UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Tina Marie Ramsey, Claimant

v. Case No. 18-cv-553-SM Opinion No.

Andrew Saul, 1 Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Tina Marie Ramsey, moves to reverse or vacate the Commissioner’s

decision denying her applications for Disability Insurance

Benefits under Title II of the Social Security Act and

Supplemental Security Income Benefits under Title XVI. See

, 1381-1383c (collectively, the “Act”). The

Commissioner objects and moves for an order affirming his

decision.

For the reasons discussed, claimant’s motion is denied, and

the Commissioner’s motion is granted.

1 On June 17, 2019, Andrew Saul was sworn in as Commissioner of Social Security. He replaced the nominal defendant, Nancy A. Berryhill, who had been Acting Commissioner of Social Security. Factual Background

I. Procedural History.

In September of 2015, claimant filed applications for

Disability Insurance Benefits (“DIB”) and Supplemental Security

Income (“SSI”), alleging that she was disabled and had been

unable to work since January 3, 2015. Claimant was 37 years old

at the time and had acquired sufficient quarters of coverage to

remain insured through December of 2019. Claimant’s

applications were denied and she requested a hearing before an

Administrative Law Judge (“ALJ”).

In May of 2017, claimant, her attorney, 2 and an impartial

vocational expert appeared before an ALJ, who considered

claimant’s applications de novo. After obtaining additional,

post-hearing evidence, the ALJ issued her written decision,

concluding that claimant was not disabled, as that term is

defined in the Act, at any time prior to the date of her

decision. Claimant then requested review by the Appeals

Council. That request was denied. Accordingly, the ALJ’s

denial of claimant’s applications for benefits became the final

decision of the Commissioner, subject to judicial review.

2 At the hearing, claimant was represented by Laurie Smith Young, Esq. She is now represented by D. Lance Tillinghast, Esq.

2 Subsequently, claimant filed a timely action in this court,

asserting that the ALJ’s decision is not supported by

substantial evidence.

Claimant then filed a “Motion for Order Reversing Decision

of the Commissioner” (document no. 7). In response, the

Commissioner filed a “Motion for an Order to Affirm the

Commissioner’s Decision” (document no. 9). Those motions are

pending.

II. Factual Background.

A detailed factual background can be found in claimant’s

statement of facts (document no. 7-2) and the Commissioner’s

statement of facts (document no. 8). Those facts relevant to

the disposition of this matter are discussed as appropriate.

Standard of Review

I. “Substantial Evidence” and Deferential Review.

Pursuant to

(g), the court is empowered “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.” Factual findings and credibility

determinations made by the Commissioner are conclusive if

3 supported by substantial evidence. See

(g),

1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &

Human Services,

(1st Cir. 1991). Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated

Edison Co. v. NLRB,

(1938). Importantly,

then, it is something less than a preponderance of the evidence.

So, the possibility of drawing two inconsistent conclusions from

the evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence. See Consolo v.

Federal Maritime Comm’n.,

(1966). See also

Richardson v. Perales,

(1971).

II. The Parties’ Respective Burdens.

An individual seeking SSI and/or DIB benefits is disabled

under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months.”

(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3)(A).

The Act places a heavy initial burden on the claimant to

establish the existence of a disabling impairment. See Bowen v.

Yuckert,

(1987); Santiago v. Secretary of

4 Health & Human Services,

(1st Cir. 1991). To

satisfy that burden, the claimant must prove, by a preponderance

of the evidence, that her impairment prevents her from

performing her former type of work. See Manso-Pizarro v.

Secretary of Health & Human Services,

(1st Cir.

1996); Gray v. Heckler,

(1st Cir. 1985). If

the claimant demonstrates an inability to perform her previous

work, the burden shifts to the Commissioner to show that there

are other jobs in the national economy that she can perform, in

light of her age, education, and prior work experience. See

Vazquez v. Secretary of Health & Human Services,

(1st Cir. 1982). See also

, 404.1560,

416.912, and 416.960.

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the claimant’s testimony or that of

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). Ultimately, a claimant is disabled only if

her:

5 physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Commissioner’s motion to affirm his

decision.

