UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Annette Squeglia

v. Civil No. 16-cv-238-JD Opinion No.

Nancy A. Berryhill, Acting Commissioner of Social Security 1

O R D E R

Annette Squeglia 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 of the Social Security Act,

. Squeglia contends that the Administrative Law

Judge (“ALJ”) erred in concluding that she was not disabled

prior to her last insured date. Squeglia moves to reverse the

decision. 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

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). 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

Squeglia applied for social security disability insurance

benefits in February of 2011, alleging a disability beginning on

January 1, 1995, caused by cyclical vomiting syndrome or stomach

migraine, panic attacks, anxiety, and nausea. Her last insured

date was June 30, 1998. Squeglia was thirty-five years old when

her insured period expired. She completed the twelfth grade and

had worked as an electronics assembler and solderer and as a

waitress.

2 Prior to her last insured date, Squeglia went to the

emergency room in March of 1998 because of vomiting, abdominal

pain, and diarrhea. Tests showed that her amylase level was

elevated.2 She improved while in the emergency room and reported

that she was not in pain and felt fine. The abdominal x-ray

done during that incident was normal.

In December of 1998, Squeglia went to the emergency room

because of abdominal pain. Squeglia reported a history of

abdominal pain, nausea, and vomiting. On examination, Dr.

Martinelli found that Squeglia’s heartrate and rhythm were

normal and her abdomen was not tender when she was examined

while distracted. When Squeglia focused on the examination,

however, she indicated that her abdomen was tender. The

abdominal CT scan suggested pancreatitis but was otherwise

normal.

The next day Squeglia again went to the emergency room for

abdominal pain. The examination, abdominal x-ray, and

ultrasound were normal. Dr. Martinelli wrote that Squeglia

appeared to have acute episodes of pancreatitis but that the

presentation was atypical. A test done in January of 1999 to

examine the bile ducts confirmed gastritis.

2 Amylase is an enzyme involved in digestion.

3 Squeglia had another episode of pain, nausea, and vomiting

in March of 2001. She was diagnosed with gastroenteritis.

During an examination in April of 2002, Squeglia reported her

prior abdominal pain and elevated amylase level, said she had

had no continuing problem, and was taking medication for

gastritis without symptoms. On examination, the provider found

no acute distress and nothing out of the ordinary.

On November 16, 2010, Dr. Kuo provided his opinion that

Squeglia’s symptoms met the criteria for cyclical vomiting

syndrome, that her symptoms had increased recently, and that if

she took hydromorphone at the onset the symptoms would stop. On

June 16, 2011, Dr. Kuo reported that he was treating Squeglia

for cyclical vomiting syndrome. In May of 2012, Nurse

Practitioner Christoper Shaw provided an opinion that Dr. Kuo

signed in which Shaw stated that Squeglia had both chromic

abdominal pain syndrome and cyclical vomiting syndrome. Shaw

thought it was likely that the illness could have caused

Squeglia to miss work in the past and that the illness would

continue to interfere with her ability to work.

Squeglia’s application for social security benefits was

denied, and she requested a hearing before an administrative

judge. The hearing was held on May 15, 2012. Squeglia appeared

and testified at the hearing. Dr. Maimon, who is board

certified in internal medicine with a subspecialty in

4 gastroenterology, appeared and testified as an independent

medical expert.

Squeglia testified that she stopped working when she became

ill with cyclical vomiting syndrome because she required so many

bathroom breaks. She said that in 1995 she missed a few days of

work each week because of the illness and that in 1998 she

missed at least two days of work each month. She said that she

was diagnosed with gastritis at Massachusetts General Hospital,

where she had exploratory surgery that resulted in removal of

her gallbladder and appendix.

Squeglia also testified that despite medication she was

unable to leave her home although she had managed to stay out of

the hospital. While she gave details about her current

condition, she said she did not remember details about her

condition between 1995 and 1998.

Dr. Maimon reviewed Squeglia’s medical records and noted

that there was little medical evidence between 1995 and

Squeglia’s date last insured in 1998. He discussed the medical

records and noted that while pancreatitis is a medically

determinable impairment, cyclical vomiting syndrome is not. Dr.

