UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Torrey Laberge

v. Civil No. 18-cv-257-JL Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Torrey Laberge moves to reverse the decision of the Acting

Commissioner of the Social Security Administration (“SSA”) to

deny his applications for Social Security disability insurance

benefits, or DIB, under Title II of the Social Security Act,

, and for supplemental security income, or SSI,

under Title XVI,

. The Acting Commissioner, in

turn, moves for an order affirming her decision. For the

reasons that follow, the decision of the Acting Commissioner, as

announced by the Administrative Law Judge (“ALJ”), is affirmed.

I. Standard of Review

The applicable standard of review 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) (setting out standard of review for decisions

on claims for DIB); see also

(c)(3) (applying

§ 405(g) to SSI decisions). 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 standard of review that applies when an

applicant claims that an ALJ made a factual error,

[s]ubstantial-evidence review is more deferential than it might sound to the lay ear: though certainly “more than a scintilla” of evidence is required to meet the benchmark, a preponderance of evidence is not. Bath Iron Works Corp. v. U.S. Dep’t of Labor,

(1st Cir. 2003) (internal quotation marks omitted). Rather, “[a court] must uphold the [Acting Commissioner’s] findings . . . if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [her] conclusion.” Rodriguez v. Sec’y of Health & Human Servs.,

(1st Cir. 1981) (per curiam).

Purdy v. Berryhill,

(1st Cir. 2018).

In addition, “‘issues of credibility and the drawing of

permissible inference from evidentiary facts are the prime

responsibility of the [Acting Commissioner],’ and ‘the

resolution of conflicts in the evidence and the determination of

the ultimate question of disability is for her, not for the

doctors or for the courts.’”

(quoting Rodriguez,

2 at 222). Thus, 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).

II. Background

The parties have submitted a Joint Statement of Material

Facts. That statement, document no. 9, is part of the court’s

record and is summarized here, not repeated in full.

Laberge stopped working full time on March 31, 2016, when

he was laid off from his job as an x-ray inspector due to the

closure of the factory where he had worked. When he was laid

off, he was 40 years old.

Claimant has received diagnoses of lumbosacral spondylosis

without myelopathy,1 cervical radiculopathy and myofascial pain

syndrome,2 bilateral carpal tunnel syndrome, C. difficile

1 Spondylosis is “[a]nkylosis of the vertebra; often applied nonspecifically to any lesion of the spine of a degenerative nature.” Stedman’s Medical Dictionary 1813 (28th ed. 2006). Ankylosis is “[s]tiffening or fixation of a joint as a result of a disease process, with fibrous or bony union across the joint; fusion.” Id. at 95. Myelopathy is a “[d]isorder of the spinal cord.” Id. at 1270.

2 Radiculopathy is a “[d]isorder of the spinal nerve roots.” Stedman’s, supra note 1, at 1622. Myofascial means “[o]f or relating to the fascia surrounding and separating muscle tissue.” Id. at 1272. Fascia is “[a] sheet of fibrous tissue 3 diarrhea, and celiac disease. His treatment has included

radiofrequency lesioning, medication (Tramadol, cyclobenzaprine,

Nucynta, gabapentin, oxycodone, Zoloft, Klonopin, and

Wellbutrin), trigger-point injections, medial branch block

injections, physical therapy, wrist splints, and carpal tunnel

release surgery. Once, a physician prescribed compression

stockings as treatment for varicose veins in claimant’s lower

legs, but he could not afford to purchase them.

In May of 2016, Laberge applied for DIB and SSI, claiming

that he became disabled on May 1, 2014, as a result of carpel

tunnel syndrome in both hands, back pain, a tilted pelvis, hip

pain, and bursitis in his right shoulder and hip. He later

revised his alleged onset date to March 31, 2016, which is the

day he was laid off from his job as an x-ray inspector.

In September of 2016, Dr. Phyllis Sandell, a non-examining

state-agency consultant, reviewed Laberge’s medical records, and

based upon that review, she assessed his physical residual

functional capacity (“RFC”).3 According to Dr. Sandell, Laberge

that . . . encloses muscles and groups of muscles and separates their several layers and groups.” Id. at 700.

