UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Alexander Bourque

v. Civil No. 17-cv-268-LM Opinion No.

Nancy A. Berryhill, Acting Commissioner of Social Security

O R D E R

Alexander Bourque seeks judicial review, pursuant to

(g) & 1383(c)(3), of the decision of the Acting

Commissioner of the Social Security Administration, denying his

application for disability insurance and Supplemental Security

Income benefits. Bourque moves to reverse the Acting

Commissioner’s decision, and the Acting Commissioner moves to

affirm. For the reasons discussed below, the decision of the

Acting Commissioner is affirmed.

STANDARD OF REVIEW

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s

factual findings as long as they are supported by substantial evidence.

(g); see also Fischer v. Colvin,

(1st Cir. 2016). “Substantial evidence is more than

a scintilla. It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”

Astralis Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev.,

(1st Cir. 2010).

In determining whether a claimant is disabled, the ALJ

follows a five-step sequential analysis.

(a)(4), 416.920(a)(4).1 The claimant “has the burden

of production and proof at the first four steps of the process.”

Freeman v. Barnhart,

(1st Cir. 2001). The

first three steps are (1) determining whether the claimant is

engaged in substantial gainful activity; (2) determining whether

he has a severe impairment; and (3) determining whether the

impairment meets or equals a listed impairment.

(a)(4)(i)-(iii).

At the fourth step of the sequential analysis, the ALJ

assesses the claimant’s residual functional capacity (“RFC”),

which is a determination of the most a person can do in a work

setting despite his limitations caused by impairments,

1 Because the pertinent regulations governing disability insurance benefits under 20 C.F.R. Part 404 are the same as the pertinent regulations governing Supplemental Security Income benefits under 20 C.F.R. Part 416, the court will cite only Part 404 regulations. See Reagan v. Sec’y of Health & Human Servs.,

(1st Cir. 1989).

2 § 404.1545(a)(1), and his past relevant work, id.

§ 404.1520(a)(4)(iv). If the claimant can perform his past

relevant work, the ALJ will find that the claimant is not

disabled. See id. § 404.1520(a)(4)(iv). If the claimant cannot

perform his past relevant work, the ALJ proceeds to Step Five,

in which the ALJ has the burden of showing that jobs exist in

the economy which the claimant can do in light of the RFC

assessment. See id. § 404.1520(a)(4)(v).

BACKGROUND2

On November 7, 2014, Bourque filed an application for

disability insurance and Supplemental Security Income (“SSI”)

benefits. He alleged impairments of back problems, lung

problems, and Post-Traumatic Stress Disorder. He initially

alleged an onset date of February 28, 2011, but he later amended

it to November 23, 2014. Bourque was forty-four years old in

November 2014. He has a limited education, having failed to

complete eighth grade, and his past relevant work includes a

boiler house mechanic, fuel house attendant, and salvage

laborer.

2 A detailed statement of the facts can be found in the parties’ Joint Statement of Material Facts (doc. no. 14).

3 I. Medical Record

Proceeding chronologically, the court summarizes the

relevant evidence in the record. On July 15, 2010, Bourque

received an MRI, the results of which showed degenerative disc

disease.

In mid-November 2014, Bourque allegedly injured his lower

back while lifting an appliance. A few days later, on November

25, 2014, Bourque visited an emergency room, complaining of

lower back pain that radiated down his left leg to above the

knee. On examination, Bourque’s reflexes and strength were

normal, but he had a limited range of motion due to the back

pain. Bourque had left sciatic notch discomfort on palpation

and a positive leg raise test. Bourque received Toradol, which

dulled the pain.

On December 12, 2014, Bourque again visited the emergency

room, complaining of back pain that radiated down his left leg.

The treating physician observed that Bourque walked with a

“little bit of antalgic gait,” that he was in no distress, and

that he exhibited discomfort in his lumbosacral junction on the

left and tenderness on the left sacral notch. Bourque exhibited

normal strength, normal reflexes, and had a negative straight

leg raise test.

Two days later, Bourque returned to the emergency room,

complaining of lower back pain radiating down his left leg.

4 Bourque stated that he had not obtained any relief from the pain

medication he received at the previous visit. Bourque exhibited

tenderness in the lumbosacral region and in the left SI joint,

which had decreased range of motion. Bourque stated that he had

problems sitting because of the pain. Bourque exhibited normal

strength with no muscle wasting.

