UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

April Lynne Hartford, Claimant

v. Case No. 17-cv-467-SM Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

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

April Hartford, moves to reverse or vacate the Acting

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 Acting

Commissioner objects and moves for an order affirming her

decision.

For the reasons discussed below, claimant’s motion is

denied, and the Acting Commissioner’s motion is granted. Factual Background

I. Procedural History.

In January 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 July 15, 2008. She subsequently amended

her alleged onset of disability to March 15, 2012. Admin. Rec.

at 293. Claimant was 33 years old at the time and had acquired

sufficient quarters of coverage to remain insured through March

of 2012. Claimant’s applications were denied and she requested

a hearing before an Administrative Law Judge (“ALJ”).

In June of 2016, claimant, her attorney, and an impartial

vocational expert appeared before an ALJ, who considered

claimant’s applications de novo. In July of 2016, the ALJ

issued his written decision, concluding that claimant was not

disabled, as that term is defined in the Act, at any time from

her alleged onset date through the date of the ALJ’s 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. Subsequently,

claimant filed a timely action in this court, asserting that the

ALJ’s decision is not supported by substantial evidence.

2 Claimant then filed a “Motion for Order Reversing the

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

the Acting Commissioner filed a “Motion for an Order Affirming

the Decision of the Commissioner” (document no. 8). Those

motions are pending.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts which, because

it is part of the court’s record (document no. 9), need not be

recounted in this opinion. 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

supported by substantial evidence. See

(g),

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

Human Services,

(1st Cir. 1991). Substantial

3 evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated

Edison Co. v. NLRB,

(1938). Importantly, 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. 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). The

Act places the initial burden on the claimant to establish the

existence of a disabling impairment. See Bowen v. Yuckert,

(1987); Santiago v. Secretary of 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

4 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 testimony of the claimant or

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:

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

5 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 Acting Commissioner’s motion to affirm

her 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, he first determined that

claimant had not been engaged in substantial gainful employment

since her alleged onset of disability: March 15, 2012. Admin.

Rec. at 21. Next, he concluded that claimant suffers from the

following severe impairments: “obsessive/compulsive disorder,

post-traumatic stress disorder, personality disorder and

panic/anxiety disorder.”

. But, the ALJ determined

that those impairments, whether considered alone or in

combination, did not meet or medically equal one of the

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

Rec. at 22-23.

Next, the ALJ concluded that claimant retained the residual

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

“the full range of work at all exertional levels,”

,

subject to the following non-exertional limitations: claimant’s

“ability to understand, remember and carry out instructions is

limited to simple routine tasks, she can frequently interact

with supervisors, can occasionally interact with co-workers and

the public, and can tolerate only a few routine changes in a

work setting.”

In light of those restrictions, the ALJ

concluded that claimant was not capable of performing her past

relevant work as either a personal care attendant or a licensed

nursing assistant.

. See also

(vocational expert’s testimony about claimant’s work history).

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 non-exertional limitations, “there are jobs that

exist in significant numbers in the national economy that the

claimant can perform.”

. Consequently, the ALJ

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

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

Discussion

Claimant challenges the ALJ’s decision on grounds that he

erred by giving insufficient weight to the opinions of Heidi

Crusberg, M.D. and Amanda Wood-Friend, APRN - two of claimant’s

primary care providers. Before turning to the merits of

claimant’s assertions, it is, perhaps, appropriate to recite a

brief summary of the medical evidence of record.

I. Medical Opinions.

In April of 2015, Dr. Edward Martin, a state agency

psychologist, reviewed claimant’s medical records and opined

that her mental impairments were not severe. Specifically, he

stated his belief that claimant had only a mild limitation in

her ability to do daily activities, function socially, and

maintain concentration, persistence, or pace. Admin. Rec. at

201. Dr. Martin also noted that claimant had suffered no

episodes of decompensation.

