UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kimberly Tann

v. Civil No. 16-cv-449-JD Opinion No.

Nancy A. Berryhill, Acting Commissioner of Social Security

O R D E R

Kimberly Tann seeks judicial review, pursuant to

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

Security, denying her application for disability insurance

benefits under Title II and Title XVI of the Social Security

Act,

and § 1382. Tann contends that the

Administrative Law Judge (“ALJ”) erred in assessing the record

evidence. The Acting Commissioner moves to affirm. Tann filed

a response to the Acting Commissioner’s motion.

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); see also Fischer v. Colvin,

(1st Cir. 2016). “Substantial evidence is more than a mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Castillo

Condo. Ass’n v. U.S. Dep’t of Housing & Urban Dev.,

(1st Cir. 2016) (internal quotation marks omitted).

“[S]ubstantial evidence does not mean either uncontradicted

evidence or overwhelming evidence” but instead can be satisfied

“even if the record arguably could justify a different

conclusion.”

(internal quotation marks omitted).

Background

Tann applied for disability insurance benefits and

supplemental security income on October 29, 2013, alleging that

she had been disabled since April 20, 2012, due to chronic

migraines, fibromyalgia, depression, anxiety, herniated disc,

acid reflux, and insomnia. After her applications were denied,

Tann amended her onset date to August 27, 2013, when she was

twenty-six years old. She previously worked as an assembler,

cleaner, as a personal care service provider, and in

maintenance.

2 Tann’s medical records pertinent to her onset date begin on

August 14, 2013. At that appointment, Dr. George W. Lovett, a

dermatologist, noted that Tann was in no distress, was alert and

oriented, and had appropriate mood and affect. Dr. Lovett also

noted edema in Tann’s lower legs and that she was obese. A week

later, Tann had injections in her cervical spine.

Dr. Natacha Sochat completed a physical residual functional

capacity assessment on January 14, 2014. Dr. Sochat found that

Tann could occasionally lift and carry up to twenty pounds,

frequently lift and carry up to ten pounds, and sit and stand or

walk for six hours in an eight hour day. Tann could

occasionally do postural activities such as climbing, balancing,

stooping, crouching, kneeling, and crawling.

At the end of January, 2014, Dr. Sharon Ferguson noted

that Tann’s anxiety and depression were controlled with

medication and her depression had improved. Dr. Ferguson urged

Tann to restart counseling. Dr. Ferguson found that Tann was

not in acute distress, did not have edema, had appropriate

affect, and did not appear to be anxious or depressed.

On February 12, 2014, Sherie Friedrich, Psy.D., examined

Tann to evaluate her psychological condition. Dr. Friedrich

made observations about Tann’s appearance and affect and

recorded Tann’s reports about her feelings and daily activities.

3 Tann was alert and oriented during the examination. Dr.

Friedrich noted Tann’s report that she was unable to adequately

complete chores when she was experiencing a lot of pain. In a

work setting, however, Tann could interact appropriately,

understand work procedures, follow simple instructions, maintain

concentration and complete tasks, tolerate stress that is common

in a workplace, and make simple decisions. Dr. Friedrich also

stated that Tann would benefit from psychotherapy to address her

“maladaptive behaviors.”

On March 4, 2014, Patricia Salt, Ph.D., a state agency

psychologist, completed a Psychiatric Review Technique based on

a review of Tann’s records. Dr. Salt concluded that Tann did

not have a severe mental impairment.

Tann was seen on June 5, 2014, for a follow up on her

chronic headaches by Nurse Finley-Bruno. The treatment notes

include Tann’s reported symptoms of her headaches, which were

moderate but could become severe with pressure and pounding that

caused nausea. Tann further reported that she would need to lie

down in a dark room when experiencing a severe headache and that

the headache could last up to forty-eight hours.

