UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mariel E. Lonek

v. Case No. 16-cv-212-PB Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Pursuant to

(g), Mariel Lonek moves to

reverse the Acting Commissioner’s decision to deny her

application for Social Security disability insurance benefits

under Title II of the Social Security Act,

. The

Acting Commissioner, in turn, moves for an order affirming her

decision. For the reasons that follow, I affirm.

I. Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

(g). However, the court “must uphold a denial of

social security disability benefits unless ‘the [Acting

Commissioner] has committed a legal or factual error in

evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS,

(1st Cir. 1996) (per curiam) (quoting Sullivan v.

Hudson,

(1989)).

As for the statutory requirement that the Acting

Commissioner’s findings of fact be supported by substantial

evidence, “[t]he substantial evidence test applies not only to

findings of basic evidentiary facts, but also to inferences and

conclusions drawn from such facts.” Alexandrou v. Sullivan,

(S.D.N.Y. 1991) (citing Levine v. Gardner,

(2d Cir. 1966)). In turn, “[s]ubstantial

evidence is ‘more than [a] mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Currier v. Sec’y of HEW,

(1st Cir. 1980) (quoting Richardson v. Perales,

(1971)). But, “[i]t is the responsibility of the

[Acting Commissioner] to determine issues of credibility and to

draw inferences from the record evidence. Indeed, the

resolution of conflicts in the evidence is for the [Acting

2 Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,

(1st Cir. 1991) (per curiam) (citations

omitted). Moreover, the court “must uphold the [Acting

Commissioner’s] conclusion, even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence.” Tsarelka v. Sec’y of HHS,

(1st Cir. 1988) (per curiam). Finally, when determining

whether a decision of the Acting Commissioner is supported by

substantial evidence, the court must “review[] the evidence in

the record as a whole.” Irlanda Ortiz,

(quoting

Rodriguez v. Sec’y of HHS,

(1st Cir. 1981)).

II. Background

The parties have submitted a Joint Statement of Material

Facts. That statement (doc. no. 12) is part of the court’s

record and will be summarized here, rather than repeated in

full.

Lonek applied for disability insurance benefits (“DIB”) in

January of 2013, claiming that she had been disabled since March

1, 1997, as result of juvenile myoclonic epilepsy,1

1 Juvenile myoclonic epilepsy is “an [e]pilepsy syndrome typically beginning in early adolescence, and characterized by

3 hypothyroidism,2 migraine disorder, lupus anticoagulant,3 a 2009

back injury (slipped dics), and a learning disability

(difficulty with verbal instructions). Lonek later amended the

alleged onset date of her disability to April 1, 2001.

In April 2013, Dr. Burton Nault, a state agency medical

consultant, performed an assessment of Lonek’s physical residual

functional capacity (“RFC”).4 His RFC assessment covered the

period from March 2, 2007, through June 30, 2012, and the

Disability Determination Explanation form that reported his RFC

assessment lists three medically determinable impairments:

coagulation disorder, epilepsy, and migraine. Dr. Nault found

early morning myoclonic jerks that may progress into a generalized tonic-clonic seizure.” Stedman’s Medical Dictionary 656 (28th ed. 2006).

2 Hypothyroidism is “[d]iminished production of thyroid hormone, leading to clinical manifestations of thyroid insufficiency, including low metabolic rate, tendency to gain weight, somnolence, and sometimes myxedema.” Stedman’s, supra note 1, at 939.

3 Lupus anticoagulant is an “antiphospholipid antibody causing elevation in partial thromboplastin time; associated with venous and arterial thrombosis.” Stedman’s, supra note 1, at 105.

4 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [her] limitations.”

(a)(1).

4 that Lonek could: (1) lift and/or carry 10 pounds frequently and

20 pounds occasionally; (2) stand and/or walk (with normal

breaks) for about six hours in an eight-hour workday; (3) sit

(with normal breaks) for about six hours in an eight-hour

workday; and (4) push and/or pull the same amount of weight she

could lift and/or carry. He further opined that Lonek had no

postural, manipulative, visual, communicative, or environmental

limitations.

