UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christine Floyd

v. Civil No. 15-cv-456-PB Opinion No.

US Social Security Administration, Acting Commissioner, Nancy A. Berryhill

MEMORANDUM AND ORDER

Christine Floyd is a forty-three-year-old woman who has

previously worked at a restaurant and a warehouse. Floyd

challenges the Social Security Administration’s denial of her

claim for supplemental security income (“SSI”).

I. BACKGROUND

In accordance with Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts (Doc. No. 17).

Because that joint statement is part of the court’s record, I do

not recount it here. Instead, I discuss facts relevant to the

disposition of this matter as necessary below.

II. STANDARD OF REVIEW

Pursuant to

(g), I have the authority to

review the administrative record and the pleadings submitted by

the parties, and to enter judgment affirming, modifying, or

1 reversing the final decision of the Commissioner. That review

is limited, however, “to determining whether the [Administrative

Law Judge] used the proper legal standards and found facts

[based] upon the proper quantum of evidence.” Ward v. Comm’r of

Soc. Sec.,

(1st Cir. 2000). I defer to the

Administrative Law Judge’s (ALJ’s) findings of fact, so long as

those findings are supported by substantial evidence.

Substantial evidence exists “if a reasonable mind, reviewing the

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

to support his conclusion.” Irlanda Ortiz v. Sec’y of Health &

Human Servs.,

(1st Cir. 1991) (per curiam)

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

(1st Cir. 1981)).

If the substantial evidence standard is met, the ALJ’s

factual findings are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. Findings

are not conclusive, however, if the ALJ derived his findings by

“ignoring evidence, misapplying the law, or judging matters

entrusted to experts.” Nguyen v. Chater,

(1st

Cir. 1999) (per curiam). The ALJ is responsible for determining

issues of credibility and for drawing inferences from evidence

in the record. Irlanda Ortiz,

. It is the role

of the ALJ, not the court, to resolve conflicts in the evidence.

2 III. ANALYSIS

Floyd submitted an application for SSI in April 2012,

alleging an onset date of July 2008. The ALJ subsequently held

three hearings. At the first hearing, in October 2013, Floyd

appeared alone, and the ALJ postponed the hearing to give Floyd

an opportunity to obtain counsel. In March 2014, Floyd failed

to appear at the second hearing, though Floyd’s counsel and a

vocational expert did attend. The expert testified at the

hearing, answering questions from both the ALJ and Floyd’s

counsel. Floyd and her roommate Yuwana Mitchell eventually

testified at a hearing held in July 2014. In a decision dated

August 12, 2014, the ALJ determined that Floyd was not disabled.

In reaching his decision, the ALJ employed the five-step

sequential analysis outlined in

(a). At step

one, the ALJ concluded that Floyd had not engaged in substantial

gainful activity since applying for SSI in April 2012. In his

step two analysis, the ALJ considered Floyd’s impairments and

found that several were severe: left foot osteoarthritis,

affective disorder, and anxiety disorder. The ALJ next decided

at step three that Floyd’s impairments, whether considered

individually or in combination, did not meet or medically equal

any listed impairment. After formulating Floyd’s residual

functional capacity (“RFC”) and recognizing at step four that

Floyd had no past relevant work, the ALJ advanced to step five.

3 There, the ALJ found that Floyd could perform a significant

number of jobs in the national economy. This finding yielded

the conclusion that Floyd was not disabled.

In August 2015, the Appeals Council denied Floyd’s request

for review of the ALJ’s decision. The ALJ’s decision now

constitutes the final decision of the Acting Commissioner and is

ripe for review.

Floyd develops two principal arguments for reversing the

ALJ’s decision: (1) the ALJ erred in calculating her RFC; and

(2) the ALJ erred in finding that her spinal condition did not

meet or medically equal a listed impairment.

A. RFC Arguments

A claimant’s RFC is “the most [the claimant] can still do

despite [her] limitations.”

(a)(1). The

ALJ found that Floyd could perform light work,1 “except that she

is limited to simple, repetitive unskilled tasks.” Tr. at 34.

On appeal, I determine whether the assigned RFC is free of legal

error and supported by substantial evidence. See Nguyen,

.