Tann explained that she had stopped taking her migraine

headache medicine when she discovered that she was pregnant and

had been having headaches for two months. She also said that

4 she had broken up with her boyfriend because of disputes over

custody of their son and his abusive behavior, which caused her

to have stress. Despite having a headache during the

examination with pain at the level of 6 out of 10, the provider

reported that Tann was in no acute distress and that her head

and neck range of motion was normal. Tann stated that triggers

for her headaches were stress, chemical smells, fluorescent

lights, and heavy perfume.

Tann reported headaches on September 29, 2014, with a pain

level of 6.5 out of 10. On January 20, 2015, Tann saw Nurse

Finley-Bruno and reported a headache pain level of seven out of

ten. Finley-Bruno, however, found that Tann was not in acute

distress, her mood and affect were normal, she was alert and

oriented, and was not ataxic.1 Nurse Finley-Bruno indicated that

Tann intended to take her headache medication again post-

pregnancy. At an appointment on March 11, 2015, Tann again

reported a headache pain level of 7 out of 10, but Nurse Finley-

Bruno noted that Tann was in no acute distress, her mood and

affect were normal, she was alert and oriented, and she was not

ataxic.

On April 3, 2015, Dr. Ferguson increased Tann’s medication

to better control her anxiety and depression. He also

1 Ataxia refers to a lack of motor control or coordination.

5 recommended that she increase exercise. Tann was in no acute

distress and all of Dr. Ferguson’s observations provided normal

results. Nurse Finley-Bruno also found normal results on June

18, 2015, despite Tann’s report of daily stress and headaches

and a pain rating of 7 out of 10. Tann was given a shot in her

cervical spine and continued on her other mediations.

Dr. Thomas Ward completed a Headache Residual Functional

Capacity Questionnaire on September 15, 2015. Dr. Ward stated

that he had treated Tann intermittently since December 31, 2012,

and noted that she had had chronic and constant migraine

headaches. He wrote that Tann’s headaches were

“mild/moderate/to severe pressure/pounding/sharp with

nausea/vomiting and light/sound sensitivity.” He wrote that

triggers were bright light, stress, moving around, and noise.

Dr. Ward said that Tann had a good response with Botox

treatment but still had daily headaches that would preclude even

basic work activities. He also said that she would need daily

unscheduled breaks from work because of headaches and thought

she would miss more than four days of work each month when she

was completely disabled due to headaches.

A hearing was held before an ALJ on September 22, 2015.

Tann was twenty-nine years old at the time of the hearing. She

was living with her mother and her two children.

6 Tann testified about her physical ailments and treatment

for fibromyalgia, a herniated disk in her lower back, and

headaches. She also testified that she had been seeing a

therapist for depression and anxiety and was taking medication

that controlled her mental impairments. Tann also described her

daily activities and the effects of her headaches.

A vocational expert, Ralph Richardson, also testified at

the hearing. Based on the hypothetical presented, Richardson

responded that Tann could not do any of her previous work but

would be able to do sedentary jobs, such as bench worker,

general office clerk, and order clerk. With additional

limitations, including increased absences, Richardson found no

work that Tann could do.

The ALJ issued a decision on October 5, 2015, denying

Tann’s applications. The ALJ found that Tann had severe

impairments due to migraines, degenerative disc disease, and

fibromyalgia. The ALJ also found that despite her impairments

Tann had the residual functional capacity to do light work with

a restriction on standing and walking and only occasional

postural activities. The ALJ also found that Tann would need to

avoid perfume, odors, bright lights and would need a low stress

environment, meaning that there would be little change in the

work setting and no need to exercise judgment. Based on that

7 assessment, the ALJ found that jobs existed in the national

economy that Tann could do. The Appeals Council denied her

request for review, making the ALJ’s decision the decision of

the Acting Commissioner.

Discussion

Tann moves to reverse the Acting Commissioner’s decision,

arguing that the ALJ erred in failing to make findings about her

ability to handle stress, improperly weighed the medical

evidence, and erred in not finding a severe impairment due to

obesity. The Acting Commissioner moves to affirm. Tann filed a

response to the Acting Commissioner’s motion.