On May 23, 2013, Lonek saw a rheumatologist, Dr. Daniel

Kunz, with whom she had previously treated in 2008. She

presented with headaches. Dr. Kunz reported Lonek’s subjective

complaints of arthralgias and chronic headaches,5 but also

indicated that, objectively, she was “in no acute distress.”

Administrative Transcript (hereinafter “Tr.”) 1177. He gave the

following diagnosis: “Positive ANA (antinuclear antibody).”6

One week after meeting with Lonek, Dr. Kunz wrote a letter,

addressed “To Whom it May Concern,” that states, in full:

5 Arthralgia is “[p]ain in a joint.” Stedman’s, supra note 1, at 159.

6 Antinuclear antibody is “an [antibody] showing an affinity for nuclear antigens including DNA and found in the serum of a high proportion of patients with systemic lupus erythematosus, rheumatoid arthritis, and certain collagen diseases and in some of their healthy relatives. Stedman’s, supra note 1, at 103.

5 “Mariel Lonek is a patient of this office. Patient should not

work more than 20 hours per week. Thank you.” Tr. 1026.

On April 18, 2014, Lonek returned to Dr. Kunz for a follow-

up on her positive ANA. She also complained of “worsening

musculoskeletal pain.” Tr. 1172. Her physical examination

revealed “[w]idespread muscle and joint tenderness without joint

swelling or inflammatory changes.” Id. Dr. Kunz concluded that

Lonek “does have fibromyalgia based on history, physical, and

lack of features suggestive of systemic rheumatic disease.”7 Id.

In addition to examining Lonek, Dr. Kunz completed an RFC

form. In it, he opined that Lonek: (1) could only stand for

short periods of time; (2) could not sit upright for six to

eight hours a day; (3) needed to lie down during the day due to

pain; and (4) could walk one full city block non-stop. He

further opined that Lonek could rarely reach above her

shoulders, down to waist level, or down toward the floor, but

could frequently handle objects carefully and handle objects

with her fingers. He also indicated that Lonek could lift and

carry five to ten pounds, but was limited in her ability to

7 Fibromyalgia is “[a] common syndrome of widespread soft- tissue pain accompanied by weakness, fatigue, and sleep disturbance.” Stedman’s, supra note 1, at 725.

6 bend, squat, and kneel, due to pain. Finally, Dr. Kunz

indicated that Lonek was currently working four hours a day,

three days a week, and opined that she could work up to 20 hours

a week, but “could not do anything more.” Tr. 1192.

After conducting a hearing, an Administrative Law Judge

(“ALJ”) issued a decision that includes the following relevant

findings of fact and conclusions of law:

3. The claimant has the following severe impairments: fibromyalgia; low back pain; seizures; and headaches (20 CFR 404.1520(c)).

. . . .

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404. 1526).

. . . .

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can occasionally climb ramps and stairs, never climb ladders, ropes, or scaffolds, and occasionally stoop, kneel, crouch, and crawl. The claimant can frequently reach, bilaterally. The claimant must avoid all exposure to hazardous machinery, operation and control of moving machinery, and unprotected heights.

. . . .

10. Considering the claimant’s age, education, work experience, and residual functional capacity, there

7 are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).

Tr. 243, 244, 245, 252. Based upon his assessment of Lonek’s

RFC, and a hypothetical question posed to a vocational expert

(“VE”) that incorporated the RFC he described in his decision,

the ALJ determined that Lonek was able to perform the jobs of

recreation attendant, companion, and price marker.

III. Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

a disability.

(a)(1)(A)-(D). The only question

in this case is whether the ALJ correctly determined that Lonek

was not under a disability from April 1, 2001, through December

29, 2014.

To decide whether a claimant is disabled for the purpose of

determining eligibility for DIB, an ALJ is required to employ a

five-step sequential evaluation process. See

.

The steps are: 1) if the [claimant] is engaged in

8 substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v. Barnhart,

(1st Cir. 2001) (citing

, which outlines the same five-step process as

the one prescribed in

).

