UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Valerie Marie Breton

v. Civil No. 16-cv-023-PB Opinion No.

US Social Security Administration, Acting Commissioner, Nancy Berryhill

MEMORANDUM AND ORDER

Valerie Marie Breton challenges the decision of the Acting

Social Security Commissioner to deny her claim for disability

insurance benefits (“DIB”) under Title II of the Social Security

Act,

. The Acting Commissioner moves for an

order affirming the decision. For the following reasons, I

affirm.

I. BACKGROUND

In accordance with Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts (Doc. No. 9).

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

not recount it here. I discuss facts relevant to the

disposition of this matter as necessary below. II. STANDARD OF REVIEW

I am authorized under

(g) to review the

pleadings submitted by the parties and the administrative record

and enter a judgment affirming, modifying, or 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

2 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.

III. ANALYSIS

Breton is a fifty-five-year-old woman who previously worked

as an administrative assistant, esthetician, and service

dispatcher. Tr. at 175. She filed a claim for DIB in January

2013, alleging disability as of October 4, 2012. After her

claim was denied, she requested a hearing before an ALJ. Tr. at

99. At the July 2014 hearing, which her attorney and a

vocational expert also attended, Breton testified before the

ALJ. Tr. at 55–79. The next month, the ALJ issued a written

decision concluding that she was not disabled. Tr. at. 22–36.

The ALJ evaluated Breton’s claim under the five-step

sequential process used for determining whether a claimant is

disabled. See

(a). At step one, the ALJ

found that she had not engaged in substantial gainful employment

since her alleged disability onset on October 4, 2012. Tr. at

24. At step two, the ALJ found that she had severe impairments

of fibromyalgia and affective disorder, but declined to find

other severe impairments. Tr. at 24–26; see § 404.1520(c). At

step three, the ALJ found that her impairments did not meet or

3 medically equal the severity of a listed impairment that would

qualify her as disabled. Tr. at 26–28; see § 404.1520(d). The

ALJ then found that despite her impairments, she had the

residual functional capacity to perform light work, subject to

additional specified limitations. Tr. at 28–34; see § 404.1545.

Based on that assessment, the ALJ determined that she could

perform her past relevant work as an administrative clerk. Tr.

at 35. In the alternative, the ALJ found at step five that even

if Breton could not perform her past work, her RFC enabled her

to transition to other work in the national economy. Tr. at 35–

36. Accordingly, the ALJ concluded that Breton was not

disabled. Tr. at 36. In November 2015, the Appeals Council

declined to review the ALJ’s decision. Tr. at 1. The ALJ’s

decision thus constitutes the Acting Commissioner’s final

decision, and this matter is now ripe for judicial review.

In January 2016, Breton appealed the ALJ’s decision to this

court. Doc. No. 1. On appeal, Breton argues that the ALJ’s

decision must be reversed because he incorrectly assessed her

residual functional capacity and erred in concluding at steps

three, four, and five that she was not disabled. See Doc. No.

7-1. Breton contends that the ALJ erred in finding her

statements not fully credible, and in placing great weight on

the opinions of psychologists and the state’s physician, but

only limited weight on the opinion of her treating primary care

4 physician. The Acting Commissioner argues in response that the

ALJ’s determinations were supported by substantial evidence. In

the following order, I address the ALJ’s credibility

determination, the weight he accorded to various medical

opinions, and his conclusions at steps three, four, and five.

A. Credibility Determination

The ALJ recounted and considered Breton’s statements

regarding her symptoms and limitations, but ultimately concluded

that the evidence did not support her allegations to the extent

alleged. Tr. at 29. Breton challenges this finding by arguing

that she consistently described disabling symptoms and

limitations, which are reflected in her diagnoses. The Acting

Commissioner responds that the ALJ’s credibility determination

is entitled to deference because Breton’s accounts conflicted

with the medical record and her daily activities.