In determining whether a claimant is disabled, the ALJ

follows a five-step sequential analysis.

The claimant bears the burden through the first four steps of

proving that her impairments preclude her from working.3 Freeman

v. Barnhart,

(1st Cir. 2001). At the fifth

2 Because the pertinent regulations governing disability insurance benefits at 20 C.F.R. Part 404 are the same as the pertinent regulations governing supplemental security income at 20 C.F.R. Part 416, the court will cite only Part 404 regulations. See Reagan v. Sec’y of Health & Human Servs.,

(1st Cir. 1989).

3 The first four steps are (1) determining whether the claimant is engaged in substantial gainful activity; (2) determining whether she has a severe impairment; (3) determining whether the impairment meets or equals a listed impairment; and (4) assessing the claimant’s residual functional capacity and her ability to do past relevant work.

(a).

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

jobs exist which the claimant can do. Heggarty v. Sullivan,

(1st Cir. 1991).

A. Ability to Handle Stress

Tann contends that the ALJ erred by failing to question her

at the hearing about her ability to handle stress and about

whether her past work was stressful. She also contends that the

ALJ erred in failing to make findings about her ability to

handle stress. Tann argues that ALJs are required to be

thorough and individualized in assessing stress and that the ALJ

in her case did not meet that standard.

In support, Tann relies on Titles II and XVI: Capability

to Do Other Work—The Medical—Vocational Rules as a Framework for

Evaluating Solely Nonexertional Impairments, Social Security

Ruling (“SSR”) 85-15,

(January 1, 1985); and

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

(1st

Cir. 1986). In Lancellotta, the First Circuit considered a

claimant with a severe mental impairment and the ALJ’s finding

that although the claimant could not perform his past work he

could perform other “low stress” jobs.

. The court

held that substantial evidence did not support the ALJ’s finding

because the ALJ failed to explain why the claimant could do the

identified jobs despite the low stress limitation.

The

9 court noted “that stress is not a characteristic of a job, but

instead reflects an individual’s subjective responses to a

particular situation” and that there was no basis for the ALJ’s

finding that the claimant could do low stress work.

In contrast, here the ALJ found that Tann had severe

physical impairments. To the extent Tann contends that the ALJ

was required to develop the record to show that stress or her

reaction to stress was a severe mental impairment, she is

mistaken. Tann bore the burden of showing through objective

medical evidence that she had a medically determinably mental

impairment that significantly limited her ability to work. See

Gardiner v. Colvin,

, at *8 (D.R.I. Oct. 27,

2015); Rascoe v. Comm’r of Social Security,

(D. Mass. 2015). Tann does not argue that the ALJ’s Step

Two findings were wrong in that regard.

The ALJ found that Tann was unable to do her past work

because of physical limitations, including migraine headaches

that could be triggered by stress. Unlike the situation in

Lancellotta, however, here the ALJ explained what he intended as

low stress work. Tann has not shown that the ALJ’s limitation

was insufficient to address that issue. Therefore, the ALJ’s

explanation satisfies the need for considering a claimant’s

individual needs under Lancellotta. See Degraffenreid v.

10 Colvin,

, at *8 (D. Mass. Sept. 20, 2016); Poulin

v. Colvin,

, at *2-*3 (D. Me. Jan. 18, 2015).

B. Medical Opinion Evidence

Tann contends that the ALJ erred in giving little weight to

Dr. Ward’s opinions about the nature and effects of her migraine

headaches. She also contends that the ALJ erred in giving no

weight to the functional capacity assessment done by “OT Saun.”

The Acting Commissioner argues that the ALJ properly assessed

Dr. Ward’s opinion and asserts that the ALJ considered the

occupational therapist’s evaluation.