Background - The ALJ’s Findings

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory

five-step sequential evaluation process described in

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, she first determined that

claimant had not been engaged in substantial gainful employment

since her alleged onset of disability: January 3, 2015. Admin.

Rec. at 15. Next, she concluded that claimant suffers from the

following severe impairments: “arthritis, status post ankle

arthrodesis and hardware removal; degenerative disc disease;

6 left shoulder impingement; obesity; depression; anxiety and

borderline intellectual functioning.”

But, the ALJ

determined that claimant’s impairments, whether considered alone

or in combination, did not meet or medically equal any of the

impairments listed in Part 404, Subpart P, Appendix 1. Admin.

Rec. at 15-18. Claimant does not object to any of those

findings.

Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to perform the exertional demands of

“light” work, subject to the following fairly restrictive

limitations:

she can stand up to four hours, walk up to four hours, and sit up to eight hours, in an eight-hour day. She can occasionally reach overhead and in all other directions with the left (non-dominant) upper extremity, and she can occasionally push and pull with the left (non-dominant) upper extremity. The individual can never climb ladders, ropes, or scaffolds, never crawl and occasionally climb ramps and stairs, balance, stoop, kneel and crouch. The individual should never work around unprotected heights or moving machinery. She can frequently operate a motor vehicle in the course of work. She can frequently work in wet or humid environments. She should avoid more than occasional exposure to extreme cold, extreme heat, dusts, odors, fumes and pulmonary irritants. The individual is limited to no more than a loud noise environment. The individual is further limited to simple, routine tasks in two hour blocks over an eight hour day, with no fast or production rate pace work. She can tolerate occasional simple, decision-making, occasional changes in the work setting and occasional interaction with the public.

7 Admin. Rec. at 18-19. In light of those restrictions, the ALJ

concluded that claimant was not capable of performing any past

relevant work.

. See also

(vocational

expert’s testimony about claimant’s work history as a babysitter

and line cook).

At the final step of the analysis, the ALJ considered

whether there were any jobs in the national economy that

claimant might perform. Relying upon the testimony of the

vocational expert, the ALJ concluded that, notwithstanding

claimant’s exertional and non-exertional limitations, “there are

jobs that exist in significant numbers in the national economy

that the claimant can perform.”

. Consequently, the

ALJ concluded that claimant was not “disabled,” as that term is

defined in the Act, through the date of her decision.

Discussion

Claimant challenges the ALJ’s decision on two grounds,

asserting that she erred by: (1) failing to properly consider

the opinions of one of claimant’s treating sources when

determining claimant’s RFC; and (2) failing to give appropriate

weight to claimant’s testimony about the disabling symptoms and

limitations caused by her impairments.

8 I. Opinion Evidence.

Claimant’s medical history is fairly lengthy and, at more

than 1,300 pages, the record is substantial. But, the parties

focus almost exclusively on the medical opinions rendered by

four medical professionals:

(1) Treating psychologist Donna Novelli, Ph.D., who examined claimant twice during the relevant period. Admin. Rec. at 1092-97.

(2) Examining psychologist Stefanie L. Griffin, Ph.D., who also examined claimant twice during the relevant period. Id. at 279-84; 792-98.

(3) Non-examining orthopedic surgeon, Elizabeth Nolan, M.D., who reviewed claimant’s medical records and completed a post-hearing “Medical Source Statement of Ability to do Work-Related Activities (Physical).” Id. at 1204-14.

(4) Non-examining state agency physician Laura Landerman, Ph.D. Id. at 84-93.

Physical Impairments. Claimant first alleges that the ALJ

erred in failing to properly account for Dr. Nolan’s observation

that claimant “may need to elevate right leg periodically and

may need special shoe accommodation.” Admin. Rec. at 1209.

Claimant goes on to assert that this “limitation” is likely

related to her arthritis, which she testified prevented her from

driving long distances, standing for anything more than a few

minutes, and walking long distances. See Claimant’s memorandum

(document no. 7-1) at 6.

9 Parenthetically, the court notes that claimant has not

pointed to (nor could the court find) even a single other

reference in the record to claimant’s possible need to elevate

her right leg. And, when asked by the ALJ whether she required

any “special shoes or inserts,” claimant said that she did not.