“It is the ALJ’s responsibility to determine whether a

claimant’s statements about [her] symptoms are credible.” Otero

v. Colvin,

; see

(c) (2016)

(since amended). “[SSR] 96-7p prescribes a two-step process

that an ALJ must follow to evaluate the veracity of a claimant’s

subjective complaints.” Otero,

; see SSR 96-7p,

, at *2 (July 2, 1996). “First, the ALJ must

consider whether the claimant is suffering from ‘an underlying

medically determinable physical or mental impairment[] . . .

5 that could reasonably be expected to produce the individual’s

pain or other symptoms.’” Otero,

, 10–11

(alterations in original) (quoting SSR 96-7p,

, at

*2). “Second, the ALJ must determine whether the claimant’s

statements about h[er] symptoms are substantiated by objective

medical evidence.” Id. at 11. “If not, the ALJ must consider

other relevant information to weigh the credibility of h[er]

statements.” Id. “The ALJ’s credibility assessment ‘is

entitled to deference, especially when supported by specific

findings.’” Id. (quoting Frustaglia v. Sec’y of Health & Human

Servs.,

(1st Cir. 1987) (per curiam)). “This

is because the ALJ, not the reviewing court, ‘observed the

claimant, evaluated [the claimant’s] demeanor, and considered

how that testimony fit in with the rest of the evidence . . . .”

(alterations in original) (quoting Frustaglia,

).

Breton argues that the ALJ did not sufficiently credit her

statements about her symptoms, which she claims were consistent

across “her written reports to Social Security as well as her

verbal reports to her treating providers.” Doc. No. 7-1 at 13.

In determining whether a claimant is disabled, the ALJ must

“consider all [of the claimant’s] symptoms, including pain, and

the extent to which [the claimant’s] symptoms can reasonably be

accepted as consistent with the objective medical evidence and

6 other evidence.”

(a) (2016) (since

amended). That “other evidence” includes a claimant’s own

reports, but a claimant’s “statements about [her] pain or other

symptoms will not alone establish that [she is] disabled.”

Breton complained of a litany of physical symptoms (e.g., pain

in her back, toes, feet, stomach, shoulders, arm, groin, and

knees; numbness in her hand and cramping when she grips;

difficulty sleeping; and fainting from pain), manifesting in a

variety of physical limitations (e.g., reduced range of motion,

difficulties standing or sitting for extended periods, driving

longer than fifteen to twenty minutes, and an inability to bend

over), as well as mental symptoms (e.g., depression, anxiety,

panic attacks, fatigue, confusion, and poor memory). The ALJ

declined to credit Breton’s reports of her symptoms to the

extent she alleged. See SSR 96-7p,

, at *4 (“The

adjudicator may . . . find an individual’s statements, such as

statements about the extent of functional limitations or

restrictions due to pain or other symptoms, to be credible to a

certain degree.”). In explaining his finding, the ALJ addressed

a variety of sources. The ALJ made many specific citations to

her statements, treatment records, diagnostic findings, and the

opinions of treating and non-treating sources. See Tr. at 28–

35. He contrasted her subjective reports with the objective

medical evidence and her activities. He also observed

7 inconsistency in her reports to medical sources. Although “the

symptoms of [fibromyalgia] can wax and wane so that a person may

have ‘bad days and good days,’” the ALJ considered and

substantially recounted her longitudinal medical record. See

SSR 12-2p,

, at *6 (July 25, 2012).

Breton argues that the ALJ’s decision “consistently

downplays [her] diagnoses.” Doc. No. 7-1 at 13. As an example,

she offers the ALJ’s statement that “[i]n October, 2012, Dr.

O’Brien stated she was improved and that her final diagnosis was

‘probably fibromyalgia’ although patient notes show only a

continued diagnosis of chronic pain.” Doc. No. 7-1 at 13.

Breton seizes on the fact that the treatment notes from that

date also include a number of other diagnoses, including anxiety

and depression. But she reads too much into the ALJ’s

statement. The ALJ did not deny that she had other diagnoses.