3 “[R]residual functional capacity ‘is the most [a claimant] can still do despite [his or her] limitations.’” Purdy,

n.2 (quoting

(a)(1), a regulation governing claims for SSI that is worded identically to

(a), which governs claims for DIB) (brackets in the original).

4 could lift and/or carry 25 pounds frequently and 50 pounds

occasionally, push and/or pull the same amount of weight he

could lift and/or carry, stand and/or walk (with normal breaks)

for a total of about six hours in an eight-hour workday, and sit

(with normal breaks) for a total of about six hours in an eight-

hour workday. She further opined that Laberge needed to

alternate between sitting and standing for five minutes each

hour to relieve pain and discomfort. With respect to postural

activities, Dr. Sandell opined that Laberge had an unlimited

capacity for stooping and kneeling; could frequently balance;

but could only occasionally climb ramps/stairs, climb

ladders/ropes/scaffolds, crouch, and crawl. With respect to

manipulative activities, Dr. Sandell opined that Laberge had an

unlimited capacity for reaching, fingering, and feeling, but had

a limited capacity for handling, with both hands, which she

described as a capacity for only occasional grasping and

twisting, due to mild carpal tunnel syndrome. Finally, Dr.

Sandell opined that Laberge had no visual, communicative, or

environmental limitations.

In June of 2017, Christopher Laurent, an advanced practice

registered nurse (“APRN”) who had treated Laberge, completed a

Physical Impairment Medical Source Statement in which he offered

opinions on Laberge’s physical RFC. Mr. Laurent did not have a

supervising physician, but his Medical Source Statement was co-

5 signed by Dr. John Ford.4 While Dr. Ford neither treated Laberge

nor supervised Mr. Laurent, Mr. Laurent reported that he had

discussed Laberge’s condition and his opinions with Dr. Ford.

Mr. Laurent indicated that he had been treating Laberge for

four years, and he identified diagnoses of osteoarthritis in

both hips, chronic ankle pain, disc disease,5 and celiac disease.

Mr. Laurent does not appear to have listed carpal tunnel

syndrome as a diagnosis on his Medical Source Statement,

although such a diagnosis does appear in some, but far from all,

of Mr. Laurent’s progress notes.

As for Laberge’s physical RFC, Mr. Laurent opined that

Laberge would constantly experience pain or other symptoms

severe enough to interfere with the attention and concentration

needed to perform even simple work tasks, but also opined that

Laberge was capable of performing low stress jobs. He further

opined that Laberge could: (1) walk one block without rest or

severe pain; (2) sit for 20 minutes at one time before needing

to get up; (3) stand for 20 minutes at one time before needing

to sit down; (4) sit for less than two hours total in an eight-

4 On the Medical Source Statement, the name of Mr. Laurent’s co-signer is difficult to decipher. In his motion to reverse, claimant the co-signer as “Dr. Foes,” but in their Joint Statement, the parties refer to “Dr. Ford.” The court adopts that spelling.

5 Mr. Laurent applied an adjective to the term “disc disease,” but it is indecipherable. See Tr. 528. 6 hour workday; and (5) stand/walk for less than two hours total

in an eight-hour workday. He further opined that Laberge: (1)

needed to walk around for 10 minutes every 30 minutes: (2)

needed a job that permits shifting positions at will from

sitting, standing, or walking; and (3) needed a job that permits

unscheduled 20-minute breaks every one to two hours. In

addition, Mr. Laurent opined that Laberge could occasionally

lift and carry less than 10 pounds, could rarely lift 10 pounds,

and could never lift 20 pounds or more. With respect to

postural activities, Mr. Laurent opined that Laberge could

occasionally look down, turn his head, look up, hold his head in

a static position, twist, stoop, and crouch, but could only

occasionally climb ladders or stairs. However, Mr. Laurent

opined that Laberge had no limitations on his abilities for

reaching, handling, or fingering. Finally, Mr. Laurent opined

that on average, Laberge was likely to be absent from work more

than four days per month as a result of his impairments or

treatment for them.

The SSA denied Laberge’s applications for DIB and SSA.