The claimant bears the burden of proving that she is

disabled. See Bowen v. Yuckert,

(1987). She

must do so by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

(D. Mass. 1982)). Finally,

[i]n assessing a disability claim, the [Acting Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the claimant or other witness; and (3) the [claimant]’s educational background, age, and work experience.

Mandziej,

(citing Avery v. Sec’y of HHS,

(1st Cir. 1986); Goodermote v. Sec’y of HHS, 690

(1st Cir. 1982)).

B. Lonek’s Claims

Lonek claims that the ALJ committed four reversible errors:

(1) failing to properly consider her fibromyalgia; (2)

improperly discounting Dr. Kunz’s opinion; (3) relying upon

flawed testimony from the VE at step 5; and (4) failing to

consult with a medical advisor to establish the onset date of

her alleged disability.8 None of those claims has merit. I

consider each in turn.

1. Consideration of Fibromyalgia

Lonek begins by claiming that “[a]t Step 2 of the analysis,

the [Acting] Commissioner finds that plaintiff has several

8 Claimant’s memorandum of law also includes a section titled: “The Commissioner’s Decision and Findings were Not Supported by the Record as a Whole or Substantial Evidence.” Doc. no. 7, at 7. But rather than identifying any particular finding that she claims to have been inadequately supported, claimant merely lists various pieces of raw medical evidence and subjective complaints that she says the ALJ should have considered but did not. A mere laundry list of allegedly overlooked evidence is no substitute for an argument that identifies a particular legal error that allegedly resulted from the ALJ’s failure to consider a particular piece of evidence. For example, in Taylor v. Schweiker,

(7th Cir. 1984), a case on which claimant relies, the court pointed out the ALJ’s “errors in dealing with the material contained in the record,”

, in the context of remanding the case because it was unable to conclude that the ALJ’s step 2 finding was supported by substantial evidence, see

.

10 severe impairments, including but not limited to fibromyalgia;

however [he] does not further evaluate or develop the evidence

of the plaintiff’s medically determinably impairment of

fibromyalgia pursuant to SSR 12-2p.” Cl.’s Mot., doc. no. 7, at

5 (citing Social Security Ruling (“SSR”) 12-2P,

(S.S.A. July 25, 2012)). Lonek’s first claim has much in common

with the claim I found to be meritless in Diaz v. U.S. Social

Security Administration, Acting Commissioner, No. 14-cv-137-PB,

(D.N.H. Sept. 14, 2015). There, as here, the

ALJ found fibromyalgia to be a severe impairment at step 2, see

id. at *2, and the claimant “offer[ed] no specific explanation

of how the ALJ actually deviated from SSR 12-2P, providing

instead only vague and conclusory assertions that the ALJ

somehow failed to ‘properly consider the symptoms of

fibromyalgia as described in SSR 12-2p,’” id. (quoting the

record). Because Lonek has not made “any showing that the

[ALJ’s] decision is materially inconsistent with the

regulation,” id. (citing Anderson v. Colvin, No. 14-cv-15-LM,

, at *1, *11 (D.N.H. Nov. 4, 2014)), her first

claim fails.

2. Evaluation of Dr. Kunz’s Opinion

Lonek’s second claim is somewhat difficult to parse. She

11 frames that claim this way:

The ALJ did not consider opinions and statements from all medical sources; rather he relied on sources that did not have a relationship with the plaintiff, he gave weight only to selective records without any or with defective reasoning, he relied on defective evidence and/or ignored evidence. The ALJ improperly discounted the opinion of plaintiff’s treatment providers who have the most familiarity with the plaintiff and her medical conditions. Dr. Kunz opined that plaintiff has fibromyalgia after ruling out numerous other diagnoses. That opinion along with other provider’s [sic] references to fibromyalgia and pain throughout the record go largely ignored by the ALJ, and there is no explanation provided for the reasons the Decision ignored this evidence by failing to fully evaluate and develop this diagnosis and evidence, much less even mention some of the evidence.

Cl.’s Mot., doc. no. 7, at 7. While the precise nature of

Lonek’s claim is not perfectly clear, I construe it to be a

claim that the ALJ failed to give proper weight to Dr. Kunz’s

opinion.