Rather, the ALJ described the October 2012 notes in the context

of Breton’s consultation with a rheumatologist regarding a

possible fibromyalgia diagnosis, and the ALJ’s statement is

fairly interpreted as merely noting that fibromyalgia was not

conclusively diagnosed as of October 2012.

The ALJ also noted that the records of Breton’s treating

providers contain what could reasonably be interpreted as

reservations. For example, her degenerative disk disease was

determined to be non-severe, and even her most sympathetic

8 medical source, Dr. O’Brien, noted that it “certainly could

account for some of her pain but probably not to the degree that

she is feeling,” and there was “no clear answer as to what [was]

causing her pain.” Tr. at 441. Similarly, the physician she

repeatedly saw for pain management, Dr. Baccus, concluded that a

“significant portion of her total pain [picture] is an

undertreated mood disorder and [C]ymbalta may help both the mood

and the musculoskeletal pain.” Tr. at 254. Dr. Baccus further

noted that even though she reported less pain in the areas that

he treated, she continued to report that her global pain level

remained static. Tr. at 251.

More pointedly, support for the ALJ’s credibility

determination comes from the treatment records from around the

time of Breton’s alleged disability onset in October 2012. The

ALJ recognized that Breton had “improved,” citing Dr. O’Brien’s

treatment notes that “she’s been doing somewhat better” and

“[o]verall her pain level is fairly well-controlled at this time

and her sleep is somewhat functional.” Tr. at 367. The

treatment notes show that although she had some tenderness on

the spine, she was “alert and cooperative,” with a “normal mood

and affect” and “normal attention span and concentration.” Tr.

at 369. Between that time and January 2013, when she applied

for disability benefits, the record does not show contact with a

rheumatologist or any other doctors about any problems. The ALJ

9 also recognized that she never sought out a psychologist or

psychiatrist to deal with her emotional and psychological

symptoms and limitations. These considerations provide further

support for the ALJ’s credibility determination.

The ALJ observed Breton’s demeanor and supported his

determination with specific findings and citations. See Otero,

, 10–12; see also Frustaglia,

.

Based on the substantial evidence recounted above, I conclude

that the ALJ’s credibility determination is entitled to

deference.

B. Medical Opinion Weight

Breton next argues that the ALJ improperly gave great

weight to the medical opinions of psychologist Dinan,

psychologist Schneider, and state physician Fairley, but only

limited weight to treating physician O’Brien. The Acting

Commissioner responds by arguing that weighing competing medical

opinions is the province of the ALJ, and the ALJ’s assessment of

the medical opinion evidence is supported by substantial

evidence.

The ALJ must consider and evaluate all medical opinions of

record.

(b)–(c) (2016) (since amended).

“The Commissioner must give ‘controlling weight’ to the opinion

of a treating source if that opinion ‘is well-supported by

medically acceptable clinical and laboratory diagnostic

10 techniques and is not inconsistent with the other substantial

evidence in [the] case record.’” Widlund v. Astrue, No. 11-cv-

371-JL,

, at *8 (D.N.H. Apr. 16, 2012)

(alteration in original) (quoting §§ 404.1527(c)(2),

416.927(c)(2) (2016) (since amended)), report and recommendation

adopted sub nom. Widlund v. U.S. Soc. Sec. Admin., Comm’r, No.

11-cv-371-JL,

(D.N.H. May 14, 2012). Where the

ALJ discounts a treating source’s opinion, the ALJ must give

good reasons for doing so. § 404.1527(c)(2) (2016) (since

amended). Further, “[i]f the RFC assessment conflicts with an

opinion from a medical source, the adjudicator must explain why

the opinion was not adopted.” SSR 96-8p,

, at *7

(July 2, 1996).