Thereafter, he received a hearing before an ALJ. At the

hearing, the ALJ took testimony from a vocational expert (“VE”),

and posed several hypothetical questions to her. In the first

one, the ALJ asked the VE

7 to assume an individual of the same age, education and work background as the claimant who is capable of the medium exertion level with the ability to lift and carry up to 50 pounds occasionally, 25 pounds frequently, who can stand and walk up to six hours per day and sit up to six hours per day but must alternate between sitting and standing for five minutes per hour as needed to relieve pain, who can frequently balance, occasionally climb, occasionally crouch, crawl and occasionally grasp and twist bilaterally with the upper extremities.

Administrative Transcript (hereinafter “Tr.”) 68. The VE

testified that a person with those limitations could not perform

claimant’s past work as a bartender, bench inspector,

construction worker, welder, or utility worker, but could

perform the medium-duty jobs of industrial cleaner and kitchen

helper and could also perform the light-duty jobs of furniture-

rental clerk, storage-facility rental clerk, and recreation-

facility attendant. The ALJ followed up with several additional

hypothetical questions, none of which are relevant to this

appeal. The VE also testified that the customary tolerance for

absenteeism is “no more than one absence per month.” Tr. 72.

After Laberge’s hearing, the ALJ issued a decision. In it,

she found that Laberge had three severe impairments: lumbar

spondylosis, osteoarthritis of the ankles and hips, and carpal

tunnel syndrome. The ALJ further found that none of claimant’s

impairments, alone or in combination, met or medically equaled

the severity of any impairment on the SSA’s list of impairments

8 that are per se disabling. Then, the ALJ assessed Laberge’s

physical RFC this way:

[T]he claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except that he requires the opportunity to alternate sitting and standing for five minutes per hour as needed to relieve pain. He can frequently balance, occasionally climb ramps/stairs/ladders/ ropes/scaffolds, occasionally crouch, and occasionally crawl. He can occasionally grasp and twist with the upper extremities.

Tr. 20. In reliance upon the VE’s testimony, the ALJ determined

that Laberge could not perform his past work, but retained the

RFC to perform the jobs of industrial cleaner, kitchen helper,

furniture-rental clerk, storage-facility rental clerk, and

recreational-facility attendant. Consequently, she found that

Laberge was not under a disability from March 31, 2016, through

the date of her decision, which was August 24, 2017.

III. Discussion

A. The Legal Framework

To be eligible for DIB, a person must: (1) be insured for

that benefit; (2) not have reached retirement age; (3) have

filed an application; and (4) be under a disability.

(a)(1)(A)-(D). To be eligible for SSI, a person must be

aged, blind, or disabled, and must meet certain requirements

pertaining to income and assets.

(a). The only

question in this case is whether the ALJ correctly determined

9 that Laberge was not under a disability from March 31, 2016,

through August 24, 2017.

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI, an ALJ is

required to employ a five-step sequential evaluation process.

See

(DIB) & 416.920 (SSI).

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

Purdy,

(quoting Seavey v. Barnhart,

(1st Cir. 2001); citing

).

At the first four steps in the sequential evaluation

process, the claimant bears both the burden of production and

the burden of proof. See Purdy,

(citing Freeman

v. Barnhart,

(1st Cir. 2001)); see also Bowen

v. Yuckert,

(1987). He must prove he is

disabled by a preponderance of the evidence. See Mandziej v.

10 Chater,

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

Schweiker,

(D. Mass. 1982)).6 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,

(1st Cir. 1982)).

B. Laberge’s Claims

Laberge claims that the ALJ erroneously determined his RFC

by improperly: (1) weighing the medical-opinion evidence; and

(2) evaluating his statements about his symptoms. Neither claim

has merit.

1. Medical Opinions

In the decision that resulted from Laberge’s applications

for DIB and SSI, the ALJ gave great weight to Dr. Sandell’s

opinions and little weight to Mr. Laurent’s opinions. That,

according to claimant, was a reversible error. The court begins

6 At step five, the burden of proof shifts to the Acting Commissioner, see Seavey,

(citing Arocho v. Sec’y of HHS,

(1st Cir. 1982)), but the Acting Commissioner’s step-five determination is not at issue here, so there is no need to describe the mechanics of step five. 11 with the relevant legal principles and then turns to the ALJ’s

evaluations of the opinions at issue.

a. Legal Principles

For applications filed before March 27, 2017, the

applicable regulations outline a hierarchy that, generally

speaking, gives the greatest weight to medical opinions from

treating sources,7 gives less weight to medical opinions from

sources who have examined but not treated a claimant, and gives

the least weight of all to medical opinions from sources who

have neither treated nor examined a claimant. See

(c)(1)-(2) & 416.927(c)(1)-(2).8 “Medical opinions are

statements from acceptable medical sources that reflect

judgments about the nature and severity of [a claimant’s]

impairments . . . .”

