UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David A. Newman

v. Civil No. 17-cv-455-LM Opinion No.

Nancy A. Berryhill, Acting Commissioner of Social Security

O R D E R

David A. Newman seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of

the Social Security Administration, denying his application for

disability insurance benefits. Newman moves to reverse the

Acting Commissioner’s decision, contending that the decision of

the Administrative Law Judge (“ALJ”)—specifically, the residual

functional capacity assessment—is not supported by substantial

evidence. The Acting Commissioner moves to affirm. For the

following reasons, the Acting Commissioner’s decision 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). 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,

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

2 § 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. 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).

BACKGROUND1

On August 17, 2016, Newman applied for disability insurance

benefits, claiming a disability that began on February 21, 2015.2

He was 54 years old at the time of his application, had a high

school education, and had previously worked as a photocopy

machine operator and security officer. Newman alleged that he

was disabled as a result of right upper extremity dysfunction,

chronic back pain following fusion surgery, right lower

extremity arthritis, depression, post-traumatic stress disorder

(“PTSD”), panic disorder, anxiety disorder, and bilateral upper

extremity tremors. Newman’s application was initially denied,

and he sought review before an ALJ.

1 A detailed statement of the facts can be found in the parties’ Joint Statement of Material Facts (doc. no. 9).

2 This is Newman’s second application for such benefits. An ALJ previously denied his first application for disability insurance benefits in a decision dated February 20, 2015.

3 I. Hearing Evidence3

On May 16, 2017, a hearing before an ALJ was held. Newman

was represented by an attorney and testified at the hearing.

Jack Bopp, a vocational expert, appeared and testified by phone.

Regarding functional limitations, there is evidence in the

record to support the position that Newman’s anxiety and

depression impeded his abilities to concentrate, interact with

others socially, and be out in public. For example, in June

2016, Newman reported to Tara Fraser, Physician’s Assistant and

Newman’s primary care provider, that he was anxious in crowds

and afraid to leave his house. Newman reported that, as a

result of his anxiety, crowds overwhelmed him, and he limited

the extent to which he went out in public. At the hearing,

Newman also testified that on one occasion, when he went to a

concert and forgot to take his anxiety medication, he had a

panic attack as he entered the venue.

This view of Newman’s anxiety as functionally debilitating

is supported by the consultative psychological examination

performed by Robert Prescott, Ph. D, in November 2016. Dr.

Prescott examined Newman, spoke with him about his mental

health, and reviewed some medical records. Dr. Prescott

Newman does not challenge the ALJ’s RFC assessment as it 3

relates to his physical capabilities, so the court limits its recitation of the relevant facts accordingly.

4 concluded that Newman could not be expected to maintain

concentration for extended periods, manage typical levels of

stress “found in settings outside the home,” or “interact

effectively . . . with others on the job.” Admin. Rec. at 480.

On the other hand, there is evidence in the record showing

that Newman could effectively control his anxiety through

medication. Newman reported as much to Fraser, stating that he

could attend concerts, visit museums, and do “more day to day

activities” with the help of his anxiety medication. Admin.

Rec. at 395. At the hearing, Newman testified that he took the

medication before leaving his house, going to the grocery store,

or going to Walmart. When he attended a concert, however, he

would need to double the dosage.

State agency psychologist Patricia Salt, Ph. D., provided

an assessment consistent with this latter set of evidence. She

reviewed Dr. Prescott’s opinion and the records from Newman’s

primary care provider. Dr. Salt concluded that Newman could

maintain attention and concentrate for extended periods of time,

could “get along adequately with those he interacts with,” and

could appropriately respond to criticism, though she also noted

that Newman may be “distracted by the presence of others in his

workspace . . . if there are groups of people around him.”

Admin. Rec. at 87.

5 II. ALJ’s Decision

The ALJ issued his decision on June 7, 2017. As is

relevant here, the ALJ found that Newman had two severe mental

impairments, depression and anxiety, but that they did not meet

any listed impairments. Turning to Newman’s RFC, the ALJ

concluded that Newman could perform a limited range of light

work, which included nonexertional limitations that Newman could

only perform “simple, routine tasks,” and have no more than

“frequent interaction with coworkers and the general public.”

Admin. Rec. at 27; see also Dussault v. Colvin, No. 15-cv-441-

JL,

, at *3 (D.N.H. Feb. 16, 2017) (noting that

“frequent” activity “occurs between one-third and two-thirds of

the time”). The ALJ rejected the claim that Newman’s mental

impairments significantly undermined his ability to perform work

or be outside of the home. The ALJ relied on the evidence

showing that, with medication, Newman was able to manage his

anxiety while in public. The ALJ gave “great weight” to Dr.