1. Dr. O’Brien

The ALJ wrote that he “considered and assigned limited

weight to the opinion of treating physician [O’Brien].” Tr. at

33. Dr. O’Brien opined that Breton could frequently lift and

occasionally carry up to ten pounds, but never more than that,

and she could not stand, sit, or walk for more than five-and-a-

half hours collectively in an eight-hour workday. Tr. at 508–

09. The ALJ assigned this opinion limited weight because Dr.

O’Brien’s “conclusions appear based in part on the claimant’s

subjective complaints and are inconsistent with his treatment

notes.” Tr. at 33. The ALJ analyzed Dr. O’Brien’s opinion in

11 relation to the other evidence in the record, which he cited

extensively. For example, the ALJ cited discrete capacity

determinations made by Dr. O’Brien and explained why those

determinations meaningfully conflict with notations in Dr.

O’Brien’s own examination records. See Tr. at 33–34. The ALJ’s

explanation is reasonable and sufficient. I conclude that the

ALJ’s weighting of Dr. O’Brien’s medical opinion was based on

substantial evidence.

2. Dr. Dinan

The ALJ accorded great weight to the opinion of

psychologist William Dinan, Ph.D., and gave two reasons for his

assessment. First, the ALJ explained that Dr. Dinan’s

“conclusions are consistent with his exam of the claimant,” in

contrast with the weaker relationship between Dr. O’Brien’s

treatment records and ultimate opinion. See Tr. at 34. Second,

the ALJ explained that Dr. Dinan had “special expertise as a

psychologist.” Tr. at 34. As Dr. Baccus noted, Breton’s

overall “pain [picture]” could not be explained without a

psychological lens, which was lacking. Tr. at 254. Although

Breton emphasizes that Dr. Dinan saw her on only one occasion,

the ALJ was entitled to give great weight to Dr. Dinan’s opinion

given its importance to the case and the paucity of other

psychological evaluations in the record. I conclude that the

12 ALJ’s weighting of Dr. Dinan’s opinion was based on substantial

evidence.

3. Dr. Schneider

The ALJ similarly placed great weight on the opinion of

reviewing psychologist Michael Schneider, Psy.D. Tr. at 34.

Dr. Schneider reached a conclusion similar to Dr. Dinan’s. Tr.

at 90. The ALJ, in turn, found that Dr. Schneider’s conclusion

was reinforced by the similar conclusion of Dr. Dinan. See Tr.

At 34, 90. The ALJ also found that Dr. Schneider’s

psychological expertise had special utility. This substantial

evidence justifies the weight that the ALJ placed on Dr.

Schneider’s opinion.1 For these reasons, I conclude that the

ALJ’s weighting of Dr. Schneider’s opinion was based on

substantial evidence.

4. Dr. Fairley

The ALJ also assigned great weight to the opinion of the

state agency’s reviewing physician, Hugh Fairley, M.D. The ALJ

explained that Dr. Fairley’s opinion is consistent with the

1 Breton notes that although Dr. Schneider found that she “is able to interact appropriately with peers and supervisors,” he also concluded that Breton “is able to respond appropriately to changes in the work setting only in a relatively low stress work environment where supervisory criticism is not overly critical.” Tr. at 90. Breton argues that it is “telling” that the ALJ gave little weight to this limitation. Doc. No. 7-1 at 21. But this limitation is vague, and the record reveals that the ALJ’s RFC assessment incorporates the limitation that Breton “should not work in a fast paced production job.” Tr. at 28. 13 examination records. Tr. at 33. To illustrate, the ALJ cited

ten granular findings from the medical records and activities of

daily living and explained that they comport with Dr. Fairley’s

individual conclusions. See Tr. at 33. Breton nevertheless

complains that the ALJ improperly assigned great weight to Dr.