(a)(1) &

416.927(a)(1) (emphasis added). Under the regulations in force

when the ALJ issued her decision in this case, the category

“acceptable medical source” included physicians, see

(a)(1) (2016) & 416.913(a)(1) (2016), but excluded

7 Under certain circumstances, the opinion of a treating source may be entitled to controlling weight, see

(c)(2) & 416.927(c)(2), but the question of controlling weight does not arise in this case because the record includes no opinion from an acceptable medical source who has treated Laberge.

8 For claims filed on or after March 27, 2017, different regulations apply. See

.1520c & 416.920c.

12 APRNs, see

(d)(1) (2016) & 416.913(d)(1)

(2016).9 Finally, “[t]he fact that a medical opinion is from an

‘acceptable medical source’ is a factor that may justify giving

that opinion greater weight than an opinion from a medical

source who is not an ‘acceptable medical source.’” Social

Security Ruling (“SSR”) 06-03p,

, at *5 (S.S.A.

Aug. 9, 2006).

To determine the amount of weight to give either an opinion

from an acceptable medical source or an opinion from a medical

source who is not an acceptable medical source, see

(f) & 416.927(f), a decisionmaker should consider the

following factors: (1) the length of the treatment relationship

and the frequency of examination; (2) the nature and the extent

of the treatment relationship; (3) the extent to which the

source identifies medical signs and laboratory findings that

support his or her opinion; (4) the opinion’s consistency with

the record as a whole; (5) the source’s areas of specialization;

and (6) other factors, including the source’s familiarity with

the SSA’s disability programs. See

(c)(2)-

(6) & 416.927(c)(2)-(6).

9 For claims filed on or after March 27, 2017, an APRN does qualify as an acceptable medical sources when rendering an opinion on an “impairment[] within his or her licensed scope of practice.”

(a)(7) & 416.902(a)(7). 13 b. Mr. Laurent’s Opinions

The ALJ gave “little weight” to Mr. Laurent’s opinions and

focused, in particular, on his opinion that Laberge’s experience

of pain would constantly interfere with the attention and

concentration necessary to perform even simple work tasks.10 The

ALJ gave Mr. Laurent’s opinions little weight because: (1) his

treatment notes do not support them; and (2) he is not an

acceptable medical source. Laberge claims that the ALJ erred in

because: (1) there was no necessary inconsistency between Mr.

Laurent’s treatment notes and his opinions; and (2) Mr.

Laurent’s statement that Dr. Ford agreed with his findings

“implie[d] that Dr. [Ford] had the opportunity to review the

treatment records of Mr. Laurent and others in their practice

before indicating his agreement with Mr. Laurent’s opinion,”

Cl.’s Mem. of Law (doc. no. 8-1) 7.

It is undisputed that Mr. Laurent is not an acceptable

medical source, and that is a factor that justifies giving his

opinions less weight than those of Dr. Sandell, who is an

acceptable medical source. See SSR 06-03p,

, at

*5. Claimant attempts to overcome Mr. Laurent’s status as a

While the VE testified that another of Mr. Laurent’s 10

limitations, i.e., more than four absences from work each month, would preclude any employment, there does not appear to be any testimony from the VE concerning the degree to which Mr. Laurent’s limitation on attention and concentration might affect a person’s employability. 14 non-acceptable medical source by pointing to Mr. Laurent’s

statement that he had discussed claimant’s case with Dr. Ford,

which, in claimant’s view, implies that Dr. Ford had reviewed

his treatment records.

However, even if the court were to assume, as claimant

suggests, that Dr. Ford had reviewed his treatment records

before co-signing Mr. Laurent’s Medical Source Statement,

claimant does not say how that would increase the amount of

weight the ALJ should have given the opinions expressed that

statement. Because claimant does not assert that Dr. Ford ever

treated him, this is not a situation, such as that in Nichols v.