On January 9, 2015, Bourque visited Amanda Dustin, APRN,

his primary care provider. Dustin observed that Bourque

appeared distressed, sat in his chair sideways and hunched over,

and readjusted his position continually. Bourque exhibited

reduced mobility in his back, flank tenderness, and he was

unable to flex, extend, bend, or rotate his trunk. Bourque

exhibited normal station and gait, and Dustin noted intact motor

and sensation. Dustin prescribed Bourque new medications. But

Bourque returned to Dustin a few days later, stating that his

back pain remained unchanged and that the pain woke him up at

night. Bourque noted that he was only able to assist his

brother-in-law build a gate for thirty minutes because the

activity aggravated his back pain. Bourque stated that one of

his medications, trazodone, “made him shaky” and so he stopped

taking it. Admin. Rec. at 476. Bourque did note that one of

the other medications, prednisore, helped “for as long as he is

on it.” Id. Dustin observed that Bourque was in no acute

distress, though Bourque had limited range of motion in his

5 spine. Dustin noted intact motor and sensation, with normal

station and gait. Dustin observed that Bourque was slow to get

up.

On January 22, 2015, Bourque visited Dr. Jay Solorio, M.D.,

who worked at an orthopedic clinic. Complaining of low back and

left-leg pain, Bourque told Dr. Solorio of the November 2014

incident, in which he began experiencing pain after lifting an

appliance. Bourque reported that it was painful to rise from a

chair and drive, that the pain was worse in mornings and

evenings, and that the pain was getting progressively worse.

Dr. Solorio examined Bourque, noting a muscular spasm in the

lumbar spine and tenderness in the lumbar spine and left sciatic

notch. A straight leg raise test was positive on the left and

negative on the right. Bourque exhibited diminished sensation

in his left toes and plantar foot, but normal muscle strength

and tone. Dr. Solorio ordered an MRI.

On January 30, before Bourque obtained a second MRI, Dr.

Peter Loeser, M.D., conducted a consultative examination. Dr.

Loeser observed that Bourque looked well-nourished and well-

developed, and was in no apparent distress. Bourque had grossly

normal alignment, curvature, and range of motion in the lumbar

spine, except that he had a mildly decreased range of motion in

all directions because of pain. Dr. Loeser indicated no

tenderness, muscle spasms, or atrophy in the area. The supine

6 straight leg raise was intact, but Bourque showed pain in the

lower back at the extreme range in his right leg. Overall, Dr.

Loeser found the lumbar spine examination to be “unremarkable”

without “tenderness to palpation.” Admin. Rec. at 444. Bourque

did exhibit a mild decrease in fine-touch sensation in his left

lower extremities, but he showed a normal ability to sit and

stand, step up and down, get on and off the examination table,

and remove and put on socks. On the other hand, Bourque had a

severe limp in his left leg from pain, and, as a result, was

unable to walk on his left toe or heel, or perform more than a

shallow squat.

As is relevant here, Dr. Loeser diagnosed Bourque with low

back pain of uncertain etiology with left leg radiculopathy, and

stated that “these symptoms might improve with further

evaluation and management, possibly involving physical therapy

and/or localized treatments.” Id.

On February 5, 2015, Bourque received the second MRI of his

spine, which showed degenerative changes in the lumbar spine.

On February 14, 2015, Dr. Trina Jackson, Psy. D, conducted

a psychological consultative examination. Bourque reported that

he completed seventh grade, after which he dropped out due in

part to his learning difficulties. Dr. Jackson noted that

Bourque had intact short- and long-term memory, with no

difficulty in concentration. Based on a few tests that she

7 conducted, Dr. Jackson estimated that Bourque’s intellectual

functioning was in the low-average to below-average range.

Based on this examination, Dr. Jackson concluded that Bourque

was able to remember and manage activities of daily living, as

well as act appropriately and effectively in the social

functioning domain. Dr. Jackson highlighted one functional

capacity of concern: Bourque’s ability to understand and

remember. She opined that, while Bourque demonstrated no

serious difficulties in memory, his cognitive abilities, “which

may be below average,” may make it more difficult for Bourque to

complete complex tasks. Admin Rec. at 450. Dr. Jackson stated

that Bourque “is able to function appropriately and effectively

in this domain, but will need accommodations and may have

difficulty with consistency due to possible cognitive

difficulties.” Id. Dr. Jackson diagnosed Bourque with mild

alcohol use disorder (in full remission), and “Possible

Borderline Intellectual Functioning.” Id. She recommended that

Bourque “may benefit from intellectual testing to determine his

level of cognitive functioning.” Id. at 451.

On February 16, Bourque met with APRN Dustin. Bourque

continued to complain of back pain and radiculopathy. Dustin

noted that Bourque had reduced mobility in his spine and found

it painful to stand. Bourque’s straight leg raise was positive,

8 but he had intact sensation and motor, and normal station and

gait.