1 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. 416.967(b). 4 1. Evaluation of Opinion Evidence

Floyd challenges the weight assigned to the opinion of

state agency reviewing psychologist Laura Landerman, Ph.D. See

Doc. No. 12-1 at 9. Dr. Landerman prepared an assessment of

Floyd’s mental RFC in August 2012. Tr. at 88–89. She opined

that Floyd had a moderate limitation on her “ability to perform

activities within a schedule, maintain regular attendance, and

be punctual within customary tolerances.” Tr. at 89. Despite

the moderate limitation, Dr. Landerman ultimately concluded that

Floyd was still “able to maintain a schedule and attendance

with[in] customary tolerances.” Tr. at 89. In all other

functional areas Floyd either had no limitation or insignificant

limitation. See Tr. at 88–89.

In preparing her assessment, Dr. Landerman relied on the

August 2012 opinion of examining psychologist Juliana Read,

Ph.D. See Tr. at 89. Dr. Read reviewed Floyd’s medical records

and met with Floyd for fifty-five minutes, discussing the

history of Floyd’s mental illness and Floyd’s daily activities.

See Tr. at 402–05. Dr. Read also performed a mental status

examination, which yielded largely unremarkable results: Floyd’s

behavior and content of thought were within normal limits, her

speech was regular, her affect was congruent with her stable

mood, and her sensory functions were intact. See Tr. at 403.

Although Dr. Read diagnosed Floyd, in pertinent part, with

5 obsessive compulsive disorder and bipolar disorder, she noted

only one area of functional limitation. See Tr. at 404–05.

Floyd could not “maintain a consistent schedule due to

interference associated with her [obsessive compulsive disorder]

and bipolar disorder.” Tr. at 405.

Dr. Landerman recognized that she and Dr. Read diverged on

Floyd’s ability to maintain a schedule. See Tr. at 89. Dr.

Landerman explained that Dr. Read’s limitation “is not fully

supported in [the] available [medical evidence], including

[Floyd’s] self report.” Tr. at 89. She added that Floyd’s

“statements are partially credible as she did not present nor

perform [during Dr. Read’s examination] as per self

report/allegations.” Tr. at 89.

The ALJ assigned “great weight” to Dr. Landerman’s

assessment because it was “consistent even with the most recent

medical evidence” and with Floyd’s “significant daily

activities.” Tr. at 38. On the other hand, the ALJ explicitly

gave no weight to Dr. Read’s limitation on maintaining a

schedule and provided several reasons for doing so. Tr. at 36.

Floyd argues that Dr. Read’s limitation is supported by the

medical evidence, even though Dr. Landerman claimed it was not.

See Doc. No. 12-1 at 9. My role, however, is to determine

whether substantial evidence supports the ALJ’s decision, not

whether the record could support an alternative conclusion. See

6 Rodriguez Pagan v. Sec’y of Health & Human Servs.,

(1st Cir. 1987). I find the ALJ’s decision to rely on Dr.

Landerman’s assessment, in particular her opinion that Floyd

could maintain a schedule, to be supported by substantial

evidence.2

In formulating the RFC, the ALJ must consider and evaluate

every medical source opinion in the record. See

(b)–(c) (2014) (amended 2017); SSR 96-8P, at *7 (July 2,

1996). To determine what weight to give an opinion, the ALJ

takes into account a number of factors, including: (1) the

nature and extent of the source’s relationship with the

claimant; (2) the source’s explanation of his or her opinion;

(3) the consistency of the opinion with the record; (4) the

source’s specialization; and (5) any other relevant factors.

See § 416.927(c). In the decision, the ALJ must provide an

explanation for his or her evaluation of each opinion. See §

416.927(e)(2)(ii); see also SSR 96-8P, at *7 (“If the RFC

assessment conflicts with an opinion from a medical source, the

adjudicator must explain why the opinion was not adopted.”).

In the present case, I conclude that the ALJ supportably

2 To the extent Floyd generally attacks the RFC found by the ALJ as not supported by substantial evidence, I conclude that Dr. Landerman’s opinion, reasonably corroborated by the medical evidence and Floyd’s daily activities, provides substantial support for the RFC. 7 gave great weight to the opinion of Dr. Landerman. The ALJ

first stated that Dr. Landerman’s opinion was “consistent even

with the most recent medical evidence.” Tr. at 38; §

416.927(c)(4) (identifying consistency as a relevant factor).

