UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ilias Natsis

v. Civil No. 16-cv-063-LM Opinion No.

Nancy A. Berryhill, Acting Commissioner of Social Security1

O R D E R

Ilias Natsis seeks judicial review, pursuant to

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

Security Administration, denying his application for social

security disability benefits. Natsis contends that the

Administrative Law Judge (“ALJ”) erred in his assessment of the

medical evidence, in evaluating the credibility of his

subjective complaints, and in assessing his residual functional

capacity. The Acting Commissioner moves to affirm.

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,

1 Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23, 2017, replacing Carolyn W. Colvin. See Fed. R. Civ. P. 25(d).

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

(1st Cir. 2001). The court defers to the ALJ’s

factual findings as long as they are supported by substantial

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

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Astralis

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

(1st Cir. 2010).

Background

The background information is summarized from the parties’

joint statement of material facts. See LR 9.1(c). The joint

statement does not include a summary of any medical records.

The court relies on the joint statement and, therefore, assumes

that any medical evidence in the Administrative Record was not

deemed to be significant by the parties.

In February 2013, Ilias Natsis applied for social security

disability benefits, claiming a disability that began on March

12, 2013. Natsis alleged that he was disabled because of

cervical degenerative disc disease and migraine headaches.

Natsis was forty-six years old at the time of his application.

He had previously worked in the banking industry and was self-

employed in the pizza business for the 15 years prior to his

application for benefits.

2 I. Function Report

On March 19, 2013, Natsis submitted a Function Report to

the Social Security Administration. Natsis wrote in the

Function Report that he has cervical degenerative disc disease

and is in constant pain in his neck and upper back. He also

wrote that he has severe migraines, and has “intolerable” levels

of pain when he is subject to continuous standing, sitting, or

exposure to mental and physical stress.

Natsis also described his typical day. He wrote that he

stretches when he wakes up and takes a hot shower to relax his

muscles. He then has breakfast and reads the news before using

home treatment, usually a “traction device” or a TENS unit,2 for

the pain in his neck. He usually spends time paying bills and

running errands, and often makes food. After having something

to eat, he generally rests, before getting up around 5:00 p.m.

and watching a movie or playing guitar. He also spends a few

hours talking to his wife before going to bed around 10:00 p.m.

Natsis also helps care for his children and his mother, does

clean-up around the house, mows the lawn, cleans, shops, drives

“TENS” is an acronym for “transcutaneous electrical nerve 2

stimulation.” It is a device that applies electricity to a patient’s skin to reduce pain.

3 a car, and has no problems caring for himself.

II. State Agency Physician Opinion

On May 8, 2013, Dr. Hugh Fairley, a state agency

consultative physician, reviewed Natsis’s medical records of

physical impairments. He opined that Natsis could perform the

full range of light work as defined in

(b).

A full range of light work means that the claimant can

occasionally lift and/or carry 20 pounds, frequently lift and/or

carry 10 pounds, stand and/or walk (with normal breaks) for a

total of about six hours in an eight-hour workday, sit (with

normal breaks) for about six hours in an eight-hour workday, has

an unlimited ability to push and/or pull (including operation of

hand and/or foot controls), and has no postural, manipulative,

visual, communicative, or environmental limitations.

III. Hearing Before the ALJ

A hearing before an ALJ was held on Natsis’s application on

August 13, 2014. Natsis was represented by an attorney and

testified at the hearing.

Natsis testified about his daily activities. He stated

that he would be in excruciating pain after standing for as

little as 30 minutes or sometimes longer than an hour. He also

testified that he did yoga with his daughter, but sometimes had

difficulty climbing stairs, did not do household chores or

4 outside work, could only walk a “couple of blocks” before his

neck started to ache, and was unable to bend over. He further

testified that there was no indication that he was a candidate

for surgery.

IV. ALJ’s Decision

The ALJ issued an unfavorable decision on September 3,

2014. The ALJ found that Natsis had severe impairments due to

moderate degenerative disc disease of the cervical spine, with

spondylosis and foraminal narrowing at the C5-C6 and C6-C7

levels but without significant compromise of the central canal.

He also found that Natsis’s impairments did not meet or equal a

listed impairment. The ALJ concluded that Natsis had the

residual functional capacity to do light work under

(b), and had unlimited use of hands and feet to operate

controls, and push and pull. With that evaluation, the ALJ

found that Natsis could do his past work as a restaurant owner

and credit analyst and, therefore, was not disabled. The

Appeals Council denied Natsis’s request for review, making the

ALJ’s decision the Acting Commissioner’s final decision.

Discussion

In support of his motion to reverse the Acting

Commissioner’s decision, Natsis contends that the ALJ erred in

5 his assessment of the medical evidence, in evaluating the

credibility of his subjective complaints, and in assessing his

residual functional capacity. The Acting Commissioner moves to

affirm.

In determining whether a claimant is disabled for purposes

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

sequential analysis.

. The claimant bears

the burden through the first four steps of proving that his

impairments preclude him from working. Freeman v. Barnhart,

(1st Cir. 2001). At the fifth step, the Acting

Commissioner has the burden of showing that jobs exist which the

claimant can do. Heggarty v. Sullivan,

(1st

Cir. 1991).