On February 24, Dr. Edward Martin, a non-examining agency

consultant, completed a psychiatric evaluation for purposes of

the initial review of Bourque’s application. Dr. Martin gave

Dr. Jackson’s opinion great weight. He construed her opinion as

diagnosing Bourque with no psychiatric diagnosis except an

alcohol use disorder, for which Bourque was in full remission.

Based on the absence of any other diagnosis, Dr. Martin

concluded that Bourque had no medically determinable mental

impairments.

On February 25, Bourque had a second visit with Dr.

Solorio. Bourque complained of back and left leg pain. Dr.

Solorio noticed tenderness in Bourque’s lower lumbar spine and

left sciatic notch, and Bourque’s straight leg raise test was

positive on the left. Dr. Solorio noted that Bourque’s eversion

strength was grade 5- over 5, and otherwise normal in both legs.

Dr. Solorio provided Bourque with a one-time prescription for

Lortab, discharged Bourque from his care, and instructed Bourque

to follow up with Dr. Thomas Kleeman, a neurosurgeon.

On March 5, Dr. Hugh Fairley, a non-examining agency

consultant and medical doctor, completed an RFC assessment on

initial review of Bourque’s application. Dr. Fairley opined

that Bourque could lift 20 pounds occasionally and 10 pounds

9 frequently, could sit for about six hours in a workday, and

could stand or walk for about six hours in a workday. Dr.

Fairley opined that Bourque was limited to occasional balancing,

stooping, kneeling, crouching, crawling, and climbing ramps and

stairs, but should never climb ladders, ropes, or scaffolds.

Bourque met with Dr. Kleeman on March 9. Bourque told Dr.

Kleeman that he had constant leg symptoms on the left, which was

aggravated by all positions and relieved by laying down with a

pillow under the knees. Bourque estimated that his pain was, on

a ten-point scale, usually a seven or eight, at worst a ten, and

at least a five. Dr. Kleeman examined Bourque, finding that

Bourque had equal and symmetric reflexes, a negative straight

leg raise test, with a normal motor exam and intact sensation.

Dr. Kleeman opined that “neurologically [Bourque] is still

intact,” which created “no urgency” for surgery. Id. at 586.

In July 2015, Bourque met with Dr. Robert Soucy, D.O.,

while Bourque was incarcerated at the Coös County House of

Corrections. Bourque reported back complaints and rising

anxiety, for which Dr. Soucy prescribed him Klonopin and Celexa.

The next year, on March 1, 2016, Dr. Soucy provided a

letter to Bourque’s counsel regarding Bourque’s RFC. Dr. Soucy

stated that Bourque worked while incarcerated, “doing night crew

which involved lifting buckets, mopping floors and lifting

10 buffing machines.” Id. at 498. Dr. Soucy opined that, for the

period that he knew him, Bourque could perform sedentary work.

Also on March 1, 2016, Dr. Solorio completed a medical

source statement for Bourque. He diagnosed Bourque with a

herniated nucleus pulposus at L5-S1, and degenerative disc

disease at L2-L3 and L5-S1. These resulted in symptoms of back

and left leg pain, as well as numbness in the left foot. Dr.

Solorio stated that the pain in the back and left leg occurred

frequently day and night, and estimated that the pain was an

“8/10.” Id. at 579. Dr. Solorio opined that Bourque’s symptoms

would frequently interfere with his attention and concentration

in performing simple work tasks.

Dr. Solorio stated that Bourque could only sit for one hour

at a time or two hours total in a workday. Bourque could only

stand for one hour at a time or stand and walk for two hours

total in a workday. Bourque would need breaks to walk, would

need to be able to shift at will from sitting, standing, or

walking, and would need an hour break every day. Bourque could

occasionally lift ten pounds and could never lift twenty pounds

or more. Dr. Solorio stated that Bourque should never twist,

stoop, or climb ladders, could only rarely crouch or squat, and

could occasionally climb stairs. Dr. Solorio opined that

Bourque would have good and bad days that would cause him to be

absent more than four day per month.

11 On March 15, Dr. Andrew Forrest, M.D., examined Bourque for

low back and left leg pain. Dr. Forrest observed that Bourque

was in no acute distress, had normal station but an antalgic

gait on the left. Bourque exhibited decreased range of motion

in the spine, normal motor strength, normal tone and muscle bulk

in both legs, and normal sensation. Dr. Forrest prescribed

Bourque gabapentin.

II. Hearing Testimony

Bourque’s application was denied on initial review, after

which he sought a hearing before an ALJ. The hearing was held

on March 16, 2016. Bourque, who was represented by counsel,

appeared and testified at the hearing, as did Christine

Spaulding, a vocational expert.