Substantial evidence cited earlier in the decision supports that

assertion. See Young v. Astrue,

, 35 & n.27 (where

ALJ credited opinion because it was supported by record, but

cited no specific, corroborative evidence, court looked to

evidence ALJ discussed earlier in opinion). Prior to evaluating

Dr. Landerman’s opinion, the ALJ discussed Floyd’s 2012

treatment notes from the Mental Health Center of Greater

Manchester. See Tr. at 36. The ALJ supportably determined that

Floyd presented as “essentially normal” during mental status

examinations and received Global Assessment of Function (“GAF”)

scores between fifty-two and sixty.3 Tr. at 36; see Tr. at 460,

3 The Fifth Edition of the Diagnostic & Statistical Manual of Mental Disorders, published in 2013, does not employ GAF scores. See Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 16 (5th ed. 2013). As described in the Fourth Edition, GAF scores range from zero to one hundred, and an individual’s score is the “single value that best reflects the individual’s overall level of functioning.” Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 32, 34 (4th ed. Text Revision 2000). GAF scores only reflect an individual’s “psychological, social, and occupational functioning” and “may be particularly useful in tracking the clinical progress of individuals in global terms.” Id. at 32. Scores between fifty-one and sixty correspond to “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, 8 467–70. The ALJ also noted largely normal mental status

examinations in January and February of 2013. See Tr. at 36–37,

416, 419–20. Floyd again exhibited supportably normal mental

function on two occasions in 2014, as cited in the ALJ’s

decision. See Tr. at 37, 558, 575, 582. Upon re-establishing

mental health care in April 2014, Floyd “report[ed] feeling

depressed for the last 3 months with worsening over the past 1

month,” Tr. at 582, but, as the ALJ emphasized in his decision,

Floyd had run out of her medication two months before re-

establishing care. See Tr. at 37, 582. Although the record

contains medical evidence that may support a contrary

conclusion, the ALJ cited to sufficient evidence to reasonably

support his decision to credit Dr. Landerman’s opinion on

consistency grounds.

The ALJ also credited Dr. Landerman’s opinion because it

was consistent with Floyd’s “significant daily activities.” Tr.

at 38. To ascertain Floyd’s daily activities, the ALJ drew

primarily on Floyd’s 2014 hearing testimony and a June 2012 form

completed by Floyd’s sister. See Tr. at 34–35, 38. Floyd

testified that she wakes early, does dishes, cleans, takes care

conflicts with peers or co-workers).” Id. at 34 (emphasis in original omitted). For context, scores between fifty and forty- one correspond to “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Id. (emphasis added). 9 of her children, and cooks. Tr. at 34, 49. Floyd’s sister, who

as of June 2012 spent “every weekend” with Floyd, reported that

Floyd helps her children with homework and prepares meals daily.

She also noted that Floyd reads, does word puzzles, goes

shopping, and talks on the telephone. Tr. at 214–18. Moreover,

the ALJ reasonably concluded that Floyd’s sister did not

identify any “rituals or significant obsessive behaviors” that

Floyd engaged in. Tr. at 38. Though I am mindful that some of

Floyd’s daily activities can be viewed as manifestations or

objects of Floyd’s obsessive compulsive disorder, her daily

activities as a whole reasonably support Dr. Landerman’s

opinion, in particular her conclusion that Floyd could maintain

a schedule. Accordingly, the ALJ cited to substantial evidence

to justify his reliance on Dr. Landerman’s opinion. See Silvia

v. Colvin, Civil Action No. 13-11681-DJC,

, at *8

(D. Mass. Sept. 22, 2014) (finding no error where ALJ gave great

weight to opinions consistent with the record); Rankin v.

Colvin,

, 90–91 (D.R.I. 2014) (finding no error

where ALJ gave weight to an opinion that was supportably

consistent with record); Allard v. Colvin, No. 13-CV-82-JL,

, at *6 (D.N.H. Feb. 21, 2014).4

4 Although the ALJ provided adequate reasons for crediting Dr. Landerman’s assessment, the Acting Commissioner essentially concedes that he did not explicitly provide adequate reasons for discounting Dr. Read’s limitation on maintaining a schedule. 10 2. Consideration of Obsessive Compulsive Disorder

Floyd also argues that the ALJ erred by failing to consider

her obsessive compulsive disorder, in combination with her other

impairments, throughout the decision. See Doc. No. 12-1 at 16–

17. Floyd grounds her argument in the ALJ’s credibility

discussion. There, the ALJ concluded that Floyd had not

mentioned her need to “follow obsessive rituals for extended

periods of time” to any medical source. Tr. at 38. The ALJ

also stated that Floyd’s medical records from her incarceration

do not describe “such symptoms,” citing to a treatment note from

that period. Tr. at 38. Floyd contends that the ALJ’s

statements betray a basic misunderstanding of the record. In

the 2008 treatment note the ALJ cites, Floyd presented with

racing thoughts and an inability to sit still and reported

scrubbing the floor of her cell with a toothbrush. See Doc. No.