Also in April of 2015, Carolynne Shinn, RN, completed an

“APTD Medical Eligibility Review Summary” in connection with

claimant’s application for Medicaid benefits. She reported that

8 claimant likely suffered from bipolar syndrome, but that

claimant reported subjective improvement on medication.

Nevertheless, she noted that claimant continued to report being

easily overwhelmed, with difficulty concentrating. Admin. Rec.

at 555. Nurse Shinn also reported that claimant suffered from

recurrent severe panic attacks, and recurrent obsessions or

compulsions which are a source of marked distress. Id. at 556.

With respect to claimant’s personality disorder, Ms. Shinn

reported that claimant has “significant difficulty expressing

herself effectively and resolving conflict. . . . has poor

boundaries and difficulty being assertive [and] difficulty

controlling her anger [and] difficulty adapting to change and

becomes dysregulated with any increased stressors.” Id. at 558.

Ms. Shinn opined that claimant suffers from “moderate”

restriction in her activities of daily living; “moderate”

difficulty maintaining concentration, persistence, or pace; and

“marked” difficulty in maintaining social functioning. Id. at

560-61.

Dr. Herb Crosby, Ph.D., reviewed Ms. Shinn’s conclusions

and endorsed them. Id. at 564. He added the following:

As the MRT Nurse Reviewer summarized on the MERS, Ms. Hartford’s combination of impairments is severe and she has marked limitations in the “Social functioning” domain despite her interpersonal strengths (a mother,

9 a partner). Progress is already evident in treatment notes. Similarly with the domain of “ADL’s” symptoms at times interfere with self-care and community functioning and there is documented improvement with medications. In addition, symptoms interfere with “Concentration, persistence or pace” despite linear, clear thinking and memory functions. Felt progress has been reported and it appears to be relative to significant past levels of severity, leaving Ms. Hartford able to cope, as she was quoted, “tolerating the stresses and strains of her-life well.” Although symptoms are better managed, her ability to cope with interactions with others, with expected attendance, and with changes and stressors in a workplace remains impaired. With continued treatment, these persisting limitations will lessen.

Admin. Rec. at 564.

In March of 2016, Paul Maguire, M.D., one of claimant’s

treating sources, completed a “Mental Impairment Questionnaire”

in which he opined (consistent with the ALJ’s findings) that

claimant suffers from obsessive compulsive disorder, post-

traumatic stress disorder, and a borderline personality

disorder. Among other things, he opined that claimant suffered

from a “slight” impairment in her ability to perform activities

of daily living; “moderate” deficiencies in concentration

persistence, or pace; “marked” difficulties in maintaining

social functioning; and experienced three or more episodes of

deterioration or decompensation in work or work-like settings

(it is, however, unclear which episodes he is referring to).

Admin. Rec. at 603-04. He also opined that, on average,

10 claimant would likely be absent from work more than three times

each month as a consequence of her mental impairments, in

particular her “severe interpersonal anxiety and avoidance.”

Id. at 603. Finally, he opined that claimant had been similarly

impaired since September of 2012 (five months after claimant’s

date last insured). Id. at 606.

Even viewing that evidence in the light most favorable to

claimant, at best one might conclude that she suffers from a

“moderate” restriction in her activities of daily living;

“moderate” difficulty maintaining concentration, persistence, or

pace, and “marked” difficulty in maintaining social functioning.

And, despite Dr. Maguire’s suggestion to the contrary, the

record does not contain evidence of repeated episodes of

decompensation of extended duration. Consequently, the evidence

recounted above supports the ALJ’s conclusion that claimant does

not meet the “paragraph B” criteria for a disabling mental

impairment as described in listings 12.04 (“Depressive, bipolar

and related disorders”), 12.06 (“Anxiety and obsessive-

compulsive disorders”), or 12.08 (“Personality and impulse-

control disorders”). 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt.

A2. See Admin. Rec. at 22-23.