Bourque testified that he lived with his girlfriend, who is

physically and mentally disabled. Bourque stated that his

girlfriend would typically do the household chores, except that

he would wash dishes or sweep occasionally. Bourque’s

girlfriend would assist him with getting out of the shower,

because of weakness in his legs, and would help him tie his

sneakers. Bourque testified that he dropped out of school

before completing eighth grade, which he had repeated three

times. While in school, Bourque was enrolled in special

education classes.

12 Bourque stated that his medical conditions were leg numbness

and back pain, which caused various functional limitations. He

could not shovel snow, he could grocery shop for only ten

minutes, he could sit for no more than two hours and stand for

no more than two hours per eight-hour workday. He also needed

to lay down for four to five hours per day. Bourque believed

that he could occasionally lift ten pounds or less.

Bourque testified that, while incarcerated, he lifted

buckets and mopped floors. He performed these tasks three times

in two months. He stated that he visited with Dr. Soucy three

times while he was incarcerated, but that Dr. Soucy never

examined him.

III. ALJ’s Decision

The ALJ issued his decision on May 18, 2016. At step one,

the ALJ found that Bourque had not engaged in substantial

gainful activity since November 2014. At step two, the ALJ

determined that Bourque had a severe impairment of degenerative

disc disease. At step three, the ALJ determined that Bourque’s

impairment did not met a listed impairment. At step four, the

ALJ concluded that Bourque can perform a limited range of light

work, in that he could occasionally climb ramps and stairs,

could never climb ladders, ropes, or scaffolds, and could

occasionally balance, stoop, kneel, crouch, and crawl. Although

13 the ALJ found that Bourque cannot perform any past relevant work

given this RFC assessment, he concluded at step five that there

are significant numbers of jobs in the national economy that

Bourque could perform. Therefore, the ALJ found that Bourque is

not disabled with the meaning of the Social Security Act. The

Appeals Council denied Bourque’s request for review, making the

ALJ’s decision the Acting Commissioner’s final decision.

DISCUSSION

Bourque raises three broad claims of error on appeal. He

argues that the ALJ erred in (1) weighing the medical opinions

in the record, (2) evaluating Bourque’s subjective complaints

and symptoms, and (3) failing to order further intellectual

testing. The court addresses each argument below.

I. Medical Opinions

Bourque first contends that the ALJ erred in weighing the

medical opinions in the record. Specifically, Bourque argues

that the ALJ erroneously gave little weight to Dr. Solorio and

only partial weight to Dr. Soucy. Conversely, Bourque faults

the ALJ for giving great weight to the opinions of Drs. Loeser

and Fairley.

“An ALJ is required to consider opinions along with all

other relevant evidence in a claimant’s record.” Ledoux v.

Acting Comm’r, Social Sec. Admin., No. 17-cv-707-JD,

2932732, at *4 (D.N.H. June 12, 2018). The ALJ analyzes the

opinions of state agency consultants, treating sources, and

examining sources under the same rubric. See id.;

(c). The ALJ must consider “the examining

relationship, treatment relationship (including length of the

treatment relationship, frequency of examination, and nature and

extent of the treatment relationship), supportability of the

opinion by evidence in the record, consistency with the medical

opinions of other physicians,” along with the doctor’s expertise

in the area and any other relevant factors. Johnson v.

Berryhill, No. 16-cv-375-PB,

, at *5 (D.N.H. Oct.

12, 2017).

However, an ALJ must give the opinion of a treating source

“controlling weight” if the opinion “is well-supported and

consistent with substantial evidence.” Stafford v. Berryhill,

No. 17-cv-345-LM,

, at *3 (D.N.H. June 18, 2018).

“[I]f the ALJ rejects the opinion of a treating source, the ALJ

must give good reasons for his determination, which must be both

specific and supportable.”

Before delving into the medical opinions, it will be helpful

to briefly describe the ALJ’s overall reasoning. The ALJ

appears to have placed heavy reliance on two inferences from the

medical evidence and examination findings. First, Bourque

generally exhibited normal leg strength and ambulation, from

15 which the ALJ concluded that Bourque could perform light work

and did not need to, as Bourque asserted, “lie down 4 to 5 hours

per day.” Admin. Rec. at 19. Second, the ALJ noted that

Bourque’s straight leg raise tests had been positive on some

occasions and negative on others. Similarly, Bourque sometimes

exhibited a “mild decrease in fine touch” in his left leg, while

at other times his “sensation remained intact.” Admin. Rec. at

19. The ALJ inferred from these variances that Bourque only had

“occasional radicular symptoms,” which did not generally prevent

him from performing light work. Admin. Rec. at 20.