12-1 at 15–17. Floyd further cites to other reports of

See Doc. No. 16-1 at 7–8 & n.4. Any error in the ALJ’s analysis of Dr. Read’s opinion, however, is harmless in this context. Dr. Landerman’s opinion provides substantial evidence to support the ALJ’s RFC. See Robinson v. Astrue, Civil No. 09-629-B-W,

, at *2—3 (D. Me. Oct. 27, 2010) (finding harmless error where ALJ failed to address a limitation in a treating source’s opinion, but two reviewing physicians did not adopt limitation and stated treating physician’s opinion was unsupported), aff’d, No. 1:09-CV-00629-JAW,

(D. Me. Dec. 3, 2010); Alva v. Astrue, No. CV 08-01827-VBK,

, at *5–6 (C.D. Cal. Sept. 15, 2009) (where ALJ failed to address a conflicting treating-physician opinion, but considered the medical evidence and arrived at an RFC supported by other opinion evidence, failure to address was harmless). 11 obsessive-compulsive behavior in the record. See, e.g., id. at

11. The Acting Commissioner maintains that the ALJ adequately

considered Floyd’s obsessive compulsive disorder, even though he

incorrectly characterized the record on the occasions noted

above. See Doc. No. 16-1 at 10–11.

In crafting an RFC, the ALJ “must consider limitations and

restrictions imposed by all of an individual’s impairments, even

those that are not ‘severe.’” McDonough v. U.S. Soc. Sec.

Admin., Acting Com’r,

(quoting Stephenson v.

Halter,

, 5)). Not only must the ALJ consider all

impairments, but he or she must consider those impairments in

combination. Lavoie v. Colvin,

(citing McDonald

v. Sec’y Health & Human Servs.,

(1st Cir.

1986)). Within these bounds, the ALJ retains “considerable

latitude” in how he or she considers non-severe impairments.

See Chabot v. U.S. Soc. Sec. Admin.,

. And an

ALJ may demonstrate adequate consideration of an impairment or

combination of impairments by citation to, or discussion of, the

relevant evidence, at least where the record does not otherwise

belie consideration. See

at 25–26; see also Duguay v.

Colvin,

, 3–4 (claimant’s failure-to-consider

argument refuted by multiple references to impairment in

decision); Lalime v. Astrue,

, 21–22 (ALJ’s multiple

references to impairment made it “clear that he considered that

12 condition when evaluating her claim”).

Assuming that the ALJ mischaracterized the record in the

instances described above, he still evinced adequate

consideration of Floyd’s obsessive compulsive disorder. In

formulating the RFC, the ALJ recounted Floyd’s hearing

testimony. Specifically, he noted Floyd’s claim that “[s]he is

not good at keeping a schedule,” “obsesses about appointments,”

and that “[i]f things are not in order, she has to do tasks over

again.” Tr. at 34–35. He also recognized Ms. Mitchell’s

testimony that Floyd has “a daily ritual of doing dishes” and

obsesses over unfinished tasks. See Tr. at 35. According to

Ms. Mitchell, Floyd’s rituals “take hours or a day” to complete.

See Tr. at 35. Last, in describing Dr. Read’s examination, the

ALJ mentioned Floyd’s report of obsessive compulsive disorder

and specific claims of “excessive planning and cleaning.” Tr.

at 36.

The symptoms discussed by the ALJ largely track the reports

to medical sources cited in Floyd’s brief. See, e.g., Tr. at

402 (Dr. Read’s opinion) (reports of “cleaning, washing and

organization compulsions”), 364–65 (intake notes) (reports of

“ritualistic patterns” and “repetitive behaviors,” including

rewashing dishes and refolding clothing), 362 (treatment note)

(reports of “compulsive behaviors”), 290 (treatment note)

(report of scrubbing cell floor with toothbrush). Given that

13 Floyd has not pointed to medical source evidence containing

reports of symptoms materially different from the symptoms

considered by the ALJ, I find no reversible error. Cf. Lord v.