Maimon said that Squeglia could have had cyclical vomiting

syndrome before 1998 based on a 2015 doctor’s report and that

the medical records suggested a diagnosis of pancreatitis in

1998 and 1999 and irritable bowel syndrome in 2002. Dr. Maimon

5 testified that because the record lacks any elevated lipase

levels, it did not support chronic pancreatitis.

Dr. Maimon found nothing in the record to substantiate

Squeglia’s claims of frequent illness during the relevant period

and noted that it was unclear how often she was sick before

1998. Due to the lack of evidence, Dr. Maimon found it hard to

assess Squeglia’s residual functional capacity but thought she

should not work near hazardous machinery and should be near a

bathroom. Because of the lack of evidence prior to 1998, Dr.

Maimon said he could only speculate about her residual

functional capacity then. Currently, Dr. Maimon thought that

Squeglia could work with some lifting, standing, and walking

restrictions as long as she was near a bathroom.

The ALJ found that Squeglia had a severe impairment due to

pancreatitis/cyclical vomiting syndrome, which did not meet or

equal a listed impairment, including Listing 5.00. The ALJ

found that through her last insured date Squeglia had the

residual functional capacity to do a full range of work at all

exertional levels, as long as she avoided unprotected heights

and dangerous machinery and had close proximity to a restroom.

Although Squeglia could not perform her past work, the ALJ found

that there were other jobs she could do, such as merchandise

marker, subassembler, and routing clerk.

6 Based on those findings, the ALJ concluded that Squeglia

had not been disabled before her last insured date. Squeglia

requested review of the ALJ’s decision before the Appeals

Council. On September 16, 2013, the Appeals Council denied

review, making the ALJ’s decision the final decision of the

Acting Commissioner.

Discussion

Squeglia moves to reverse the Acting Commissioner’s

decision, arguing that the ALJ erred in weighing the medical

opinions, in the credibility assessment, in the Step Five

finding, and by failing to consider Social Security Ruling 83-

20. The Acting Commissioner moves to affirm, arguing that the

ALJ properly determined that Squeglia was not disabled before

her last insured date. Squeglia 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

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).

7 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).

A. Last Insured Date and Social Security Ruling 83-20

To be eligible for disability insurance benefits, the

claimant must have been disabled while she had insured status

under the social security program.

(a)(1)(A);

(a); Jack v. Comm’r, Social Security Admin., ---

F. App’x ---,

, at *2 (11th Cir. Jan. 11, 2017).

For that reason, a claimant must show that she was disabled,

within the meaning of the Social Security Act, before her last

insured date. Fischer,

; Tremblay v. Sec’y of

Health & Human Servs.,

(1st Cir. 1982). “A

title II worker cannot be found disabled under the Act unless

insured status is also met at a time when the evidence

establishes the presence of a disabling condition(s).” Titles

II and XVI: Onset of Disability, SSR 83-20,

, at

*1 (Jan. 1, 1983).

When a claimant has been determined to be presently

disabled, the issue remains to determine the date of the onset

8 of the disability.4 SSR 83-20, at *1. In some cases, SSR 83-20

requires the ALJ to call a medical expert to assist in

determining the onset date. The First Circuit, however, has

recently expressed doubt about the application of SSR 83-20.

Fischer,

.

In this case, the ALJ did have a medical expert who

testified at the hearing. The ALJ also considered the matters

required in SSR 83-20 for determining an onset date. See SSR

83-20, at *1. Therefore, whether or not SSR 83-20 is binding in

this circuit and whether it would apply in this case, Squeglia

has not shown that the ALJ failed to comply with its

requirements.

B. Medical Opinion Evidence

Squeglia argues that the ALJ erred in giving more weight to

the opinions of the independent medical expert, Dr. Maimon, and

less weight to the opinions of Nurse Practitioner Shaw and Dr.

Kuo. Specifically, she contends that the ALJ should have

credited the opinions of Shaw and Dr. Kuo as to the severity of

her symptoms and the likely effect on her ability to work. The

4 In this case, the ALJ did not decide whether Squeglia is presently disabled, and she does not argue that the ALJ should have made that finding. While the First Circuit has found that the issue of present disability has been poorly explained by the Acting Commissioner, the court did not require ALJs to make a ruling on the onset date of disability after a date last insured. Fischer,

.

9 Acting Commissioner contends that the ALJ properly evaluated the

medical evidence.