Nevertheless, in conjunction with Bourque’s decreased range of

motion and tenderness in the lumbar spine, these radicular

symptoms justified some additional exertional limitations, which

the ALJ incorporated into Bourque’s RFC. Furthermore, the ALJ

emphasized that “relatively stable” treatment regimens had been

recommended to Bourque over the years, usually consisting of

medication. Physical therapy and surgical options had been

suggested by various professionals, but Dr. Kleeman indicated

that surgery was not urgent. The ALJ’s reading of the record is

consistent with and supported by Dr. Fairley’s RFC assessment,

whose opinion the ALJ gave great weight. Dr. Fairley opined

that Bourque could perform light work with some exertional

limitations.

The court now turns to Bourque’s arguments.

16 a. Dr. Solorio

Bourque contends that the ALJ erroneously gave little weight

to the opinion of Dr. Solorio, raising three arguments.

First, Bourque contends that the ALJ overstated the effect

of medication on Bourque’s symptoms between his first and second

examinations with Dr. Solorio. In affording Dr. Solorio’s

opinion little weight, the ALJ noted that Dr. Solorio’s clinical

findings are inconsistent with his assessment that Bourque is

unable to work. See Cruz v. Astrue, No. 11-638M,

, at *15 (D.R.I. Feb. 12, 2013) (stating that an ALJ may

disregard a treating physician’s opinion where it is

inconsistent with his treatment notes). In his assessment, Dr.

Solorio characterized Bourque’s back and left-leg pain as

occurring frequently during the day and night. But the ALJ

cites contrary evidence from Dr. Solorio’s examination notes.

Specifically, at the time of his first examination, Bourque

“experienced muscle spasms, tenderness, diminished sensation in

the left foot, and a positive straight leg raise on the left.”

Admin. Rec. at 21. Bourque did maintain normal leg strength,

however. Bourque was then prescribed medication, and “[w]ith

treatment, there was no spasm on Dr. Solorio’s second exam and

[Bourque] maintained full strength.”

17 Bourque argues that the ALJ’s reliance on the effect of

medication was faulty, citing other evidence in the record to

show that Bourque’s condition did not significantly change by

the second examination. Bourque notes that, at the second

examination, Dr. Solorio referred Bourque to Dr. Kleeman for

surgical evaluation and reported that there had been “no

interval change [in Bourque’s] condition” and Bourque “continued

[to] have back and left leg pain chronically.” Admin. Rec. at

467.

But, as the court reads the decision, the ALJ’s point about

the quick alleviation of Bourque’s muscle spasms between

examinations was not a broad assertion that Bourque’s symptoms

were fully ameliorated with treatment. Rather, the ALJ’s point

was that, contrary to Dr. Solorio’s assessment, Bourque’s

radicular symptoms are more intermittent than frequent, and the

fact that Bourque’s muscle spasms faded is one piece of evidence

in support of that conclusion. The court finds the ALJ’s

inference reasonable, and the mere identification of other

evidence that could support a contrary inference is insufficient

to undermine the ALJ’s decision. See Beaune v. Colvin, No. 14-

cv-174-PB,

, at *1 (D.N.H. July 10, 2015)

(stating that it is “the role of the ALJ . . . to resolve

conflicts in the evidence”).

18 Second, Bourque asserts that the ALJ misstated the evidence

when he gave less weight to Dr. Solorio’s opinion on the ground

that “the longitudinal history shows a lack of radicular

symptoms as [Bourque’s] straight leg raise has been negative.”

Admin. Rec. at 21. See Jessica B. v. Berryhill, No. 17-cv-294-

NT,

, at *5 (D. Me. June 3, 2018) (noting that

inconsistency with record as a whole can provide good reasons

for according the opinion of a treating source little weight);

(c)(4). Bourque argues that the ALJ

misstated the evidence because, in fact, Bourque had positive

straight leg raise tests for his left leg at both of Dr.

Solorio’s examinations.

Understood in context, the ALJ’s remark was not a

misstatement of the evidence. Indeed, the ALJ acknowledged in

his decision that, like many of his symptoms and examination

findings, Bourque had both positive and negative straight leg

raise tests in his medical record. See Admin. Rec. at 19. For

that reason, the court does not read the ALJ to be claiming that

Bourque never had a positive straight leg raise test. Instead,

the ALJ infers that Bourque does not have constant radicular

symptoms, the evidence for which includes Bourque’s negative

straight leg raise tests at some examinations. The court does

not consider that to be an impermissible inference from the

19 record, and it is an inference that undermines one premise of

Dr. Solorio’s opinion—namely, that Bourque has frequent back and

left-leg pain.

Third, Bourque argues that the ALJ erred by failing to

acknowledge Dr. Solorio as a treating source and by failing to

address all relevant factors in

(c). The

court disagrees. Assuming that Dr. Solorio can be considered a

treating source, the ALJ provided good reasons for affording his

opinion little weight. As noted above, the ALJ found Dr.