Apfel,

(D.N.H. 2000) (supportable ALJ

determination not undermined by failure to address cumulative

evidence) (collecting cases).

3. Credibility Determination

Floyd charges that the ALJ failed to evaluate her alleged

symptoms in accordance with the relevant case law, regulations,

and rulings on credibility determinations. See Doc. No. 12-1 at

17–18. Floyd cites to, and quotes from, generally applicable

rules, but does not specify how the ALJ erred, nor does she

point to symptoms or evidence that the ALJ failed to consider.

See

at 17–19. Because I can only speculate as to the error

Floyd seeks to point out, she has waived any argument on

credibility. See United States v. Sevilla-Oyola,

,

13–14 (1st Cir. 2014).

Even if Floyd had adequately developed an argument, I would

find no reversible error. Where the objective medical evidence

in a record does not yield a decision favorable to the claimant,

an ALJ must “carefully” consider the claimant’s description of

her symptoms. See SSR 96-7p,

, at *3 (July 2,

1996) (superseded 2016). In considering a claimant’s subjective

complaints, the ALJ follows a two-step process. First, the ALJ

14 determines whether there is a medically determinable impairment

that could reasonably be expected to cause the claimant’s

symptoms. See id. at *2;

(b) (2014) (amended

2017). Second, after concluding that such an impairment exists,

the ALJ analyzes the “intensity, persistence, and limiting

effects of the individual’s symptoms” to establish her

functional limitations. See

; § 416.929(c).

At the second step, to the extent that the objective

medical evidence in the record does not substantiate the

claimant’s statements, the ALJ should evaluate the credibility

of the statements “based on a consideration of the entire case

record.” See

. In particular, the ALJ must

take into account a number of factors known, in this circuit, as

the Avery factors. See § 416.929(c)(3); Avery v. Sec’y of Health

& Human Servs.,

(1st Cir. 1986). There are a

number of such factors, including the claimant’s daily

activities, medications used, and other treatments or measures

used to relieve symptoms. See § 416.929(c)(3). Although an ALJ

must consider the Avery factors, he or she need not address each

one. See Phelps v. Astrue,

. Because the ALJ

“observed the claimant, evaluated [her] demeanor, and considered

how that testimony fit in with the rest of the evidence,” his

credibility determination “is entitled to deference, especially

when supported by specific findings.” See Frustaglia v. Sec’y

15 of Health & Human Servs.,

(1st Cir. 1987); see

also Beaune v. Colvin,

.

To start his credibility analysis, the ALJ recounted

Floyd’s and Ms. Mitchell’s hearing testimonies, specifically

noting the disruptions allegedly caused by (1) back pain, which

necessitated one-hour periods of rest throughout the day, and

(2) mental impairments, which produced, inter alia, time-

consuming obsessions. See Tr. at 34–35. He determined that the

objective medical evidence did not “fully support” Floyd’s

alleged limitations. Tr. at 35. Because Floyd did not

“establish a correlation” between the objective medical evidence

and her alleged limitations, her statements were not fully

credible.5 Tr. at 35.

I find that substantial evidence supports the ALJ’s

credibility determination.6 With respect to back pain, the ALJ

5 The ALJ recited the prescribed framework for making credibility determinations, but did not express his conclusion in those terms. See Tr. at 34–35. Because the ALJ discussed both objective medical evidence and other evidence in the record, I conclude he found that the objective medical evidence did not substantiate Floyd’s claims and proceeded to make a credibility determination on the record as a whole.

6 The parties appear to agree that the ALJ erred in concluding that Floyd had not reported a need to “follow obsessive rituals for extended periods of time” to any medical source, Tr. at 38, and that Floyd’s medical records from her incarceration do not describe “such symptoms,” Tr. at 38. See Doc. No. 12-1 at 15– 16; Doc. No. 16-1 at 10. Even excising those conclusions from the ALJ’s credibility analysis, the remaining analysis provides substantial evidence for his credibility determination. 16 cited to treatments notes in which Floyd presented as

supportably normal on physical examination. See Tr. at 36–37,

454 (tenderness in back and antalgic gait, but normal strength

and reflexes in lower extremities), 443 (tenderness and limited

range of motion in back, but normal gait, reflexes, and

strength), 408 (tenderness and pain with forward flexion and

back extension, but normal strength in lower extremities and

negative straight-leg raising), 415 (tenderness and limited

range of motion in back, but normal gait, reflexes, and strength

in extremities), 511 (normal gait and spine mobility, negative

straight-leg raising). The ALJ may take into account physical-

examination evidence when assessing credibility. See

; Dubois v. Astrue,

, 16–17; Sekula v.