Fairley’s opinion in part because the opinion was consistent

with Breton’s daily cell phone gaming. According to Breton, the

ALJ’s reliance on this finding “calls his analysis into serious

question.” Doc. No. 7-1 at 16. I disagree. The finding that

Breton complains of was only one of ten that the ALJ highlighted

in explaining why Dr. Fairley’s conclusions were entitled to

significant weight. Put simply, even if the ALJ’s focus on

Breton’s cell phone gaming was disproportionate to its

relevance, Breton, in turn, drastically overstates the

importance of that activity in the ALJ’s reasoning. For these

reasons, I conclude that the ALJ’s weighting of Dr. Fairley’s

opinion was supported by substantial evidence.

C. Step Three: Listings

The ALJ determined at step two that Breton suffered from

the severe impairments of fibromyalgia and affective disorder,

but found no other severe impairments. Breton does not

challenge the ALJ’s step two determination. Instead, she argues

that the ALJ erred at step three in failing to determine that

her impairments meet or exceed three listed impairments —

14 specifically listings 14.06 (“Undifferentiated and mixed

connective tissue disease”), 1.04 (“Disorders of the spine”),

and 12.06 (“Anxiety . . . disorders”). See

(d); see also 20 C.F.R. Part 404, Subpart P, App. 1,

Listings 1.04, 12.06, 14.06 (2014) (12.06 since amended).

A claimant is disabled at step three if her impairments

qualify for an impairment listed in appendix 1. § 404.1520(d)

“Most of the listed impairments are permanent or expected to

result in death.” § 404.1525(c)(4). Each listing specifies the

objective medical and other findings that are required to meet

it. § 404.1525(c)(3). If the claimant’s impairment “does not

meet the criteria of a listing,” alternatively “it can medically

equal” that criteria. § 404.1525(c)(5). An impairment “is

medically equivalent to a listed impairment in appendix 1 if it

is at least equal in severity and duration to the criteria of

any listed impairment.” § 404.1526(a). Medical equivalence is

determined by reviewing all the relevant evidence in the record

and the effect on the claimant. § 404.1526(c).

“In considering whether [claimant’s] symptoms, signs, and

laboratory findings are medically equal to the symptoms, signs,

and laboratory findings of a listed impairment,” the ALJ looks

to whether those indicia “are at least equal in severity to the

listed criteria.” § 404.1529(d)(3). The ALJ cannot, however,

15 “substitute [a claimant’s] allegations of pain or other symptoms

for a missing or deficient sign or laboratory finding to raise

the severity of [a claimant’s] impairment(s) to that of a listed

impairment.” § 404.1529(d)(3). The claimant has the burden of

proving that she qualifies for a listing. See Dudley v. Sec’y

of Health & Human Servs.,

(1st Cir. 1987) (per

curiam).

1. Disorder of the Spine

Breton asserts in a conclusory manner that her impairments

qualify for the spine disorder listed under Listing 1.04. That

section provides in pertinent part:

Disorders of the spine (e.g., . . . degenerative disc disease . . . ), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With: . . . [s]pinal arachnoiditis, confirmed by . . . appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours . . . .

Part 404, Subpart P, App. 1, Listing 1.04. This argument fails

for several reasons. First, Breton has not challenged the ALJ’s

determination at step two that she lacked a severe impairment of

degenerative disk disease. Nor has Breton otherwise explained

why her severe impairments satisfy or medically equal this

listing. She has failed to cite to the record, meaningfully

engage with the listing criteria, marshal evidence (e.g., by

explaining the relevance of her cervical spine MRI), or

16 otherwise advance an argument. Given these failures, I decline

to reverse the ALJ’s step three determination on the basis of

listing 1.04.

2. Anxiety Disorder and Tissue Disease

Breton next argues that her impairments qualify under

sections 14.06 (“Undifferentiated and mixed connective tissue

disease”) and 12.06 (“Anxiety . . . disorders”). Among other

criteria, those sections may involve determining whether the

claimant has “marked” limitations in 1) activities of daily

living, 2) maintaining social functioning, and 3) concentration,

persistence, or pace.2 See Part 404, Subpart P, App. 1, Listings

14.06, 12.06 (2014) (12.06 since amended). Breton argues that

the ALJ erred in concluding that her limitations in those

categories were not marked. The Acting Commissioner responds

that the ALJ’s determinations are supported by substantial

evidence.