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). “[U]nder

the treating source rule, controlling weight will be given to a

treating physician’s opinion on the nature and severity of a

claimant’s impairments if the opinion is well-supported by

medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in the record.” Arrington v. Colvin, --- F. Supp. 3d -

11 --,

, at *16 (D. Mass. Nov. 3, 2016) (internal

quotation marks omitted). On the other hand, the ALJ may give

little weight to a treating source’s opinion if that opinion “is

inconsistent with other substantial evidence in the record,

including treatment notes and evaluations by examining and non-

examining physicians.” Glynn v. Colvin,

, at *2

(D. Mass. Feb. 6, 2017).

1. Dr. Ward’s Opinion

Dr. Ward recorded in his Headache Residual Functional

Capacity Questionnaire that Tann had daily constant headaches

with exacerbations that could last up to forty-eight hours. He

also indicated that the headaches were made better by Botox and

Verapamil. Dr. Ward believed that Tann could tolerate low

stress work, that she would require unscheduled breaks and

likely be absent more than four days each month, and that she

was completely disabled by headaches.

The ALJ considered Dr. Ward’s opinion but decided to give

it little weight.4 The ALJ noted that Dr. Ward indicated Tann

had exacerbations of her headaches but he did not indicate how

often the exacerbations would occur. The ALJ also noted that

Dr. Ward’s opinion was contradicted by Tann’s testimony that she

4 In parts of his decision, the ALJ misidentified Dr. Ward as Dr. Warden.

12 had headaches with a pain level of five out of ten and was able

to function normally and by Dr. Ward’s treatment notes showing

that medication helped Tann’s headaches. The ALJ also found

that Dr. Ward’s opinion about Tann’s likely absences was not

supported by the record and that Tann’s activity level also did

not support that level of severity and frequency of headaches.

Dr. Ward’s treatment notes for Tann begin on December 31,

2012.5 Dr. Ward reported Tann’s description of her headaches,

their history, and her symptoms.6 On examination, Dr. Ward found

no abnormalities. He changed her medication and recommended a

book, “Conquering Headaches.”7 Tann’s subsequent medical records

show that although she reported headache pain at a level up to

seven out of ten at various medical appointments, she was able

5 Although Tann cites the earlier records in support of her motion to reverse, the joint factual statements begins with medical records in August of 2013.

6 Statements in a medical record that merely repeat a claimant’s subjective complaints are not medical opinions because the notes are not “‘statements . . . that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, and what you can still do despite impairment(s), and your physical or mental restrictions.’” Hesson v. Colvin,

, at *4 (D. Me. Sept. 29, 2015) (quoting

(a)(2)).

7 The only cited objective medical test result in the record is an MRI done in April of 2012, which apparently did not show any related abnormality. Although Tann also had a lumbar spinal puncture to assess intracranial pressure done in 2013, Tann cites no records or opinions to show those results.

13 to function normally, appeared to be in no acute distress, and

had normal results on neurological examination.

The medical records also show that Tann was able to take

care of her son, visit her boyfriend, do grocery shopping, pay

bills, do household chores, prepare food, and attend medical

appointments despite her headaches. Although Tann testified

that her daily activities were limited when she was in pain

above a level of five out of ten, the ALJ found that she was not

entirely credible as to the severity, intensity, and limiting

effects of her headaches. Tann has not challenged the ALJ’s

credibility determination.

2. The Occupational Therapist’s Evaluation

Tann contends that the ALJ erred in failing to accord any

weight to the opinion of “OT Saun,” meaning the evaluation done

by Occupational Therapist Joan Van Saun.8 The parties’ joint

statement of material facts, which must include “all facts

pertinent to the decision of the case and all significant

procedural developments,” does not mention Van Saun’s

8 In support, Tann cites Titles II and XVII: Considering the opinions and Other Evidence from Sources Who Are Not “Acceptable Medical Sources” in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies, SSR 06-3p,

(Aug. 9, 2006), which explains the requirement that an ALJ must consider evidence from all sources. Contrary to Tann’s theory, however, there is no requirement that the ALJ must always assign a particular weight to that evidence.