U.S. Social Security Administration, Acting Commissioner, where

the opinion of a licensed mental-health clinician, a non-

acceptable medical source, was entitled to deference under the

so-called treating-source rule because it had been co-signed by

an acceptable medical source who had also treated the claimant,

see No. 16-cv-443-PB,

, at *10, n.9 (D.N.H. Mar.

13, 2018). Rather, this case is more akin to Coppola v. Colvin,

No. 12-cv-492-JL,

(D.N.H. Feb. 21, 2014). In

that case, the signature of an acceptable medical source did not

transform the opinion of a non-acceptable medical source, a

licensed mental-health counselor, into the opinion of a treating

source where there was no evidence that the co-signing doctor,

who was an acceptable medical source, had ever treated the

15 claimant or even examined him. See id. at *9.11 In short, there

is nothing about Dr. Ford’s signature on Mr. Laurent’s Medical

Source Statement that calls into question the ALJ’s decision to

discount Mr. Laurent’s opinions on grounds that he is not an

acceptable medical source. Accordingly, the court turns to the

ALJ’s second reason for discounting Mr. Laurent’s opinions.

In support of her finding that Mr. Laurent’s clinical

records did not support the limitations in his opinion, the ALJ

wrote:

For instance, while he alleged that the claimant “constantly” has symptoms that interfere with the attention and concentration needed to perform even simple work tasks, his clinic notes from November 2016 indicate that the claimant’s medication kept “all of his chronic pain issues at bay.”

Tr. 22. She further observed that “in March of 2017, [Mr.

Laurent] noted that the claimant admitted to an ability to work

while taking medication and he documented the claimant’s report

that his pain was only at 3/10 with this treatment.” Id. In

response, claimant quotes from the two treatment notes cited by

the ALJ and argues:

11 See also Allen v. Colvin, C.A. No. 13-781L,

, at *11 (D.R.I. Mar. 3, 2015) (“It is well-settled that neither the physician’s sign-off on each encounter that the patient had with the physician’s assistant nor the physician’s sign-off on the physician assistant’s opinion morphs the assistant into an acceptable medical source.”) (citing Lobov v. Colvin, Civ. No. 12–40168–TSH,

, at *14 n.8 (D. Mass. June 23, 2014); Payne v. Astrue, No. 3:10–cv–1565 (JCH),

, at *4–5 (D. Conn. June 21, 2011)). 16 The ALJ’s findings regarding inconsistency between Mr. Laurent’s opinion and his November 2016 and March 2017 treatment notes are erroneous. There is no necessary inconsistency between Mr. Laurent’s indication that Nucynta pain medication “seem[ed] to keep his chronic pain issues at bay” and his opinion that pain would nonetheless constantly interfere with Mr. Laberge’s ability to sustain attention and concentration to [perform] simple work-related tasks. There is also no necessary inconsistency between Mr. Laurent’s opinion regarding limitations caused by chronic pain and his indication in March of 2017 that Mr. Laberge was “able to work a little bit more” with oxycodone medication and that although his pain level was “about a 3/10” with the medication, he was unable to get out of bed due to pain without the medication.

Cl.’s Mem. of Law (doc. no. 8-1) 6-7 (emphasis added).

Laberge’s claim misses the mark. Assuming, favorably to

claimant, that there is no necessary inconsistency between Mr.

Laurent’s opinion and his treatment notes, that is not the

standard. “[T]he resolution of conflicts in the evidence . . .

is for [the ALJ], not for . . . the courts,” Purdy,

, and for that reason, the court “must uphold the [ALJ’s]

conclusion, even if the record arguably could justify a

different conclusion, so long as it is supported by substantial

evidence,” Tsarelka,

. Thus, even if Mr.

Laurent’s opinion is not necessarily inconsistent with his

treatment records, that provides no basis for reversing the

ALJ’s decision. Rather, the ALJ’s decision is subject to

reversal only if no reasonable mind could accept her conclusion

that Mr. Laurent’s opinions were inconsistent with his treatment

17 records. Claimant does not make such an argument, and the court

concludes that a reasonable mind could accept the proposition

that an opinion that claimant suffered from disabling pain is

inconsistent with treatment notes reporting that medication kept

claimant’s pain “at bay,” and kept it to a level of three on a

ten-point scale. In other words, the ALJ’s finding that Mr.

