no

error on these grounds.

Finally, Lacourse objects to the ALJ’s credibility

assessment because three “statements made in the ALJ’s decision

that . . . could be viewed to impact negatively on the

credibility of the plaintiff’s subjective complaints.”

Plaintiff’s Mem. (document no. 7-1) at 20. Presumably, though

she does not say as much, Lacourse intends to suggest that the

statements were either incorrect or that the ALJ erred in

14 considering the evidence discussed in those statement. As best

the court can make them out, none of these arguments succeeds.

To the extent that Lacourse argues that the ALJ incorrectly

relied on the normality of Lacourse’s neurological testing and

clinical exams with respect to her complaints of fibromyalgia-

related pain, see Plaintiff’s Mem. (document no. 7-1) at 20),

the ALJ did not run afoul of Johnson v. Astrue,

(1st Cir. 2009).3 Here, the ALJ concluded not that Lacourse

did not suffer from the symptoms of fibromyalgia; but rather

that her subjective complaints as to their intensity,

persistence, and limiting effects were not entirely credible.

See Admin. R. at 30. Nor did he base that conclusion solely on

the fact that her neurological testing and clinical exams. He

also supported it with citations to record evidence

demonstrating that Lacourse was able to work full-time “for many

years” after she was diagnosed with fibromyalgia, that her

3 As the Court of Appeals for the First Circuit has noted, there is often little “objective” medical evidence of fibromyalgia and, as such, ALJ errs when he “effectively . . . requir[es] objective evidence beyond the clinical findings necessary for a diagnosis of fibromyalgia under established medical guidelines.” Johnson,

(1st Cir. 2009) (quoting Green– Younger v. Barnhart,

(2d Cir. 2003)). Thus, “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.’”

15 treatment records did not support her allegation that the

condition worsened after a motor vehicle accident in 2011, and

that she had been “doing well” on Cymbalta. See Admin. R. at

31.

Plaintiff next appears to argue that the ALJ erred when he

“downplayed the severity of [her] pain because she was reluctant

to undergo an occipital nerve block.” See Plaintiff’s Mem.

(document no. 7-1) at 20. An ALJ may draw inferences about the

severity of a claimant’s symptoms when the claimant declines

treatment to address them. See Valley v. Barnhart,

. When doing so, the ALJ must “first consider[] any

explanations that the individual may provide, or other

information in the case record, that may explain” that decision.

SSR 96-7p,

, at *7. Here, the ALJ took into

account Lacourse’s reasoning -- that there was no guarantee a

nerve block would work. Admin. R. at 31.

Finally, the court finds no error vis-à-vis Lacourse’s

credibility in the ALJ’s statement that Lacourse’s “treating

provider believed that she did not need mental health counseling

. . . .” See Plaintiff’s Mem. (document no. 7-1) at 21. The

ALJ considered that opinion among, as discussed more thoroughly

supra, a variety of others, and crafted an RFC that accounted

for Lacourse’s severe mental health impairments. The court

16 accordingly finds no error in these three statements in the

ALJ’s decision.

IV. Conclusion

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

Lacourse is not disabled is supported by substantial evidence in

the record. Lacourse’s motion to reverse the SSA’s decision4 is

DENIED and the Acting Commissioner’s motion to affirm5 is

GRANTED. The clerk shall enter judgment accordingly and close

the case.

SO ORDERED.

/s/Joseph N. Laplante Joseph N. Laplante United States District Judge

Dated: August 17, 2016

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

4 Document no. 7. 5 Document no. 8.

17