14 evaluation. LR. 9.1(c). As such, Tann may have waived any

issue pertaining to that evaluation. See Lawton v. Astrue,

, at *9 (D.N.H. July 24, 2012).

In any case, the ALJ considered Van Saun’s evaluation,

which was done in February of 2013. The ALJ noted the

functional evaluation and Tann’s report about her headache pain

and medication. The ALJ also noted that Tann told the

occupational therapist that she was unable to find work in her

area and that transportation was a problem.

Van Saun found that Tann was able to do postural activities

such as squatting and kneeling, without difficulty. She could

lift and carry up to twenty-five pounds occasionally, and she

could lift and carry up to fifteen pounds frequently. Her push

and pull strength was fairly strong. Tann could sit for up to

an hour, stand for up to a half-hour, and walk for up to an hour

at a time. Van Saun determined that physically Tann was capable

of working full time at an exertional level of up to light

physical demand.

The ALJ’s residual functional capacity finding generally

follows Van Saun’s assessment. Tann argues, nevertheless, that

the ALJ erred in failing to incorporate two of Van Saun’s

limitations into the residual functional capacity.

Specifically, Tann cites Van Saun’s recommendations that bending

15 would increase her back pain and put her at risk of injury and

that she would do best if she could change positions, “optimally

stand and walk for 5-10 minutes per one hour of sitting.”

The differences cited by Tann are minimal. Van Saun found

that Tann could squat, kneel, and half kneel without limitation.

The ALJ found that Tann could do those activities only

occasionally. Although the ALJ did not mention bending

specifically, the other postural limitations limit such

activities to only occasionally, which is consonant with Van

Saun’s recommendations.

The ALJ added a restriction that Tann must have the

opportunity to stand for five minutes each hour. Van Saun’s

recommendation for a standing option to last five to ten minutes

was for the optimal situation, not a requirement. Therefore,

the ALJ’s restriction is well within the limits set by Van Saun.

C. Obesity

Tann contends that the ALJ erred in failing to assess the

effects of her obesity at Step Two, as required by Titles II and

XVI: Evaluation of Obesity, SSR 02-1p,

(Sept.

12, 2002). She argues that because obesity can compound the

effect of other impairments, the ALJ should have considered the

effect of obesity on her migraine headaches, degenerative disc

disease, and fibromyalgia. She further asserts that the ALJ had

16 the duty to develop the record to show that she was disabled by

the effect of obesity on her other impairments.

Tann is mistaken. At Step Two, the claimant bears the

burden of providing evidence of a medically determinable severe

impairment or severe combination of impairments. Bowen v.

Yuckert,

, 146 & 149 (1987). While an ALJ has a

responsibility to fill gaps in a claimant’s medical records when

the record presented is inadequate, Heggarty v. Sullivan,

(1st Cir. 1991), Tann has not shown that any gaps

existed in her records. In addition, Tann was represented by

counsel through the administrative process and on judicial

review.

The ALJ found that migraines, degenerative disc disease,

and fibromyalgia were severe impairments and considered the

effects of those impairments on Tann’s ability to function.

Tann provides no evidence that her obesity compounded those

impairments or that other evidence existed that would show that

to be the case.9 Therefore, Tann has not shown that the ALJ had

a responsibility to develop the record as to what, if any,

effect her obesity might have had on her other impairments.

9 The treatment records, evaluations, and opinions in the record acknowledge Tann’s weight and height. In addition, Van Saun assessed Tann’s functional capacity in light of her obesity.

17 Substantial evidence supports the Acting Commissioner’s

decision, which is affirmed.

Conclusion

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

(document no. 8) is denied. The Acting Commissioner’s motion to

affirm (document no. 9) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

April 10, 2017

cc: Penelope E. Groneck, Esq. Terry L. Ollila, Esq.

18