Lonek appears to claim that the ALJ erred by largely

ignoring Dr. Kunz’s opinion that she had fibromyalgia. But, at

step 2, the ALJ found that claimant’s fibromyalgia was a severe

impairment. It is thus difficult to see how he ignored Dr.

Kunz’s opinion. Moreover, if Lonek’s actual claim is that rather than

ignoring Dr. Kunz’s diagnosis of fibromyalgia, the ALJ erred by failing to

give the proper amount of weight to the functional limitations Dr. Kunz

identified in his RFC form, that claim fails as well.

12 Generally speaking, the Social Security Administration, and

by an extension, an ALJ, should give more weight to medical

opinions from a claimant’s treating physician(s) than to the

opinions of medical sources who have merely examined a claimant,

and should give the least amount weight to the opinions of

sources who have neither treated nor examined a claimant. See

(c). To that end, the regulations provide

that

[i]f [an ALJ] find[s] that a treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s] impairment(s) is well–supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record, [the ALJ] will give it controlling weight.

(c)(2). Because the ALJ did not give

controlling weight to Dr. Kunz’s opinion, he was obligated to

determine the amount of weight to give that opinion by

considering: (1) the length of Lonek’s treatment relationship

with Dr. Kunz and the frequency of examination; (2) the nature

and extent of the treatment relationship; (3) the supportability

of Dr. Kunz’s opinion; (4) the consistency of that opinion with

the record as a whole; (5) Dr. Kunz’s medical specialization;

and (6) any other factors that may support or contradict the

opinion. See

(c)(2)-(6).

13 In his decision, the ALJ considered both Dr. Kunz’s twice-

expressed opinion that Lonek could only work 20 hours per week

and the limitations Dr. Kunz identified in his RFC form. The

ALJ gave little weight to those opinions because: (1) Dr. Kunz

provided no explanation for his 20-hour-per week limitation when

he first gave that opinion in May of 2013; (2) the limitations

in the RFC form “appear[ed] to be based largely on subjective

complaints of pain and fatigue that are not corroborated

elsewhere in the treatment records,” Tr. 251; and (3) at a

physical examination several months after Dr. Kunz completed his

RFC form, Lonek did not report symptoms consistent with Dr.

Kunz’s limitations, and those limitations were also not

supported by the objective findings resulting from that

subsequent examination. By identifying deficiencies in the

areas of supportability and consistency, the ALJ fulfilled his

obligation, under

(c)(2), to provide good

reasons for his decision to give little weight to Kunz’s

opinion.

The applicable regulations provide that “[t]he more a

medical source presents relevant evidence to support an opinion,

particularly medical signs and laboratory findings, the more

weight [an ALJ] will give that opinion.”

404.1527(c)(3). Dr. Kunz based the functional limitations he

identified on diagnoses of fibromyalgia and back pain. When

asked to “state all clinical findings and any medical test

results and/or laboratory results,” Tr. 1188, Dr. Kunz said only

this: “widespread joint [and] muscle tenderness,”

With

respect to Dr. Kunz’s first diagnosis, I recognize that

“musculoskeletal and neurological examinations are normal in

fibromyalgia patients, and [that] there are no laboratory

abnormalities.” Johnson v. Astrue,

(1st Cir.

2009) (quoting Harrison’s Principles of Internal Medicine 2056

(16th ed. 2005)). I also acknowledge that “‘a patient’s report

of complaints, or history, is an essential diagnostic tool’ in

fibromyalgia cases, and a treating physician’s reliance on such

complaints ‘hardly undermines his opinion as to [the patient’s]

functional limitations.’” Johnson,

(quoting

Green–Younger v. Barnhart,

(2d Cir. 2003)).

But Dr. Kunz did not report subjective complaints consistent

with the diagnostic criteria described in SSR 12-2P. With

respect to Dr. Kunz’s second diagnosis, back pain, he identified

no medical signs or laboratory findings that link that condition

to the functional limitations he identified. Thus, I conclude

15 that lack of supportability is a sufficient reason for the ALJ’s

decision to discount Dr. Kunz’s opinion.