Solorio’s assessment inconsistent with his own clinical findings

and with the objective medical evidence. In addition, the ALJ

noted that Dr. Solorio only examined Bourque on two occasions.

See Comeau v. Colvin, No. 12-cv-478-JL,

, at *7

(D.N.H. Nov. 1, 2013) (“[L]ength of the treatment relationship

and the frequency of examination are expressly listed among the

factors the ALJ must consider in deciding the weight to give the

opinions of a medical source.” (quotation marks omitted)).

These constitute good reasons for the ALJ’s rejection of Dr.

Solorio’s opinion, and where the ALJ provides good reasons, he

is not required to expressly address each of the factors set

forth in § 404.1527(c). Chapin v. Astrue, No. 11-cv-286-JL,

, at *4 (D.N.H. Sept. 28, 2012).

20 Thus, the court cannot conclude that the weight accorded to

Dr. Solorio’s opinion is erroneous for any of the reasons raised

by Bourque.3

b. Dr. Soucy

Bourque objects to the ALJ’s decision to afford the opinion

of Dr. Soucy weight in a manner adverse to Bourque.

Specifically, the ALJ afforded Dr. Soucy’s opinion weight

insofar as Dr. Soucy opined that Bourque did not qualify for

full disability. In doing so, the ALJ noted that “Dr. Soucy

identified activities [that Bourque] was performing while

incarcerated that are consistent with [Dr. Soucy’s] statement

that [Bourque] did not qualify for full disability.” Admin.

Rec. at 21. Recall that Dr. Soucy stated in his letter that

Bourque did work on the night crew which “involved lifting

buckets, mopping floors and lifting buffing machines.” Id. at

498. Bourque argues that in relying on the fact that Bourque

performed this work while incarcerated, the ALJ ignored

3 Bourque makes two passing assertions that merit only brief comment. First, he asserts, without elaboration, that Dr. Solorio’s clinical finding that Bourque had normal strength is not inconsistent with his assessment that Bourque could lift no more than ten pounds. Second, Bourque states that Dr. Kleeman’s finding that Bourque is neurologically intact does not conflict with Dr. Solorio’s RFC assessment. Without any developed argument or citation to authority, however, the court declines to address these points. See United States v. Zannino,

(1st Cir. 1990) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work . . . .”).

21 Bourque’s testimony that he only performed such work on a few

occasions.

Even accepting Bourque’s argument, any error appears to be

harmless. Dr. Soucy’s opinion was hardly material to the ALJ’s

analysis. Indeed, the ALJ largely rejected the opinion,

accepting it only for the narrow point that Bourque does not

qualify for full disability. Other factors, including the

opinions of Drs. Fairley and Loeser, as well as the objective

medical evidence, factored more significantly into the ALJ’s

calculus. Absent any argument as to how this alleged error

deprived the ALJ’s decision of substantial support, the court

declines to remand the case on this ground.4

4 Bourque raises one additional argument with respect to Dr. Soucy. He argues the ALJ failed to acknowledge that Dr. Soucy is a treating source and failed to address all factors in § 404.1527(c). But even if Dr. Soucy could be considered a treating source, the ALJ provided good reasons for rejecting his RFC assessment of sedentary work. See Chapin,

, at *4. The ALJ noted that the opinion was not based on any examination, but instead was based on Bourque’s subjective complaints, and was also inconsistent with the objective medical evidence. Bourque does not challenge these reasons in any detail, beyond stating that the objective medical evidence does not support an RFC for light work “for the same reasons discussed herein with respect to . . . the opinion of Dr. Solorio.” Doc. No. 11-1 at 6. Having already rejected those arguments, see note 3, supra, the court need not address them further.

22 c. Dr. Loeser

Bourque argues that the ALJ erred when he gave the opinion

of Dr. Loeser great weight, because Dr. Loeser only reviewed the

2010 MRI, rather than the 2015 MRI, which showed “more severe

degenerative changes than were identified in 2010.” Doc. No.

11-1 at 7. The court finds no error in this respect.

As the Acting Commissioner correctly points out, “the fact

that an opinion was rendered without the benefit of the entire

medical record does not, in and of itself, preclude an ALJ from

giving significant weight to that opinion.” Coppola v. Colvin,

No. 12-cv-492-JL,

, at *8 (D.N.H. Feb. 21, 2014).

More importantly, the court fails to see the significance of

Bourque’s assertion, given that Dr. Loeser did not provide a

functional assessment of Bourque. Rather, the ALJ relied on Dr.

Loeser’s report insofar as his examination findings constituted

additional medical evidence to support an RFC of light work.