11 There is, however, opinion evidence suggesting that

claimant is more severely impacted by her non-exertional

limitations. In two “Psychological Capacities” reports (dated

April 25, 2011, and September 22, 2011 - both of which were

completed prior to claimant’s alleged onset of disability),

Amanda Wood-Friend, APRN, assessed claimant’s abilities in a

range of areas. In those reports, Nurse Wood-Friend documented

what she perceived to be a fairly sharp decline in claimant’s

ability to interact appropriately with others, to maintain

socially appropriate behavior, to maintain attention for

extended periods, to sustain a routine without frequent

supervision, and to perform at a consistent pace. Admin. Rec.

at 710-11. But, the opinions Nurse Wood-Friend expressed in

those forms are not consistent with her office notes documenting

her various encounters with claimant. Representative

observations in those notes include the following: “Mood and

affect: no depression, anxiety, or agitation,” id. at 441;

“patient reports doing well on current medication. Denies

worsening anxiety or depression. Denies thoughts of self harm

or suicidal ideations. Denies any medication side effects or

intolerance to current medication,” id. at 436; and “patient

denies anxiety, suicidal ideation, depression,” id. at 393.

12 In November of 2014, claimant transitioned her primary care

from Nurse Wood-Friend to Heidi Crusberg, M.D. See Id. at 386.

Notes from Dr. Crusberg’s initial meeting with claimant

reference claimant’s mental status only briefly, noting:

“Bipolar disorder: feels control is ok on current meds.” Id. at

387. Dr. Crusberg reported that, during that meeting with

claimant, she observed “no depression, anxiety, or agitation.”

Id. About a month after that initial appointment, claimant

returned to Dr. Crusberg’s office a second time, to “discuss

paperwork” related to claimant’s applications for disability

benefits. And, with regard to claimant’s mental impairments,

Dr. Crusberg wrote:

BIPOLAR DISORDER. [S]he is out of work due to [continued] severe bipolar and OCD and PTSD - she is engaging in treatment with a good plan - counselling, classes and psych meds. Unfortunately she had these [symptoms] for years and were sub-optimally [treated], so pattern of anxiety and mood dysregulation is well- established. She has a long road ahead of her but at least is on the right track. Due to mood dysregulation it is difficult for her to interact with people, so will remain out of work and I can sign forms pertaining to disability.

Admin. Rec. at 385. Dr. Crusberg then completed a

“Psychological Capacities” form, on which she checked a series

of boxes indicating that claimant has “marked” limitations in

the following areas: interacts appropriately with others,

maintains socially acceptable behavior, maintains attention for

13 extended periods, sustains routine without frequent supervision,

and performs at a consistent pace. Id. at 713. But, based upon

Dr. Crusberg’s office notes, the precise bases for her opinions

are not entirely clear (other than, of course, her review of

claimant’s medications and her brief discussion with claimant

about her symptoms).

Indeed, Dr. Crusberg’s notes from claimant’s next office

visit (in May of 2015), while acknowledging claimant’s reports

of a history of disabling anxiety, suggest that claimant’s

condition had substantially improved - to the point that she

felt no need to fill her prescription for Lamictal. See Admin.

Rec. at 570 (“Patient states that things are well. She is now

taking 20mg Prozac. No concerns today. Medications verified as

current and accurate by patient. Needs disability forms filled

out for herself. Last year her anxiety was so bad that she was

crying all the time and having trouble getting out of bed. She

feels that she is able to function as a mother better now. But

not ready to go back to work on regular basis. She is still

working through some real issues - like past history of abuse.

And her anxiety can still feel raw. Currently just taking

Prozac - never filled Lamictal and has responded well to

counselling.”). See also Id. at 573 (“Mental status exam. Mood

and affect: no depression, anxiety, or agitation.”).