2 Breton does not explain why she meets or medically equals the other criteria specified in the listing, see, e.g., Listing 14.06(A), so I limit my discussion to the severity of her condition in the areas identified. In addition, section 12.06 also considers whether the claimant has had “[r]epeated episodes of decompensation, each of extended duration,” Listing 12.06(B)(4), or a “complete inability to function outside the area of one’s home,” Listing 12.06(C). Breton does not challenge the ALJ’s decision on those grounds. 17 a. Activities of Daily Living

The ALJ concluded that Breton had a “mild restriction” in

her activities of daily living. Tr. at 27. He supported his

decision with the following evidence:

The claimant lives with her husband. She takes care of cats, prepares meals, does household chores, washes laundry, takes care of indoor plants, and drives a vehicle (Ex. 3E/7). She shops in stores and by computer one to two times per week for 2 to 3 hours. She manages her own finances and uses a computer program to organize her finances. She manages her own personal care, although she reported some difficulties due to physical limitations. She reported that on a typical day she goes to her elderly parents’ house in the morning and returns home about 2 p.m., then does housework. She also plays an internet computer game up to 45 minutes per day using a smart phone, indicating significant use of her hands. The record indicates no more than mild limitations in activities of daily living that are related to a mental disorder.

Tr. at 27. In addition, neither psychologist found a marked

restriction. Psychologist Dinan concluded on the basis of a

consultative examination that Breton’s “abilities to complete

activities of daily living are without impairment.” Tr. at 482.

Reviewing psychologist Schneider similarly concluded that Breton

had “mild” restrictions in such activities. Tr. at 85. For

these reasons, the ALJ concluded that her limitations were not

marked.

Breton argues that other evidence in the record, not cited

by the ALJ, shows that her functioning is markedly impaired.

For example, she notes that she “requires alarms to remind her

18 to take her medication.” Doc. No. 7-1 at 11. But that is not

uncommon, and the other examples that she supplies similarly

fail to materially change the picture of her limitations.

b. Social Functioning

The ALJ concluded that Breton has “moderate difficulties”

in social functioning. Tr. at 27. In reaching this

determination, the ALJ explained that she lives with her husband

without difficulty, occasionally attends dinner parties, visits

her parents twice a week, and has no difficulties “getting along

with” her family, friends, and neighbors. Tr. at 27. But the

ALJ also acknowledged that Breton had notable difficulties with

her supervisor at her prior job. Tr. at 27. Psychologist Dinan

concluded that her “abilities to interact appropriately and

communicate effectively are without impairment,” Tr. at 482, and

psychologist Schneider concluded that Breton’s difficulties were

no greater than “moderate,” Tr. at 89–90. Breton responds to

the ALJ’s determination by emphasizing her statements in the

record that she is reclusive, “hardly keeps in touch with family

and friends,” and is “not very social, ‘mostly a wallflower.’”

Doc. No. 7-1 at 12. But those traits are also consistent with

shyness and introversion, and they do not necessarily entail

marked difficulties in social functioning. In fact, Breton

indicated that she got along with many of her coworkers.

Accordingly, I conclude that the ALJ’s determination that Breton

19 had only moderate difficulties in social functioning was

supported by substantial evidence.

c. Concentration, Persistence, and Pace

The ALJ also concluded that Breton had “moderate

difficulties” in concentration, persistence, and pace. Tr. at

27. The ALJ explained that Breton was able to play word games

on her cell phone for 45 minutes and that psychologist Dinan

concluded, after directly examining and observing Breton, that

“she was alert and oriented, and that her memory function was

observed to be fair over all time intervals, and intellectual

functioning was estimated in the average range.” Tr. at 27.