I. Medical Opinion Evidence

An ALJ is required to consider the medical opinions along

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

(b). Medical opinions are evaluated based on

the nature of the medical source’s relationship with the

claimant, the consistency of the opinion with the other record

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

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

may rely on opinions of state agency consultant physicians under

the same analysis as that applied to opinions of treating or

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

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

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

XVI: Consideration of Administrative Findings of Fact by State

Agency Medical and Psychological Consultants and Other Program

Physicians, SSR 96-6p,

(July 2, 1996).

Medical opinions based on the claimant’s subjective

reports, rather than objective medical findings, may be entitled

to less weight. Rodriguez Pagan v. Sec’y of Health & Human

Servs.,

(1st Cir. 1987). Further, medical

opinions are “‘statements . . . that reflect judgments about the

nature and severity of [the claimant’s] impairment(s), including

[his] symptoms, diagnosis and prognosis, and what [he] can still

do despite impairment(s), and [his] physical or mental

restrictions.’” Hesson v. Colvin, No. 2:15-cv-106-DBH,

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

(a)(2)). Therefore, treatment notes and medical records

that do not include judgments about a claimant’s restrictions or

functional abilities do not constitute medical opinions. See,

e.g., Delgado-Benitez v. Astrue, No. CIV. 10-2065 MEL,

, at *8 (D.P.R. Mar. 30, 2012) (noting that “progress

notes and treatment records that do not include any judgments

about plaintiff’s physical restrictions or what she can do

7 despite her impairments . . . . do not constitute medical

opinions”).

Natsis asserts that the “objective medical findings do not

support the determinations of the ALJ.” Doc. no. 11-1 at 3. In

support, Natsis cites a pain clinic note from November 2011, see

Admin. R. at 256, a July 2014 radiological report of an MRI of

his cervical spine, see id. at 300, and two medical records that

were generated in February 2015, see id. at 9-10, 30, after the

ALJ issued his decision.

As the Appeals Council noted, the medical records from

February 2015 have no bearing on whether Natsis was disabled at

the time the ALJ issued his decision. Natsis’s motion

challenges the ALJ’s determination, not the Appeals Council’s

decision.

None of the records Natsis cites, including those from

February 2015, is a medical opinion about the effect of Natsis’s

medical condition on his ability to function. Instead, the

cited records describe Natsis’s symptoms and provide diagnoses.

Even if those records supported Natsis’s position, the ALJ could

not rely on them in making a determination of disability without

a corresponding medical opinion. See Nguyen,

(“An ALJ, as a layperson, may not interpret medical data in

functional terms without a supporting medical opinion.”); see

8 also Merced v. Astrue, No. CIV. 10-1253 MEL,

, at

*7 (D.P.R. Mar. 30, 2012) (“The progress notes from plaintiff’s

treating physicians included her diagnoses and symptoms, but no

information about the . . . effect on her physical abilities and

any resulting physical restrictions. Therefore, the medical

evidence of record was unhelpful for determining if plaintiff’s

conditions were disabling.”).

The only medical opinion cited by the parties was provided

by Dr. Fairley. Dr. Fairley concluded that Natsis was capable

of doing a full range of light work. As such, the only opinion

in the record supports the ALJ’s finding. Therefore, Natsis’s

argument that the ALJ erred in weighing the medical evidence is

without merit.

II. Natsis’s Subjective Complaints

Natsis next asserts that the ALJ failed to properly assess

his subjective complaints by not crediting his statements

regarding his limitations in the activities of daily living. He

argues that his complaints support a finding of disability.

“The credibility determination by the ALJ, who observed the

claimant, evaluated his demeanor, and considered how that

testimony fit in with the rest of the evidence, is entitled to

deference, especially when supported by specific findings.”

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

, 195

9 (1st Cir. 1987); see also Flood v. Colvin, No. 15-2030,

, at *1 (1st Cir. Oct. 20, 2016) (“Ordinarily, this court

must defer to a credibility determination made by an ALJ who has

heard claimant’s testimony and considered claimant’s

demeanor.”). Evaluation of a claimant’s subjective complaints

requires a two-step process. See Cabral v. Colvin, No. 12-

11757-FDS,

, at *7 (D. Mass. Aug. 6, 2013)

(citing Avery v. Sec’y of Health & Human Servs.,

(1st Cir. 1986)); see also SSR 96–7p.3

“The ALJ first decides whether there is an underlying

impairment that is shown by medically acceptable diagnostic

techniques and could be expected to cause the claimant's

symptoms.” Hunt v. Colvin, No. 13-cv-074-JD,

,

at *8 (D.N.H. Sept. 17, 2013). “Second, if such an impairment

is found, the ALJ evaluates the intensity, persistence, and

limiting effects of the impairment or impairments.”