An ALJ is required to consider the medical opinions along

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

(b). Medical opinions from all sources 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 ---,

, at *16 (D. Mass.

Nov. 3, 2016) (internal quotation marks omitted).

In addition, an ALJ may obtain information and opinions

from an independent medical expert about the nature and severity

of a claimant’s impairments.

(e)(2)(iii).

Those opinions are assessed under the same criteria used for

other medical opinions.

The ALJ credited Dr. Kuo’s diagnosis of cyclical vomiting

disorder in 2010. Based on that diagnosis and diagnoses of

10 pancreatitis, the ALJ found that Squeglia had those severe

impairments before her date last insured. Therefore, Squeglia’s

arguments asserting Dr. Kuo’s expertise in the area of cyclical

vomiting disorder do not undermine the ALJ’s finding.

The ALJ gave little weight to the opinion in May of 2012 of

Nurse Practitioner Christopher Shaw, which was also signed by

Dr. Kuo, that Squeglia’s condition of chronic abdominal pain

syndrome and cyclical vomiting “likely . . . has caused her to

miss many days of work in the past and will continue to

interfere with her ability to hold down regular work.” The ALJ

explained that Shaw and Kuo had not made a diagnosis of when the

condition began and had only started treating Squeglia in 2010,

long after the expiration of her insurance. For that reason,

they lacked personal experience with her condition during the

relevant time.

The ALJ also noted that contrary to the Shaw and Kuo

opinion the medical records showed minimal evidence of disabling

vomiting attacks or abdominal pain prior to the date last

ensured and also during the period shortly after. Squeglia

contends that the ALJ’s assessment is wrong because she was

treated for abdominal pain in 1984 and 1987 in addition to

treatment in March of 1998. She also notes she was treated six

months after her insured date and at that time complained of an

eight-year history of abdominal pain and other symptoms.

11 The cited episodic events support the ALJ’s finding. In

addition, treatment notes 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)). The

episodes in March and December of 1998 were brief, and Squeglia

told medical providers in 2001 that medication was controlling

her symptoms.

The ALJ did not “simply reject” the opinions of Dr. Kuo and

Nurse Practitioner Shaw, as Squeglia asserts. Instead, the ALJ

explained the weight given to those opinions. Squeglia has not

shown that the ALJ improperly weighed the opinions provided by

Dr. Kuo and Nurse Practitioner Shaw.

Squeglia also faults the ALJ for relying on the opinion of

Dr. Maimon, the independent medical expert who testified at the

hearing. Squeglia misunderstands Dr. Maimon’s opinion and the

limitations he expressed about forming an opinion of her

functional capacity before June of 1998.

Dr. Maimon correctly noted that there was little medical

evidence from the relevant time period. He testified that

12 Squeglia’s medical records showed no office visits or

discussions of employment and showed that she had infrequent

symptoms. Dr. Maimon stated that there was nothing in her

records to show that she was sick every day, as Squeglia

testified at the hearing. The medical evidence supports Dr.

Maimon’s testimony.

Because of the lack of medical evidence, Dr. Maimon said

that he could not give a residual functional capacity for the

period between 1995 and 1998, except that Squeglia would have to

avoid hazardous machinery and would need to be near a bathroom.

Dr. Maimon concluded that if Squeglia were to work in her

present condition, she could lift ten to twenty pounds and sit

for six hours in an eight-hour day as long as she was near a

bathroom. Squeglia has not shown that the ALJ erred in his

analysis of Dr. Maimon’s opinions.

C. Credibility

In determining the credibility of the claimant’s subjective

statements about her functional limitations, the ALJ considers

the other evidence related to the claimant’s pain, symptoms, and

ability to function. Frustaglia v. Sec’y of Health & Human

Servs.,

(1st Cir. 1987); Avery v. Sec’y of

Health & Human Servs.,

(1st Cir. 1986); see also

Titles II and XVI: Evaluation of Symptoms in Disability Claims,

13 SSR 16-3p,

(Mar. 16, 2016). The factors the ALJ

reviews are the claimant’s daily activities, the frequency and

intensity of pain and symptoms, precipitating and aggravating

factors, medication taken to address pain and symptoms, other

treatment for pain and symptoms, other measures taken to relieve

pain or symptoms, and other factions related to functional

limitations and restrictions.