Psychologist Dinan also concluded that Breton’s “abilities to

understand and remember instructions are without impairment.”

Tr. at 34, 482. But the ALJ did find that Breton had some

cognitive limitations, based on her reports of “fatigue and pain

that reduces her ability to concentrate and follow verbal

instructions,” and psychologist Dinan’s conclusion that she had

limitations when working on unfamiliar tasks or in fast-paced

work environments. Tr. at 27, 34, 482. The ALJ considered

those limitations to be moderate.

Breton devotes only a sentence to contesting this

conclusion. She notes without elaboration that “the ALJ again

focuses on the fact that [she] truthfully reported that she

plays a computer game on her smart phone” and “uses a computer

20 program to manage her finances.” Doc. No. 7-1 at 12. This

perfunctory statement does not explain why the ALJ’s decision

was based on less than substantial evidence. The ALJ’s

determination was not based simply on her use of computer

software, and the ALJ’s conclusion echoes those reached by the

psychologists. Although Breton did have some limitations in

concentration, persistence, and pace, the ALJ had substantial

evidence for concluding that they did not rise to the level of

“marked.”

In sum, the ALJ had substantial evidence for concluding

that Breton did not have marked limitations in the areas

specified in the listings. Thus, even if the record “arguably

could support a different conclusion,” the ALJ’s findings are

conclusive. Irlanda Ortiz,

. Accordingly, I

conclude that the ALJ did not commit reversible error in

determining that Breton was not disabled at step three.

D. Residual Functional Capacity

Because Breton did not qualify for a step three listing,

the ALJ proceeded to assess her residual functional capacity.

See

(a)(4)(iv),(e), 404.1545. The ALJ

concluded that, despite her impairments,

[Breton] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)[3]

3 “Light work” is defined as: 21 except she can never climb scaffolds, ropes or ladders; can occasionally bend, stoop, crouch, kneel and crawl; and should never be exposed to unprotected heights. The claimant has the ability to understand, remember and carry out short, detailed and complex instructions. She has the ability to maintain attention for the two-hour periods in the typical 8- hour workday and 40-hour work week. She can respond appropriately to changes, can interact appropriately with peers and supervisors, but should not work in a fast paced production job.

Tr. at 28. In arriving at this RFC assessment, the ALJ relied

on the objective evidence in the record together with Breton’s

subjective reports, to the extent he found her account credible.

The ALJ also gave “limited weight to the opinion of treating

physician [O’Brien] because his conclusions appear based in part

on [Breton’s] subjective complaints and are inconsistent with

his treatment notes.” Tr. at 33. In contrast, the ALJ gave

great weight to the opinions of reviewing physician Fairley,

examining psychologist Dinan, and reviewing psychologist

Schneider. Tr. at 33–34.

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. To be considered capable of performing a full or wide range of light work, [claimant] must have the ability to do substantially all of these activities.

(b).

22 Breton’s arguments are largely directed at the ALJ’s

credibility determination and weighting of medical opinions, but

those determinations are entitled to deference for the reasons

stated above. Having put to rest those arguments, I conclude

that the ALJ’s RFC assessment was based on substantial evidence.4

Breton’s exertional RFC mirrors the very similar assessment

given by the state’s reviewing physician, Dr. Fairley.

Similarly, Breton’s non-exertional RFC is well supported by the

opinions of the only two psychologists who provided opinions and

by the dearth of objective evidence in the record clearly

establishing greater non-exertional limitations. For these

reasons, I conclude that the ALJ’s RFC determination was based

on substantial evidence.