Rather, she stated that when purchasing shoes, she simply needed

to be mindful of what type of shoe she bought. That is, she had

to make sure they don’t put pressure on the pin that was placed

in her right foot in 2001 to surgically repair a fracture.

Admin. Rec. at 66-67. Approximately five months after the

hearing, in October of 2017, claimant presented to the Wentworth

Douglass Hospital, complaining of “bilateral foot pain.” She

told the treating physician’s assistant that although she did

own orthotic shoes, she did not wear them. Id. at 1294. There

is, then, scant evidence to support the notion that claimant

needs either to elevate her right leg or wear orthopedic shoes.

Beyond the speculative reference to claimant’s potential

need to elevate her leg and/or wear orthopedic shoes, Dr. Nolan

opined that claimant could: perform activities like shopping;

travel without a companion for assistance; ambulate without need

for a walker, cane, or crutches; and walk a block at a

reasonable pace, even on rough surfaces. Admin. Rec. at 1209.

She also opined that claimant can sit for up to 8 hours without

10 interruption, stand for up to 2 hours, and walk for up to 2

hours. Id. at 1205. Consequently, it does not appear that Dr.

Nolan’s suggestion that claimant “may” need to elevate her leg

and/or obtain orthopedic shoes actually imposes any additional

functional limitation(s). See, e.g., Dimambro v. US Soc. Sec.

Admin.,

,

, at *5 (D.N.H. Jan. 5, 2018)

(noting that an ALJ need only “explain the meaning of the

opinion or address it as a limitation” when a medical source

opinion “can reasonably be read to include a specific functional

limitation.”) (citation and internal punctuation omitted).

Moreover, as the Commissioner notes, even if Dr. Nolan’s

observations could be viewed as a specific functional

limitation, and if there were substantial evidence to support

finding such a limitation, claimant has not shown (or even

suggested) that the ALJ’s RFC finding would not accommodate that

limitation. The ALJ’s RFC determination limits claimant to

standing and walking for no more than a total of 4 hours in an

8-hour workday. Consequently, there are 4 additional hours in

the workday that claimant could elevate her leg if necessary.

And, there is no suggestion that claimant’s (potential) need for

a special shoe would preclude her for performing the work-

related functions determined by the ALJ.

11 More broadly, the court notes that while four medical

professionals discussed claimant’s various physical and mental

impairments in detail, only Dr. Nolan completed a “Medical

Source Statement of Ability to do Work-Related Activities” and

offered an opinion as to claimant’s physical limitations. And,

the ALJ sustainably adopted Dr. Nolan’s opinions in determining

claimant’s RFC (with two exceptions: a few non-exertional

limitations, which the ALJ concluded were more restrictive than

Dr. Nolan; and the suggestion that claimant “may” need to

elevate her right leg). The ALJ did not err in calculating

claimant’s RFC. Nor did she err in relying largely upon the

opinions of Dr. Nolan, or in failing to discuss any references

to claimant’s potential need to elevate her leg or wear

orthopedic shoes.

Mental Limitations. Next, claimant asserts that the ALJ

erred by dismissing the opinions offered by Dr. Novelli as

having “no probative value.” Admin. Rec. at 23. But, the ALJ

adequately explained her decision to discount those opinions:

Dr. Novelli opined, after a brief treating relationship with the claimant [i.e., two office visits], that she had “extreme” limitations in her ability to understand, remember or apply information, interact with others and concentrate, persist or maintain pace and “marked” limitation adapting or managing oneself. This checklist-style form appears to have been completed as an accommodation to the

12 claimant and includes only conclusions regarding functional limitations without any rationale for those conclusions.

Admin. Rec. at 23. See also Id. at 1092-97 (“Mental Impairment

Questionnaire” completed by Dr. Novelli). In addition to noting

claimant’s short treatment history with Dr. Novelli, 3 the ALJ

also explained that Dr. Novelli’s opinions were not supported by

objective evidence, nor were they supported by claimant’s

activities of daily living. Id.