Laurent’s opinions were not supported by his treatment notes is

itself supported by substantial evidence.

Because substantial evidence supports the ALJ’s

determination that Mr. Laurent’s opinions were not supported by,

or were inconsistent with, his treatment records, and because

the ALJ permissibly relied upon Mr. Laurent’s status as a non-

acceptable medical source, her evaluation of Mr. Laurent’s

opinions gives the court no cause to reverse her decision.

c. Dr. Sandell’s Opinions

The ALJ gave Dr. Sandell’s September 2016 opinions great

weight, and based her RFC assessment on them. When evaluating

those opinions, the ALJ explained that Dr. Sandell had “reviewed

the medical evidence [on] file and . . . nothing received at

[Laberge’s] hearing support[ed] a worsening in the claimant’s

condition since that date,” Tr. 22. Laberge claims that: (1)

the ALJ committed reversible error by failing to provide “any

specific discussion of the evidence received between the date of

Dr. Sandell’s review and the hearing,” Cl.’s Mem. of Law (doc.

18 no. 8-1) 6; and (2) “August 2016 and September 2016 treatment

notes not reviewed by Dr. Sandell document increasing symptoms

of bilateral numbness and difficulty grasping objects due to

carpel tunnel syndrome, and [he underwent] a subsequent right

carpel tunnel release procedure in December of 2016,”

The

medical records relating to claimant’s carpel tunnel syndrome

that post-date Dr. Sandall’s opinions provide no basis for

reversing the ALJ’s decision.

Claimant argues that medical developments post-dating Dr.

Sandell’s opinions significantly eroded the amount of weight the

ALJ should have given those opinions. These are the applicable

principles:

[A]n opinion of a reviewing consultant does not provide substantial evidence to support an ALJ’s findings if it is based on a “significantly incomplete record.” Alcantara v. Astrue,

(1st Cir. 2007); Padilla v. Barnhart,

(1st Cir. 2006); Avery v. Acting Comm’r, Social Security Admin., [No. 17-cv-443-JD,]

, at *4 (D.N.H. May 24, 2018). A record is not significantly incomplete as long as the new or later evidence does not support greater limitations or is arguably consistent with the earlier assessment by the consultant. Giandomenico v. Acting Comm’r, Social Security Admin., [No. 16-cv-506-PB,]

, at *4 (D.N.H. Nov. 15, 2017). “The ALJ bears the burden of determining and explaining whether missing evidence is material to assessing the claimant’s limitations.” Avery,

, at *4.

Scott v. Berryhill, No. 18-cv-26-JD,

, at *2

(D.N.H. Sept. 11, 2018).

19 For ALJ to carry her burden of showing that evidence post-

dating a state-agency consultant’s opinion does not support

greater limitations than those in the opinion, or is arguably

consistent with the opinion, she cannot merely say that the

record has undergone no material change without explaining her

analysis. See Alcantara,

. While claimant

faults the ALJ for making that error, it is claimant who is

mistaken. Rather than making a conclusory statement that the

record had not changed since Dr. Sandell gave her opinion, the

ALJ: (1) noted claimant’s December 2016 carpal tunnel release

surgery; (2) cited his surgeon’s operative note; and (3) pointed

out the lack of any “records of follow-up treatment after this

procedure,” Tr. 18. Thus, the ALJ did not make the error that

Alcantara warns against and, in fact, she expressly cited some

of the evidence that claimant accuses her of failing to discuss.

Moreover, additions to the record after Dr. Sandell’s

opinion would seem, if anything, to support lesser rather than

greater limitations than the limitation to occasional grasping

and twisting that Dr. Sandell posited. For example, in the

December 2017 Medical Source Statement by Mr. Laurent, on which

claimant relies, Mr. Laurent opined that Laberge had no

significant limitations on reaching, handling, or fingering.

That would suggest an improvement in claimant’s carpal tunnel

20 syndrome since the date on which Dr. Sandell limited her to

occasional grasping and twisting.