14 II. The ALJ’s Decision.

As noted above, claimant faults the ALJ for affording

“little weight” to the opinions of Dr. Crusberg and for failing

to acknowledge the opinions of Nurse Wood-Friend. With regard

to Dr. Crusberg (claimant’s treating physician since about six

months after her alleged onset of disability), the ALJ

supportably concluded that:

Dr. Crusberg’s, MD, opinion for marked limitation of social functioning and sustained concentration and maintenance of routines (Exhibit B6F) is not supported by medical evidence to [the] contrary documented in the therapy progress notes of treating source Dr. Maguire, MD (B10F), discussed in this decision. Dr. Crusberg, MD, provided no mental health treatment to the claimant as did Dr. Maguire, MD, and her own treatment notes (Exhibits B2F & B5F) do not reflect those limitations, which appear[] to be based upon the claimant’s self-report of symptoms (Exhibit 5B-3), that are not supported by objective clinical findings consisting of normal mental status examination, including intact judgment and memory (Exhibit B5F-9).

Admin. Rec. at 26. In short, the boxes Dr. Crusberg checked

when completing the “Psychological Capacities” form are

inconsistent with (and far more limiting) than her own notes

documenting her interactions with, and observations of, claimant

(as reported in her treatment notes). Under those

circumstances, a treating source’s opinions are not entitled to

controlling weight. See 20 C.F.R. ' 404.1527(c)(2) (to be

entitled to controlling weight, a treating source’s opinions

15 must be “well-supported by medically acceptable clinical and

laboratory diagnostic techniques and [cannot be] inconsistent

with the other substantial evidence in [the] case record.”).

Moreover, the ALJ gave an adequate explanation for his decision

to discount those opinions offered by Dr. Crusberg. See

generally Social Security Ruling, Policy Interpretation Ruling

Titles II and XVI: Giving Controlling Weight to Treating Source

Medical Opinions, SSR 96-2p,

(July 2, 1996) (when

the ALJ renders an adverse disability decision, his or her

notice of decision “must contain specific reasons for the weight

given to the treating source’s medical opinion, supported by the

evidence in the case record, and must be sufficiently specific

to make clear to any subsequent reviewers the weight the

adjudicator gave to the treating source’s medical opinion and

the reasons for the weight.”).

Likewise, the opinions of Nurse Wood-Friend, as expressed

in the “Psychological Capacities” form she completed, are more

extreme than suggested by her office treatment notes. See,

e.g., Admin. Rec. at 393, 396, 399, 402-03, 406, 412, 416, 420,

423, 436, 441. Additionally, Nurse Wood-Friend prepared those

two reports prior to claimant’s alleged onset of disability.

While not entirely irrelevant, opinions that predate a

claimant’s alleged onset of disability are of limited relevance.

16 See, e.g., Gaudreault v. Astrue, No. 11-cv-73-JL,

at *7,

(D.N.H. June 18, 2012). That is

particularly true in this case, where those earlier opinions

actually suggest greater limitations than are supported by the

medical evidence of record post-dating claimant’s alleged onset

of disability (implying some progress in the treatment of

claimant’s symptoms). Furthermore, as the Acting Commissioner

notes, Nurse Wood-Friend opined that claimant’s disabling

limitations were expected to last only six months, Admin. Rec.

at 710-11 - less than the 12-month period required to establish

disability. See

(d)(1)(A), 1382c(a)(3).

Conclusion

There is no doubt that claimant is substantially affected

by her mental impairments. The letter from her mother (which

was prepared and entered into the record after the ALJ issued

his unfavorable decision) is particularly compelling. Admin.

Rec. at 13-14. But, judicial review of the ALJ’s decision is

both limited and highly 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. 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

17 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 Acting Commissioner and claimant,

the court concludes that there is substantial evidence in the

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

“disabled,” as that term is used in the Act, at any time prior

to the date of the ALJ’s decision (July 13, 2016). The ALJ’s

assessment of the proper amount of weight to afford the opinions

18 of Dr. Crusberg and Nurse Wood-Friend, as well as his RFC

determination, are well-reasoned and adequately supported by

substantial documentary evidence.

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

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

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

denied, and the Acting Commissioner’s motion to affirm her

decision (document no. 8) 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

March 19, 2018

cc: Christopher G. Roundy, Esq. Terry L. Ollila, AUSA

19