On the other hand, the consulting psychologist, Dr. Griffin

(who, like Dr. Novelli, also examined claimant twice), generally

concluded that claimant’s intellectual limitations (e.g., her

slow processing speed) were not particularly significant, and

her psychiatric impairments (e.g., anxiety) were well managed

with medication. So, for example, after evaluating claimant in

November of 2013, Dr. Griffin concluded that: although her

intellect is estimated to be in the “below average,” possibly

“borderline,” range, claimant’s speech was within normal limits

and her thought processes were generally logical and goal-

oriented; claimant maintains a fairly full range of daily

3 The record indicates that claimant met with Dr. Novelli twice. She appears to have cancelled all of her other scheduled sessions with Dr. Novelli. See Admin. Rec. at 1055, 1056, 1057, and 1058.

13 activities, including household cleaning, laundry, and meal

preparation; she also is responsible for her three young

children and maintains the family’s finances; she generally

appears capable of appropriate interactions with others; and her

“psychiatric symptoms appear to be generally well-controlled at

this time and do not appear to adversely impact her capacity to

adhere to a work schedule or to interact appropriately with

supervisors/co-workers.” Admin. Rec. at 282-83.

Approximately two and one-half years later, in June of

2016, Dr. Griffin again examined claimant. She again observed

that claimant suffers from somewhat slowed processing speed, and

scored in the “low average” to “borderline impaired” range on

various verbal and nonverbal intellectual performance tests.

Id. at 794-95. But, Dr. Griffin again noted that claimant

maintains a fairly full range of daily activities:

She reported that she prepares dinner from scratch for the family. She indicated that she keeps up with the laundry and household cleaning because she has “OCD.” She manages her medications without reported difficulty. She also manages the household finances. . . . She drives without difficulty.

Id. at 796. See also Id. at 797 (“Mrs. Ramsey appears

independent in completing daily activities. She presented alone

to the evaluation and completed intake paperwork independently.

14 She manages the household laundry, cleaning and meals without

reported difficulty. She drives and manages her medications and

the household finances.”).

Ultimately, Dr. Griffin concluded that claimant “appears

capable of understanding and remembering basic, but not complex

instructions and information” and “capable of attending to and

completing basic, but not more complex tasks.” Id. And,

finally, Dr. Griffin opined that, “Psychological factors do not

appear to have a significantly adverse impact upon her capacity

to adhere to a regular work schedule, interact appropriately

with others, or follow basic work-related instructions. Because

of intellectual limitations, she is expected to have difficulty

following more complex work-related instructions and making

complex work-related decisions.” Id. at 797-98.

The ALJ’s decision to afford Dr. Griffin’s opinions “great

weight” is amply supported by the record, as well as the reasons

expressed by the ALJ. Id. at 21-22. Similarly, the ALJ

adequately explained her decision to ascribe “no probative

value” to the opinions of Dr. Novelli. Specifically, she noted

claimant’s comparatively short treatment history with Dr.

Novelli, the fact that it appeared that Dr. Novelli completed

the checklist-style form as an accommodation to claimant, and

15 that Dr. Novelli (unlike Dr. Griffin) expressed only

conclusions, without providing supporting rationales or pointing

to supportive evidence.

In the end, the record contained conflicting mental health

opinions from two examining sources - both of whom had examined

claimant twice. The ALJ considered both of those opinions, but

sustainably concluded that Dr. Griffin’s opinions were better

supported by the record and more persuasive. The court can find

no error in the ALJ’s decision to credit the opinion evidence in

that manner, or her explanation for that decision.

II. Claimant’s Testimony and Subjective Symptom Allegations.

Finally, claimant asserts that the ALJ “erroneously

evaluated [her] testimony regarding her symptoms and limitations

in determining her RFC.” Claimant’s memorandum at 9.