(c)(3). An

ALJ’s credibility determination will be affirmed if it is

supported by substantial evidence.

In this case, the ALJ found at Step Two that Squeglia had a

medically determinable impairment due to “pancreatitis/cyclical

vomiting syndrome” during the relevant period. The ALJ further

found that although the impairment could be expected to cause

the symptoms Squeglia alleged, “the claimant’s statements

concerning the intensity, persistence and limiting effects of

these symptoms are not entirely credible.” Squeglia contends

that the ALJ erred by ignoring her former husband’s testimony

and erred because her statements about the severity of her

symptoms are supported by Dr. Kuo’s opinion.

The ALJ did consider both Squeglia’s testimony about the

severity of her symptoms and her former husband’s testimony that

Squeglia lost her last job because she was so often sick. The

ALJ reviewed the meager medical records of Squeglia’s treatment

before June 30, 1998, explained that the little treatment

14 Squeglia received and the objective medical findings between

January 1, 1995, and June 30, 1998, did not support the severity

of symptoms that she claimed.5 As explained above, the ALJ gave

little weight to the opinion provided by Nurse Practitioner

Shaw, and signed by Dr. Kuo, that Squeglia likely missed many

days of work because of her illness and provided appropriate

reasons for doing so.6 Therefore, substantial evidence supports

the ALJ’s credibility determination.

5 Squeglia argues that the ALJ erred in citing a lack of evidence to support her claims as a basis for the credibility finding, but she cites no authority in support of her theory. To the contrary, the ALJ is required to consider the medications, treatment, and other measures the claimant used to address the impairment in determining credibility. § 404.1529(c)(3). Further, a lack of sustained treatment for a claimed impairment may be evidence that the claimant is not disabled. See, e.g., Irlanda Ortiz v. Sec’y of Health & Human Servs.,

(1st Cir. 1991); Smolinsky v. Comm’r, Social Security Admin.,

, at *10 (D.N.H. May 12, 2009) (citing cases). Squeglia also argues that the ALJ erred in failing to assess separately the credibility of the testimony of her former husband. She cites no authority that a credibility assessment must be done as to the testimony of a witness other than the claimant or must be considered separately when the same reasons applied to the claimant’s credibility.

6 Importantly, Squeglia bears the burden of proving that she had a disabling impairment through Step Four of the sequential analysis. Freeman,

. If Squeglia lost her job in 1995 because of absences due to cyclical vomiting illness, presumably she could have submitted employment records or other evidence to show that to be the case.

15 D. Step Five

Squeglia asserts that the “ALJ’s RFC-related errors . . .

irreparably tainted the ALJ’s Step 5 finding.” In support,

Squeglia argues that because the vocational expert’s testimony

was based on an inaccurate residual functional capacity

assessment, that testimony does not provide substantial evidence

to support the ALJ’s finding that jobs existed that Squeglia

could do. Squeglia, however, does not explain in her motion

what was wrong with the ALJ’s residual functional capacity

assessment, which was made at Step Four. In her reply, Squeglia

states that the ALJ’s residual functional capacity assessment

“is flawed because the ALJ incorrectly granted significant

weight to the medical expert who testified at the hearing, Dr.

Maimon, and only limited weight to treating specialist, Dr.

Kuo.”

In assessing a claimant’s residual functional capacity, the

ALJ determines “the most [the claimant] can do despite [her]

limitations . . . based on all the relevant evidence in [the]

case record.”

(a)(1). As is explained

above, the ALJ properly weighed the medical opinions in the

record and decided to give greater weight to Dr. Maimon’s

opinion. The ALJ found, based on the record evidence, that

during the relevant period Squeglia had a residual functional

capacity to do a full range of work at all exertional levels as

16 long as she avoided unprotected heights and dangerous moving

machinery and was close to a restroom. The ALJ also found that

Squeglia was limited to uncomplicated tasks.

Because Squeglia has not shown that the ALJ’s residual

functional capacity assessment was erroneous, her argument that

the ALJ’s Step Five finding is flawed cannot succeed.

Substantial evidence based on the vocational expert’s testimony

supports the ALJ’s finding at Step Five.

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

February 28, 2017

cc: Penelope E. Gronbeck, Esq. T. David Plourde, Esq.

17