In any event, because the ALJ committed no error in

determining that the record post-dating Dr. Sandell’s opinion

did not support limitations greater than those she had

identified, the ALJ did not err by giving great weight to Dr.

Sandell’s opinions.

2. Claimant’s Statements about his Symptoms

In her decision, the ALJ discounted “claimant’s statements

concerning the intensity, persistence and limiting effects of

[his] symptoms,” Tr. 21, explaining that those statements were

“not entirely consistent with the medical evidence and other

evidence in the record,”

According to claimant, the ALJ

erred by: (1) relying primarily upon a lack of objective

medical evidence to discount his statements; (2) determining

that his treatment records did not support his statements, when

his statements were not necessarily inconsistent with his

treatment records; and (3) relying upon his non-compliance with

treatment without considering the reasons for his non-

compliance.12 The court begins by outlining the applicable legal

principles and then turns to Laberge’s claims of error.

12Laberge also claims that “[t]he ALJ’s decision erroneously states that ‘no treating physician described the claimant as presenting with signs of severe pain,’ despite Mr. Laurent’s records to the contrary.” Cl.’s Mem. of Law (doc. no. 21 a. Legal Principles

In 2016, the SSA promulgated SSR 16-3p, which is titled

“Evaluation of Symptoms in Disability Claims.” SSR 16-3p was

issued to “provide[] guidance about how [the SSA] evaluate[s]

statements regarding the intensity, persistence, and limiting

effects of symptoms in disability claims under Titles II and XVI

of the Social Security Act.”

, at *1 (S.S.A.

Mar. 16, 2016).

SSR 16-3p outlines a two-step evaluation process in which a

decisionmaker first determines whether a claimant has a

medically determinable impairment that could reasonably be

expected to produce his alleged symptoms. If a claimant has

such an impairment, the decisionmaker must evaluate the

intensity and persistence of those symptoms, and then determine

the extent to which they limit the claimant’s ability to perform

work-related activities. In making that evaluation, a

decisionmaker should

examine the entire case record, including the objective medical evidence; an individual’s statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual’s case record.

8-1) 10. But Mr. Laurent is an APRN, not a physician, so this claim of error is, itself, erroneous. 22 SSR 16-3p,

, at *4. However, an “ALJ cannot

reject the veracity of the claimant’s own statements . . . based

solely on the conclusion that they are unsubstantiated by the

objective medical evidence.” Tellier v. U.S. Soc. Sec. Admin.,

Acting Comm’r, No. 17-cv-184-PB,

, at *6 (D.N.H.

July 10, 2018) (citing

(c)(2); Clavette v.

Astrue, No. 10-cv-580-JL,

, at *9 (D.N.H. Feb. 7,

2012); Valiquette v. Astrue,

(D. Mass.

2007); see also SSR 16-3p,

, at *4. Finally,

when evaluating the intensity and persistence of a claimant’s

symptoms, the ALJ should consider the so-called Avery factors:

(i) the claimant’s daily activities; (ii) the location, duration, frequency, and intensity of the pain or symptom; (iii) any precipitating and aggravating factors; (iv) the effectiveness of any medication currently or previously taken; (v) the effectiveness of non-medicinal treatment; (vi) any other self-directed measures used to relieve pain; and (vii) any other factors concerning functional limitations or restrictions. 20 C.F.R. 404.1529(c)(3); Childers v. Colvin, [No. 14-cv-270-JL,

], [at] *5 [(D.N.H. July 17, 2015)] (citing Avery v. Sec’y of Health & Human Servs.,

(1st Cir. 1986)).

Tellier,

, at *7. However, “‘an ALJ need not

address every Avery factor’ in [her] written decision for [her]

evaluation to be supported by substantial evidence.”

(quoting Ault v. Astrue, No. 10-cv-553-JL,

, at *5

(D.N.H. Jan. 10, 2012)).