Dr. Loeser found, among other things, that Bourque had normal

strength and reflexes in his legs, with mildly decreased

sensation in his left leg and a decreased range of motion in the

lumbar spine. Admin. Rec. at 443-44. The ALJ stated that these

examination findings “are generally consistent with those of the

claimant’s treating providers” and “are consistent with the

light exertional level.” Id. at 21. Bourque does not

articulate how Dr. Loeser’s failure to review the 2015 MRI casts

23 doubt on the physical examination findings, and the court cannot

conclude that the ALJ’s decision is erroneous on that basis.

d. Dr. Fairley

Bourque challenges the ALJ’s reliance on the opinion of Dr.

Fairley, the non-examining agency consultant, on the ground that

Dr. Fairley did not review the 2015 MRI, which showed “more

severe degenerative changes.” Doc. no. 11-1 at 7.

However, as noted above, the fact that an opinion was

issued without the entire medical record does not necessarily

prevent an ALJ from affording the opinion great weight. See

Coppola,

, at *8. Here, the ALJ relied on Dr.

Fairley’s opinion because it was consistent with medical

evidence pre- and post-dating the 2015 MRI. In addition, the

ALJ cited the evidence that Bourque was able to be weaned off of

medication and still maintain normal strength, reflexes, and

sensation. Bourque fails to explain how the 2015 MRI undercuts

the ALJ’s reasoning, and in the absence of such argument, the

court declines to find the ALJ’s reliance on Dr. Fairley’s

opinion erroneous.

II. Bourque’s Subjective Complaints and Symptoms

Bourque raises four arguments to challenge the ALJ’s

evaluation of Bourque’s subjective complaints about his

symptoms. The court addresses each below.

24 Social Security Ruling (“SSR”) 16-3p provides guidance to

ALJs when they assess claimants’ “symptoms, including pain,

under

(c)(3), 416.929(c)(3).” Coskery v.

Berryhill,

(1st Cir. 2018). Under the ruling, “an

ALJ determining whether an applicant has a residual functional

capacity that precludes a finding of disability must evaluate

the intensity and persistence of an individual's symptoms such

as pain and determine the extent to which an individual's

symptoms limit his or her ability to perform work-related

activities.”

(internal quotation marks omitted).

“Moreover, SSR 16–3p provides that, in conducting that inquiry,

the ALJ must 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.”

(internal quotation marks

omitted). But in evaluating the claimant’s allegations and

complaints, an ALJ may not consider the claimant’s “overall

character or truthfulness.” SSR 16-3p,

, at *10

(Mar. 16, 2016).

First, Bourque argues that the ALJ contravened SSR 16-3p’s

instruction that an ALJ “not disregard an individual's

statements about the intensity, persistence, and limiting

25 effects of symptoms solely because the objective medical

evidence does not substantiate the degree of impairment-related

symptoms alleged by the individual.” Id. at *5. The ALJ did

not violate SSR 16-3p. While the ALJ did rely on the objective

medical evidence in rejecting Bourque’s allegations, the ALJ

also noted other factors, including the medical opinions and

Bourque’s consistent treatment regimens before and after his

alleged onset date.

Second, Bourque claims that the ALJ made an adverse

inference from the fact that Bourque has not received extensive

treatment, without considering that Bourque “had been without

medical insurance or the ability to pay for medical treatment

throughout much of his claim period.” Doc. No. 11-1 at 10. To

be sure, “[w]hen assessing a claimant's failure to pursue

recommended treatment, the ALJ must consider ‘possible reasons

he or she may not . . . seek treatment consistent with the

degree of his or her complaints,’ including whether the

individual can afford treatment.” Genereux v. Berryhill, No.

15-13226-GAO,

, at *7 (D. Mass. Mar. 31, 2017)

(quoting SSR 16-3p,

, at *8-9). However,

Bourque’s argument rests on a misinterpretation of the ALJ’s

decision.

The ALJ stated in his decision that Bourque’s “treatment

history is not consistent with the need for further reduction”

26 of his RFC below the light exertional level. Admin. Rec. at 20.

The ALJ noted that Bourque’s treatment has “remained relatively

stable” both before and after his alleged onset date, consisting

mostly of various medications. The ALJ then stated that Bourque

“was referred for physical therapy but there is no indication he

was able to attend after his alleged onset date,” and he “was

given surgical options but his surgeon also indicated . . .

there was no urgency to having surgery.”

As the court

reads this section of the ALJ’s decision, the ALJ is not arguing

that Bourque’s failure to attend physical therapy or receive

additional treatment casts doubt on his alleged symptoms.