At the

second step, the claimant’s credibility is assessed based on

consideration of several factors: the claimant’s daily

3 When the ALJ made his decision on Natsis’s claim, credibility assessments by SSA decisionmakers were governed by SSR 96–7p. Since then, SSR 96–7p has been superseded by SSR 16– 3p,

(Mar. 16, 2016). “Because the ALJ issued his decision while SSR 96-7p was in effect, the court evaluates the ALJ’s credibility assessment under that regulation.” Regalado v. Colvin, No. 15-CV-299-PB,

, at *8 (D.N.H. Sept. 14, 2016).

10 activities, functional restrictions, non-medical treatment,

medications and side-effects, precipitating and aggravating

factors, and the nature, location, onset, duration, frequency,

radiation, and intensity of the pain. See

(c)(3); Avery,

.

The ALJ noted that Natsis “testified as to an extremely

limited range of functional abilities.” Admin. R. at 35. The

ALJ found, however, that Natsis’s testimony about the severity

of his symptoms was not credible in light of Natsis’s statements

in his Function Report, which were inconsistent with his

testimony at the hearing. For example, the ALJ noted that

Natsis wrote in his Function Report that he could walk one or

two miles before requiring a break, which conflicted with his

testimony at the hearing that he could walk only a “couple of

blocks.” The ALJ also referenced Natsis’s testimony at the

hearing that he could not sit for long periods of time and had

trouble climbing stairs, noting that such limitations were

contradicted by Natsis’s representations in his Function Report.

In addition, the ALJ also noted that Natsis received only

conservative treatment for his spinal condition, such as

physical therapy and a home exercise program, and that his

medical providers stated that he had improved with such

treatment. The ALJ further noted that Natsis had not required

11 surgery on his spine, and that a medical provider indicated that

Natsis had been “overall doing fairly well” with medication,

such as oxycodone.

Finally, the ALJ cited several of Natsis’s medical records

which indicated that Natsis’s testimony concerning his own

limited functionality was not credible. The ALJ noted medical

records from June 2014, in which Natsis’s medical provider

reported normal strength, sensation, gait, and heel and toe

walking, as well as an “unremarkable neurological examination.”

Admin. R. at 35. The ALJ also cited a pain clinic note from

Kathleen White, APRN in November 2013, in which White noted that

she told Natsis that he should participate in “employment,

volunteerism, [and] social interaction” as a “distraction” from

his pain.

The ALJ properly assessed Natsis’ credibility and made

specific findings to support his evaluation. Therefore, the

ALJ’s evaluation is entitled to deference.

III. Residual Functional Capacity

At the fourth step of the sequential analysis, the ALJ

assesses the claimant’s residual functional capacity, which is a

determination of the most a person can do in a work setting

despite her limitations caused by impairments, see

(a)(1), and his past relevant work, see

at

12 § 404.1520(a)(4)(iv)). If the claimant can perform his past

relevant work, the ALJ will find that the claimant is not

disabled. See id. at § 404.1520(a)(4)(iv)). The ALJ’s residual

functional capacity assessment is reviewed to determine whether

it is supported by substantial evidence. Irlanda Ortiz v. Sec'y

of Health & Human Servs.,

(1st Cir. 1991);

Pacensa v. Astrue,

(D. Mass. 2012).

Natsis asserts that the ALJ’s residual functional capacity

“is not supported by medical documentation. The ALJ did not

give appropriate weight to the medical opinion of the

Plaintiff’s treating physicians.” Doc. no. 11-1 at 4. Natsis,

however, does not identify any medical opinion that the ALJ

failed to properly assess. As mentioned above, the medical

records which Natsis cites are not opinions. Rather, they are

treatment notes without opinions. The ALJ properly relied on

the opinion provided by Dr. Fairley, who reviewed the medical

record.

In formulating the residual functional capacity, the ALJ

gave Dr. Fairley’s opinion great weight because Dr. Fairley is

familiar with the Social Security structure, he supported his

opinion with citations to specific evidence in the record, and

the opinion was consistent with Natsis’s limited treatment for

back pain and his daily activities. Although Natsis contends

13 that the residual functional capacity assessment is inconsistent

with other medical opinion evidence in the record, that argument

is without merit for the reasons discussed above.

Natsis also briefly raises an additional challenge to the

ALJ’s determination that Natsis could perform his past work as a

restaurant owner and credit analyst. Natsis asserts that the

ALJ improperly relied on the vocational expert’s response to a

hypothetical question to support his finding that Natsis had the

residual functional capacity to return to his previous work.

Natsis notes that in response to a hypothetical question that

included further limitations on Natsis’s functional abilities,

the vocational expert opined that he could not return to his

past work.

For the reasons discussed above, the ALJ’s residual

functional capacity assessment is supported by substantial

evidence. As a result, the hypothetical question that

incorporated the residual functional capacity assessment was

correct and the vocational expert’s opinion based on the

hypothetical question provides substantial evidence in support

of the ALJ’s Step Four finding.

14 Conclusion

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

(document no. 11) is denied. The Acting Commissioner’s motion

to affirm (document no. 15) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

_________________________ Landya McCafferty United States District Judge

March 16, 2017

cc: Michael T. McCormack, Esq. T. David Plourde, Esq. John A. Wolkowski, Esq.

15