Specifically, she claims the ALJ “failed to acknowledge [her]

testimony indicating that she was actually extremely limited in

her daily activities, including her ability to care for her

children, due to her physical and mental limitations.” Id. at

11. The court disagrees.

The ALJ summarized claimant’s testimony about her daily

activities, her lower back and foot pain, her difficulty

16 driving, and her claimed inability to stand from more than six

to eight minutes at a time. See Admin. Rec. at 19, 55. And,

the ALJ found that claimant’s medically determinable impairments

could reasonably be expected to cause claimant’s alleged

symptoms. But, the ALJ concluded that claimant’s statements

about the intensity, persistence, and limiting effects of those

symptoms were “not entirely consistent with the medical evidence

and other evidence in the records.” Id. at 20. The ALJ then

discussed, in detail, the basis for that conclusion. See Admin.

Rec. at 20-23. See also Soc. Sec. Ruling 16-3p, Titles II &

XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P,

*2 (Mar. 16, 2016) (“[A]n individual’s

statements of symptoms alone are not enough to establish the

existence of a physical or mental impairment or disability.”).

So, contrary to claimant’s suggestion, the ALJ did not

“fail to acknowledge” claimant’s testimony about her alleged

limitations. The ALJ summarized claimant’s testimony, but found

that it was not entirely consistent with other evidence in the

record. In other words, the ALJ properly engaged in “an

evidence-based analysis of the administrative record to

determine whether the nature, intensity, frequency, or severity

of an individual’s symptoms impact his or her ability to work.”

*1, n.1. And, contrary to claimant’s

17 implicit suggestion, see claimant’s memorandum at 9-10, the ALJ

did not engage in an impermissible evaluation of claimant’s

overall credibility, her character, or her propensity for

truthfulness. Soc. Sec. Ruling 16-3p, Titles II & XVI:

Evaluation of Symptoms in Disability Claims, SSR 16-3P,

, at *10.

Claimant has not identified any flaw in the ALJ’s

reasoning, nor has she pointed to substantial evidence

undermining the ALJ’s conclusions. Instead, she seems to ask

the court to simply reweigh her testimony and the evidence of

record in a manner more favorable to her. That is not the

court’s role, nor does the court have authority to do so. See,

e.g., Gillen v. Colvin,

,

, at *6

(D.N.H. Feb. 28, 2017) (“Claimant’s argument is best construed

as invitation to the court to reweigh the evidence before the

ALJ, but that is an invitation the court must decline.”)

(citations omitted).

Conclusion

Judicial review of the ALJ’s decision is both limited and

deferential. This court is not empowered to consider claimant’s

application de novo, nor may it undertake an independent

assessment of whether she is disabled under the Act.

18 Consequently, the issue before the court is not whether it

believes claimant is disabled. Rather, the permissible inquiry

is “limited to determining whether the ALJ deployed the proper

legal standards and found facts upon the proper quantum of

evidence.” Nguyen v. Chater,

(1st Cir. 1999).

Provided the ALJ’s findings are properly supported by

substantial evidence - as they are in this case - the court must

sustain those findings even when there may also be substantial

evidence supporting the contrary position. Such is the nature

of judicial review of disability benefit determinations. See,

e.g., Tsarelka v. Secretary of Health & Human Services,

(1st Cir. 1988) (“[W]e must uphold the [Commissioner’s]

conclusion, even if the record arguably could justify a

different conclusion, so long as it is supported by substantial

evidence.”); Rodriguez v. Secretary of Health & Human Services,

(1st Cir. 1981) (“We must uphold the

[Commissioner’s] findings in this case if a reasonable mind,

reviewing the evidence in the record as a whole, could accept it

as adequate to support his conclusion.”).

Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and the claimant,

the court concludes that there is substantial evidence in the

record to support the ALJ’s determination that claimant was not

19 disabled, as that term is used in the Act, at any time prior to

the date of the ALJ’s decision (January 2, 2018). The ALJ’s

determination of claimant’s RFC, her stated reasons for

crediting some medical opinions while discounting others, and

her analysis of claimant’s subjective allegations of disabling

symptoms are well-reasoned and supported by substantial

evidence.

For the foregoing reasons, as well as those set forth in

the Commissioner’s legal memorandum, claimant’s motion to

reverse the decision of the Commissioner (document no. 7) is

denied, and the Commissioner’s motion to affirm his decision

(document no. 9) is granted. The Clerk of the Court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

August 9, 2019

cc: D. Lance Tillinghast, Esq. Sarah E. Choi, Esq.

20