23 b. Lack of Objective Medical Evidence

Laberge faults the ALJ for relying upon the lack of

substantiating objective medical evidence “as the primary basis

for her evaluation of [his] testimony.” Cl.’s Mem. of Law (doc.

no. 8-1) 10 (emphasis added). That is probably a fair

characterization of the ALJ’s decision, but while SSR 16-3p bars

an ALJ from relying “solely on objective medical evidence” to

reject a claimant’s statements about his symptoms,

, at *4 (emphasis added), it goes no further, and plainly

does not specify the degree to which an ALJ must rely upon

factors other than objective medical evidence when rejecting a

claimant’s statements. Because the ALJ in this case did rely

upon other factors, including claimant’s self-reports to his

physicians, his course of treatment, and his compliance with

treatment, the ALJ’s consideration of the objective medical

evidence – a factor she was expressly directed to consider by

SSR 16-3p – provides no basis for reversing her decision.

c. Consideration of the Medical Evidence

Laberge next claims that the ALJ erroneously interpreted

the medical evidence when she wrote:

With respect to the claimant’s allegation of pain after five minutes of standing or 15 minutes of walking, this is not supported by the objective findings or course of treatment documented in the medical record. In fact, in April 2016, Dr. Wiley observed that his examination was “really quite unremarkable.” Further, in August 2016, Nurse

24 Practitioner Laurent documented the claimant’s self- report that his medication was effective in treating his pain complaints. Nurse Practitioner Laurent wrote that the medication “seems to keep all of his chronic pain issues at bay.” Nurse Practitioner Laurent also repeatedly observed that the claimant maintained “good” or normal gait and station.

Tr. 21-22 (citations to the record omitted). Claimant objects

to the foregoing analysis by: (1) pointing to other parts of

Dr. Wiley’s office note; and (2) arguing that neither effective

relief from pain medication nor normal gait and station are

necessarily inconsistent with his statements about his symptoms.

Laberge’s claims amount to nothing more than an invitation to

reweigh the evidence already weighed by the ALJ, an undertaking

that is beyond the scope of a proper review of an ALJ’s

decision. See Purdy,

; Tsarelka,

.

Accordingly, the second part of Laberge’s claim that the ALJ

erroneously evaluated his statements about his symptoms is

unavailing.

d. Non-Compliance with Treatment

Finally, Laberge claims that the ALJ erred by discounting

his statements about his symptoms on grounds that he has not

used compression stockings. On this point, SSR 16-3p explains

that “if [a claimant] fails to follow prescribed treatment that

might improve symptoms, [the SSA] may find the alleged intensity

and persistence of [her] symptoms are inconsistent with the

overall evidence of record,”

, at *8. But, the

25 SSA “will not find [a claimant’s] symptoms inconsistent with the

evidence in the record on this basis without considering the

possible reasons he or she may not comply with treatment or seek

treatment consistent with the degree of his or her complaints.”

Laberge argues that the ALJ failed to properly consider, or

credit, his reason for not using the compression stockings that

his doctor had recommended, i.e., the fact that he could not

afford them. The ALJ probably erred by failing to mention

claimant’s financial inability purchase compression stockings.

See SSR 16-3p,

, at *8. But because the ALJ’s

decision to discount claimant’s statements can be affirmed even

without her comment about the compression stockings,13 a remand

based upon that presumed error would be the definition of an

empty exercise, and when “remand would be an empty exercise, it

is not warranted,” Benoit v. Berryhill, No. 18-cv-61-SM,

, at *6 (D.N.H. Dec. 3, 2018) (citing Newman v.

Berryhill, No. 17-cv-455-LM,

, at *4 (D.N.H. May

15, 2018); Ward v. Comm’r of Soc. Sec.,

(1st

Cir. 2000)).

The ALJ’s observation about compression stockings appears 13

to be surplusage, in that they were recommended as a treatment for varicose veins, a non-severe impairment that claimant does not appear to identify as the cause of pain or any other symptom that impairs his ability to work. 26 IV. Conclusion

Because the ALJ has committed neither a legal nor a factual

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

, his motion for an order reversing the Acting

Commissioner’s decision14 is denied, and the Acting

Commissioner’s motion for an order affirming her decision15 is

granted. The clerk of the court shall enter judgment in favor

of the Acting Commissioner and close the case.

SO ORDERED.

____________________________ Joseph N. Laplante United States District Judge

Dated: December 28, 2018

cc: D. Lance Tillinghast, Esq. Michael L. Henry, Esq.

14 Document no. 8 15 Document no. 10 27