The applicable regulations also provide that “[g]enerally,

the more consistent an opinion is with the record as a whole,

the more weight we will give to that opinion.”

(c)(4). The ALJ observed that Dr. Kunz’s opinion was

inconsistent with the symptoms claimant reported to her

neurologist during an office visit about five months after Dr.

Kunz rendered his opinion. And, indeed, the note generated by

that office visit does not document symptoms consistent with Dr.

Kunz’s opinion, and it does not even mention fibromyalgia under

the heading “problems” or the heading “diagnoses.” For her

part, claimant asserts that “other provider’s [sic] references

to fibromyalgia and pain throughout the record go largely

ignored by the ALJ,” Cl.’s Mot., doc. no. 7, at 7, but she does

not identify any particular reference that, in her view, is

consistent with Dr. Kunz’s opinion.9 As with the question of

9 In a section of her motion titled “The Commissioner’s Decision and Findings Were Not Supported by the Record as a Whole or Substantial Evidence,” doc. no. 7, at 7, claimant lists several dozen references to various types of pain that appear in her medical records, but the only references to fibromyalgia she cites are those in Dr. Kunz’s April 18, 2014, office note and RFC form.

16 supportability, inconsistency with the record as a whole is also

a sufficient reason for discounting Dr. Kunz’s opinion.

To summarize, substantial evidence supports the ALJ’s

determination that Dr. Kunz’s opinion was entitled to little

weight because it was both inadequately supported and

inconsistent with the record as a whole.

3. Evidence from the VE

Lonek’s third claim is that the ALJ erred in relying on the

testimony of the VE because the VE’s “testimony and evidence did

not identify jobs that were specifically available during the

relevant time period, from the alleged date of onset in 2001 to

the date last insured of 2015.” Cl.’s Mot., doc. no. 7, at 10.

On October 2, 2014, which falls between claimant’s alleged onset

date (April 1, 2001) and her date last insured (June 30, 2015),

the VE testified that a person with claimant’s RFC could perform

the jobs of recreation attendant, companion, and price marker.

He further explained that a substantial number of each of those

jobs existed at that time in New Hampshire and in the nation as

a whole.10 Thus, notwithstanding claimant’s assertion to the

10Specifically, the VE testified that there were 150 recreation attendant jobs in New Hampshire and 30,000 nationally, 120 companion jobs in New Hampshire and 31,000 nationally, and 160 price marker jobs in New Hampshire and

17 contrary, the VE did identify jobs that were available during

the relevant time period. Moreover, if Lonek’s actual claim is

that the ALJ’s decision is not supported by substantial evidence

because the VE’s testimony only applies to a single point rather

than some span of time, she provides no legal authority for that

proposition, and I am aware of none. Accordingly, Lonek’s third

argument is without merit.

4. Lack of Consultation with a Medical Advisor

Lonek’s final claim is that the ALJ committed reversible

error by failing to consult a medical advisor to aid him in

establishing an onset date for her disability. In claimant’s

words:

This matter involves an alleged onset date of April 1, 2001, more than fifteen (15) years ago. In matters such as this where the plaintiff must establish disability by a date far in the past and where there is a lack of adequate medical evidence as of the plaintiff’s onset date, SSR 83-20 applies and requires the ALJ to infer an onset date and call on a medical advisor to assist in doing so.

Throughout the Decision, there is little reference to the plaintiff’s fibromyalgia, and the evidence available prior to or around the plaintiff’s date last insured is arguably ambiguous.

. . . .

Further, the record in this matter does not

33,000 nationally. See Tr. 176-77.

18 unambiguously establish that the plaintiff is not disabled as of her date last insured. . . .

As this court held in the Fischer case, at the very least, the record in this matter does not unambiguously establish that Ms. Lonek was not disabled as of her date last insured; thus, the ALJ is required to consult with a medical advisor to assist in establishing an onset date.

The ALJ’s refusal to call on the services of a medical advisor and comply with SSR 83-20 was in error and warrants reversal of the Decision.