Rather, the ALJ is noting that the consistent, conservative

courses of treatment prescribed by medical professionals, both

before and after his alleged onset date, does not conflict with

an RFC of light work. Cf. Slaughter v. Apfel,

,

, at *1 (8th Cir. Jan. 14, 2000) (finding that ALJ

properly discredited claimant’s subjective complaints where

treating physicians only prescribed conservative course of

treatment consisting of pain medication).

Third, Bourque argues that the ALJ erroneously concluded

that his activities of daily living are inconsistent with his

claimed symptoms. Bourque cites Moore v. Colvin,

(7th Cir. 2014), for the proposition that “the critical

difference between daily living activities and activities of a

27 full-time job is that in the former the person has more

flexibility in scheduling, can get help from others when needed,

and is not held to a minimum standard of performance.” Moore,

. The court is not persuaded. Besides merely

citing Moore, Bourque develops no actual argument as to how the

ALJ’s reasoning is erroneous. Furthermore, Bourque fails to

articulate how this alleged error is anything more than

harmless. The ALJ relied on other factors in declining to

credit Bourque’s subjective complaints.

Fourth, Bourque asserts that the ALJ erroneously rejected

his testimony that his girlfriend performs most of the household

tasks. The ALJ was skeptical of Bourque’s claim, given that he

also testified that his girlfriend is both physically and

mentally disabled. Bourque argues that the ALJ should have

“elicit[ed] further testimony from [Bourque] on this topic.”

Doc. No. 11-1 at 11. But Bourque fails to describe how

additional testimony would have bolstered his case. Absent

that, the court declines to reverse on this basis. See

Blanchette v. Astrue, No. 08-cv-349-SM,

, at *13

(D.N.H. June 9, 2009) (rejecting claimant’s argument that ALJ

failed to inquire into the effects of pain on claimant’s

activities of daily living in part because “claimant does not

28 say what more the ALJ would have learned from the questioning

she says should have been conducted”).

In short, none of these arguments justifies reversal.

II. Bourque’s Intellectual Functioning

Finally, Bourque argues that, despite giving Dr. Jackson’s

opinion great weight, the ALJ “largely ignores her

recommendation” that Bourque “may benefit from intellectual

testing to determine his level of cognitive functioning.” Doc.

no. 11-1 at 8. Although it is not entirely clear what kind of

claim of error Bourque is raising—Bourque’s brief is devoid of

any citation to authority—the court construes his argument to be

that the ALJ should have taken up Dr. Jackson’s recommendation

and ordered intellectual testing. That is, the ALJ erred by

failing to further develop the record.

While a claimant bears the burden at steps one through

four, the Acting Commissioner retains an obligation “to develop

an adequate record from which a reasonable conclusion can be

drawn.” Jones v. Berryhill, No. 16-11011-DJC,

,

at *9 (D. Mass. Aug. 29, 2017). Nevertheless, when a claimant

is represented by counsel, the ALJ “should ordinarily be

entitled to rely on claimant's counsel to structure and present

the claimant's case in a way that claimant's claims are

adequately explored.” Faria v. Comm’r of Social Sec.,

,

, at *1 (1st Cir. 1998). Furthermore,

“reversal of the ALJ's decision for failure to request

additional information is warranted only where the ALJ's failure

is unfair or prejudicial to the claimant's case.” Gaeta v.

Barnhart, No. 06-10500-BPW,

, at *6 n.4 (D. Mass.

Aug. 13, 2009). “Prejudice is demonstrated by showing that the

additional evidence might have led to a different decision.”

Keene v. Colvin, No. 14-cv-142-LM,

, at *7

(D.N.H. Oct. 27, 2014).

The ALJ did not commit error in this respect. Because

Bourque was represented by counsel, the ALJ was under no

heightened duty to develop the record, see Morris v. Astrue, No.

11-cv-248-JL,

, at *9 (D.N.H. Sept. 28, 2012),

and the ALJ was entitled to rely on Bourque’s counsel to

structure the case, see Faria,

, at *1. Here,

Bourque did not raise a claim relating to his intellectual

functioning, either in his application, in his pre-hearing

brief, or at the hearing. The court is therefore disinclined to

find fault with the ALJ’s conduct. Furthermore, Bourque raises

no claim of unfairness, and he makes no showing, let alone a

non-speculative one, that additional testing could have led to a

different decision. See

(“Mere conjecture or speculation

that additional evidence may be obtained . . . is insufficient

30 to warrant a remand.”). Therefore, the court declines to

reverse the ALJ’s decision on this ground.

CONCLUSION

For the foregoing reasons, Bourque’s motion to reverse

(doc. no. 11) is denied, and the Acting Commissioner's motion to

affirm (doc. no. 13) is granted. The clerk of the court shall

enter judgment in accordance with this order and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

July 23, 2018

cc: Counsel of Record

31