Colvin,

, 12–13.

The ALJ also noted that Floyd had been encouraged in

January 2013 to attend physical therapy, lose weight, and

exercise, but there were no records of Floyd following through

on those recommendations. See Tr. at 36, 38, 422–23. The ALJ’s

conclusions as to physical therapy and exercise are supported,

see Tr. at 479 (Floyd claiming she stopped physical therapy

because of little relief and transportation issues), and

noncompliance with treatment is a valid consideration in making

a credibility determination, see Dubois,

, 17–18.

Likewise, opinion evidence is relevant to credibility, see

17 Ellison v. Colvin,

; Simumba v. Colvin, No. 12-

30180-DJC,

, at *10–12 (D. Mass. Mar. 17, 2014),

and the ALJ credited the opinion of state agency reviewing

physician Burton Nault, M.D., see Tr. at 38. Dr. Nault

essentially opined that Floyd could do light work. See Tr. at

87–88.

Moreover, the ALJ discounted Floyd’s subjective complaints

because of drug-seeking behavior and a history of incarceration,

Tr. at 32, 36, 38, which can be valid considerations. See

Sekula,

, 13–14 (drug-seeking behavior); Lee v.

Colvin,

(10th Cir. 2015) (criminal record)

(unpublished); Lisnichy v. Comm’r of Soc. Sec.,

(3d Cir. 2015) (same) (unpublished); Smith v. Astrue,

(D. Mass. 2012) (same). Floyd

testified that she was incarcerated between 2009 and 2012 for

selling drugs, and on-and-off between 2005 and 2009 for other

offenses. Tr. at 50. As to drug-seeking behavior, the ALJ

explained that, although Floyd told one specialist that

oxycodone was “barely helping,” she continually requested

oxycodone from her treating physician’s-assistant at Manchester

Community Health Center. Tr. at 32. Substantial evidence

supports that explanation. See, e.g., Tr. at 497, 520, 525,

545. Other evidence in the record, although not cited by the

ALJ, also reasonably suggests drug-seeking behavior: (1) Floyd

18 misstated the date of a follow-up with her specialist when

requesting an oxycodone refill from her treating PA, potentially

to get a refill or a larger refill than the PA would otherwise

allow, see Tr. at 510, 520, 525; (2) Floyd regularly took more

oxycodone tablets than her PA instructed her to, see Tr. at 510,

520; and (3) Floyd treated once with another PA at a different

Manchester Community Health Center location for knee pain,

receiving oxycodone, Tr. at 556, 559. Overall, substantial

evidence supports the ALJ’s credibility determination as to back

pain.7

The ALJ also supportably discounted Floyd’s subjective

complaints relating to her mental impairments, focusing on her

7 There is a significant inconsistency in the record that the ALJ does not mention, but which provides additional support for his credibility determination. In November 2012, Floyd told a physician’s assistant that lower back pain had been a “chronic problem” for one year. Tr. at 444. In December 2012, Floyd reported that she had back pain for three years, and that the pain had worsened over the past six months. In November 2013, another physician’s assistant noted that Floyd had lower back pain for four to five months, but that it had been a “chronic issue” for three years. Despite back pain starting as early as December 2009, and exacerbated pain as early as June 2012, Floyd did not mention back pain at all during an August 2012 physical examination with state agency consultant G. Silvia Sironich- Kalkan, M.D. See Tr. at 398–400. Dr. Sironich-Kalkan merely noted “some tenderness in the left side of [Floyd’s] back.” Tr. at 400. The function report Floyd filled-out in July 2012 does not include a reference to back pain, either. See Tr. at 222– 29. This inconsistency undermines Floyd’s credibility. See

(“One strong indication of the credibility of an individual’s statements is their consistency, both internally and with other information in the case record.”).

19 obsessive compulsive disorder. In the decision, the ALJ

highlighted supportably normal mental status examinations, as

discussed above. See Tr. at 36–37. In crediting Dr.