4 Breton emphasizes that because she suffers from fibromyalgia “her case warrants evaluation under the criteria set forth in [SSR 12-2p].” Doc. No. 7-1 at 7; see SSR 12-2p,

. She does not elaborate further, and her intended point is unclear. She offers no “explanation of how the ALJ actually deviated from SSR 12–2P.” See Diaz v. U.S. Soc. Sec. Admin., Acting Comm’r,

, 4. In fact, “[a]t step two . . . the ALJ recognized fibromyalgia as one of [her] severe medically determinable impairments.” See id.; Tr. at 24. Although “the ALJ’s decision does not cite SSR 12–2p, that omission does not establish reversible error in the absence of any showing that the decision is materially inconsistent with the regulation.” Diaz,

, 5; cf. Anderson v. Colvin,

, 10– 11. Because Breton “has made no such showing, her argument based on SSR 12–2p is without merit.” Diaz,

, 5. 23 E. Steps Four and Five: Ability to Work

Breton half-heartedly challenges the ALJ’s conclusions that

she is not disabled at steps four and five. The Acting

Commissioner responds by arguing that Breton has merely restated

her challenges to the ALJ’s RFC assessment, and the vocational

expert’s testimony, which was based on that RFC, offers

substantial evidence for the ALJ’s conclusion that Breton can

work.

At step four, the ALJ must consider the claimant’s RFC and

her past relevant work. See

(a)(4)(iv),

(f), 404.1560(b). The ALJ may use a vocational expert to obtain

evidence about whether the claimant is able to do her past

relevant work, given the vocational expert’s knowledge of its

physical and mental demands. § 404.1560(b)(2). “[A] vocational

expert or specialist may offer expert opinion testimony in

response to a hypothetical question about whether a person with

the physical and mental limitations imposed by the claimant’s

medical impairment(s) can meet the demands of [her] previous

work . . . .” Id. If the claimant has the RFC to do her past

relevant work, including as generally performed in the national

economy, she is considered able to do it and not disabled. §§

404.1520(a)(4)(iv); 404.1560(b). At the hearing below, the ALJ

posed a hypothetical RFC, which mirrored Breton’s RFC, to the

vocational expert and asked about the work implications. Tr. at

24 74–75. The expert answered that a claimant with that RFC could

still perform past relevant work as an administrative clerk.

Tr. at 75; see Dictionary of Occupational Titles, No. 219.362-

010,

. The ALJ permissibly relied on that

testimony in concluding that Breton was not disabled at step

four. SSR 00-4p,

, at *2 (Dec. 4, 2000).

The ALJ also concluded, in the alternative, that Breton was

not disabled at step five. A claimant is not disabled at step

five if her RFC allows her to adjust to a different job that

exists in significant numbers in the national economy. See

(a)(4)(v), 404.1560(c). The vocational expert

opined that a hypothetical person with the claimant’s age,

education, and work experience could indeed adjust to such work.

The vocational expert cited the jobs of merchandise marker,

cashier II, and sales attendant. See Tr. at 75; Dictionary of

Occupational Titles, No. 209.587-034,

(Marker);

No. 211.462-010,

(Cashier II); No. 299.677-010,

(Sales Attendant). The ALJ again permissibly

relied on that testimony in concluding, in the alternative at

step five, that Breton was not disabled.

Breton has little to say about the ALJ’s step four and five

conclusions. She does not claim that the hypothetical

assumptions supplied to the vocational expert materially

departed from the ALJ’s RFC assessment. See Arocho v. Sec’y of

25 Health & Human Servs.,

(1st Cir. 1982).

Rather, Breton’s challenge is “simply a restatement of [her]

argument that the ALJ improperly weighed the evidence in

determining her RFC, which the court rejects for the reasons

already discussed at length.” See Chapin v. Astrue,

. Thus, I conclude that the ALJ had substantial evidence

for his conclusions that Breton was not disabled at steps four

and five.

IV. CONCLUSION

For the reasons stated, I grant the Acting Commissioner’s

motion to affirm (Doc. No. 10) and deny Breton’s motion to

reverse (Doc. No. 7). The clerk is directed to enter judgment

accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

March 27, 2017

cc: William D. Woodbury, Esq. Terry L. Ollila, Esq.

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