Cl.’s Mot., doc. no. 7, at 11-12 (citing SSR 83-20,

(S.S.A. 1983); Fischer v. Colvin, No. 13-cv-00463-PB,

(D.N.H. Oct. 30, 2014), vacated by

(2016)). Respondent argues that

[b]ecause the ALJ . . . made an express finding that Plaintiff was not disabled as of the date of his decision – which was during the period of insurability – determining whether disability began before the claimant’s [date last insured] was simply not an issue in this case [and] because the ALJ . . . made an express finding that Plaintiff was not disabled as of the date of his decision, SSR 83-20 has no application here.

Resp’t’s Mem. of Law, doc. no. 10-1, at 8-9. Respondent has the

better argument.

Lonek’s claim appears to be rooted in her allegation that

she became disabled on April 1, 2001, and her theory that the

ambiguity of the medical records from that time required the ALJ

to consult with a medical advisor to establish an onset date.

19 But unlike the claimant in Fischer, who applied for DIB in 2012,

who had a date last insured of March 31, 1998, and who claimed

to have become disabled on October 31, 1995, see

,

Lonek was insured for DIB for approximately six months after the

ALJ rendered his decision. Thus, I am hard pressed to see how

Lonek had any need to establish that she became disabled in

2001. Not only does it appear that Lonek had no need to

establish a 2001 onset date, it is not at all clear how she

could possibly benefit from doing so, because even if she were

to establish that onset date, she could not collect benefits for

any disability she had before January 29, 2012, which is 12

months prior to the date on which she filed her application.

See

(c) (establishing 12-month window for

retroactive disability insurance benefits).11 In sum, under the

11A claimant can receive benefits for a period of disability in the past that has ended. See

(b). But given the facts of this case, Lonek would not qualify for such benefits. The ALJ determined that Lonek has not been under a disability at any time between April 1, 2001, and January 29, 2014. Even assuming that there is not substantial evidence for a lack of disability for that entire span, Dr. Nault’s RFC assessment is substantial evidence supporting a finding that Lonek has not been disabled since March 2, 2007. Even if Lonek could establish a closed period of disability that ended prior to that date, any such disability would have ended too long ago for Lonek to collect benefits for it. See

(b).

20 circumstances of this case, claimant’s invocation of SSR 83-20

appears to be a red herring.

That conclusion is further demonstrated by the argument in

Lonek’s motion. While she speaks of her need to “establish

disability by a date far in the past,” Cl.’s Mot., doc. no. 7,

at 11, she goes on to assert that “the evidence available prior

to or around [her] date last insured is arguably ambiguous,” id.

at 12. The problem is that her date last insured was not far in

the past; she was still insured when the ALJ made his decision.

Thus, in reality, her claim is not that the ALJ erred by failing

to consult with a medical advisor to infer an onset date but,

rather, that he erred by failing to consult with a medical

advisor to help him resolve conflicts in the evidence before him

regarding whether claimant was disabled at the time he rendered

his decision. There is nothing in SSA 83-20 that requires an

ALJ confronted with conflicting evidence such as the two RFC

assessments in this case to consult with a medical advisor to

help him or her resolve the conflict. Rather, with respect to

determining whether a claimant is disabled, ALJs are expressly

empowered to resolve conflicts in the evidence. See Irlanda

Ortiz,

.

The bottom line is this. While Lonek claims to have become

21 disabled in 2001, there is nothing about the circumstances of

this case that compelled the ALJ to consult with a medical

advisor. For that reason, Lonek’s fourth claim fails.

IV. Conclusion

Because the ALJ committed neither a legal nor a factual

error in evaluating Lonek’s claim, see Manso-Pizarro,

, her motion for an order reversing the Acting Commissioner’s

decision, doc. no. 7, is denied, and the Acting Commissioner’s

motion for an order affirming her decision, doc. no. 10, is

granted. The clerk of the court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

June 12, 2017

cc: Christine Woodman Casa, Esq. Robert J. Rabuck, Esq. T. David Plourde, Esq.

22