Landerman’s mental RFC, which found a single moderate impairment

that did not prevent Floyd from functioning adequately, see Tr.

at 88–89, the ALJ noted its consistency with Floyd’s

“significant daily activities.” Tr. at 38. Just as Floyd’s

daily activities provide support for Dr. Landerman’s opinion,

they support the ALJ’s credibility determination. The ALJ also

gave “great weight” to Dr. Landerman’s opinion, Tr. at 38, in

which Dr. Landerman herself expressed concerns about Floyd’s

credibility, Tr. at 89. As noted above, the ALJ did not err in

crediting Dr. Landerman’s opinion, and such opinion evidence can

support a credibility determination. See, eg., Ellison,

.

Moreover, the ALJ reasonably interpreted the third-party

function report that Floyd’s sister completed in June 2012 to

include no mention of “rituals or significant obsessive

behaviors.” See Tr. at 38. He highlighted evidence conflicting

with Floyd’s testimony that she had difficulty interacting with

others. See Tr. at 37–38, 50, 418. And he found that Floyd’s

failure to take psychotropic medications for “extended periods”

undercut her credibility. See Tr. at 38; Dubois,

,

17–18. As recognized by the ALJ, Floyd reported that she had

20 been out of medication for four to five weeks at a treatment in

November 2013, see Tr. at 37, 482, and that she had run out of

medication two months prior to a treatment in April 2014, see

Tr. at 37, 582. Lastly, the ALJ could validly use Floyd’s

criminal record as a consideration in the credibility

determination. See, e.g., Lee,

. Thus, I

find no reversible error in the ALJ’s analysis.8

B. Step Three Argument

Floyd last argues that the ALJ erred at step three, where

he concluded that Floyd’s impairments did not meet or equal the

severity of any listed impairments. According to Floyd, the ALJ

should have considered Listing 1.04(A), concerning disorders of

the spine, and found that Floyd’s back impairment met that

listing.9 See Doc. No. 12-1 at 19–20. Although the ALJ did not

discuss the listing, any error he committed was harmless because

Floyd has not pointed to evidence in the record suggesting that

she meets the listing’s requirements. See Coppola v. Colvin,

.

To meet Listing 1.04(A), a claimant must suffer from a:

8 The ALJ demonstrated adequate consideration of the Avery factors with respect to back pain and mental impairment. See Tr. at 34–35, 38 (daily activities), 34–35 (symptoms), 32, 37, 53–55 (medication), 37–38 (treatment other than medication); 35, 55 (measures other than medication or treatment).

9 Floyd has not developed an argument that her impairment medically equals Listing 1.04(A). See Doc. No. 12-1 at 19–20. 21 disorder[] of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine) . . . .

20 C.F.R. Part 404, Subpart P, App. 1, Listing 1.04. The

lower back is involved in this case, thereby necessitating

a positive straight-leg raising test. See Doc. No. 12-1 at

19 (describing Floyd’s condition as “chronic lower back

pain”); Tr. at 48 (Floyd testifying that her “low back”

produced limitations). As Floyd has not pointed to a

positive straight-leg raising test in either the sitting or

supine position, see Doc. No. 12-1 at 19–20, I decline to

remand for failure to discuss Listing 1.04(A).10 I need not

10My review of the record has revealed only one arguably positive straight-leg raising test. The associated treatment note does not state, however, whether the test occurred in the sitting or supine position, or both. See Tr. at 454. This renders the test inadequate. See Eli v. Colvin, No. CV 15-3214 FFM,

, at *3 (C.D. Cal. Sept. 29, 2016) (interpreting Listing 1.04(a) to require both sitting and supine positions); Schieno v. Colvin, No. 5:15-CV-0335 (GTS),

, at *6 (N.D.N.Y. Apr. 26, 2016) (same); Coronado v. Colvin, No. 1:13-cv-01784-JLT,

, at *12 (E.D. Cal. Mar. 31, 2015) (same). Even if just one position were sufficient, the arguably positive result came in September 2012 but was followed by two negative results in December 2012 and 22 determine whether Floyd met the other requirements of the

Listing.

IV. CONCLUSION

For the foregoing reasons, I grant the Acting

Commissioner’s motion to affirm (Doc. No. 16) and deny Floyd’s

motion to reverse (Doc. No. 11). The clerk is directed to enter

judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

June 21, 2017

cc: Judith Gola, Esq. Robert Rabuck, Esq.

June 2014. Tr. at 408, 454, 511. This suggests that the positive result was anomalous. 23