Salt’s opinion in determining Newman’s RFC, finding, among other

things, that it was consistent with Newman’s “longitudinal

medical record.” Admin. Rec. at 31.

Based on this assessment and the testimony of the

vocational expert, the ALJ determined that Newman could perform

his past relevant work as a photocopy machine operator.

6 Therefore, the ALJ found that Newman was not disabled within the

meaning of the Social Security Act. The Appeals Council denied

Newman’s request for review, making the ALJ’s decision the

Acting Commissioner’s final decision.

DISCUSSION

Newman argues that the ALJ’s RFC assessment, as it pertains

to his mental impairments, is not supported by substantial

evidence. He raises the following errors: (1) the ALJ’s finding

that medication alleviated Newman’s anxiety is inconsistent with

his hearing testimony; (2) the ALJ incorrectly stated that

Newman did not attend counseling; (3) the ALJ erred in relying

on Dr. Salt’s opinion, because Dr. Salt failed to review

Newman’s counseling notes;4 (4) the ALJ’s reason for rejecting

Dr. Prescott’s opinion is erroneous; and (5) the ALJ failed to

note in the decision that Newman “broke down in tears due to

stress” after the administrative hearing, doc. no. 6-1 at 4.

The court discusses each argument in turn.

I. Anxiety Medication

The ALJ found that the symptoms caused by Newman’s anxiety,

including his abilities to interact with others and be out in

4 In his brief, Newman makes this argument with respect to Dr. Trice, but context makes clear that he is actually referring to Dr. Salt. See doc. no. 6-1 at 3.

7 public, could be largely controlled through medication. Newman

argues that this finding is inconsistent with his hearing

testimony that “he frequently had to double up on his anxiety

medication dosage and that it had a sedating effect and that on

occasion when he forgot his prescription he would self-medicate

with alcohol.”

The court is not persuaded. As an initial matter, Newman’s

characterization of his testimony is not consistent with the

transcript. Rather, Newman testified that he doubled his dosage

of medication when he attended concerts, which he did

“occasionally.” Admin. Rec. at 65. And he stated that at one

concert, he forgot his medication and had a glass of scotch to

calm down. Id. at 65-66. These isolated incidents are not

materially inconsistent with the medical records, which indicate

that through medication, Newman was generally able to control

his anxiety while in public.

Even if they were inconsistent, it was for the ALJ to

resolve such conflicts. See Proulx v. Astrue, No. 11-cv-496-PB,

, at *4 (D.N.H. Oct. 11, 2012) (“It is the role

of the ALJ, not the court, to resolve conflicts in the

evidence.”). Given Newman’s own reports to Fraser about the

efficacy of his medication, as well as his acknowledged ability

8 to engage in a variety of activities in public, the ALJ’s

finding has substantial support in the record. See

II. Misstatement Regarding Counseling

Newman next contends, and the Acting Commissioner concedes,

that the ALJ incorrectly stated in the decision that Newman did

not receive counseling for his mental impairments. In fact, as

both medical records and Newman’s testimony at the hearing

establish, Newman received behavioral-health counseling from a

social worker intermittently in 2014 and 2016.

A brief explanation of this counseling will be helpful to

provide context. Between March and April of 2014, and again

between September and October of 2016, Newman attended

counseling sessions for his anxiety, depression, and alleged

PTSD. The records documenting these sessions shed more light on

the specific triggering events for Newman’s anxiety and PTSD,

the severity of his anxiety and depression, and the ways in

which, absent medication, these mental impairments affect and

impair his abilities to interact with others and be out in

public.

The question is whether the ALJ’s error justifies remand.

The court concludes that it does not. A mischaracterization or

misstatement of the evidence does not necessarily compel remand.

See, e.g., Musto v. Halter,

(D. Mass.

9 2001) (collecting cases for proposition that “minor

discrepancies” between record and facts as characterized by ALJ

will not always warrant remand). Courts examine the effect of

the error and determine whether the ALJ’s decision remains

supported by substantial evidence. See, e.g., Perez Torres v.

Sec’y of Health & Human Servs.,

(1st Cir.

1989); Floyd v. Berryhill, No. 15-cv-456-PB,

, at

*5 (D.N.H. June 21, 2017); Musto,

.

Similarly, an ALJ’s failure to address certain evidence will not

“undermine the validity of her conclusion” where “that

conclusion was supported by citations to substantial medical

evidence in the record and the unaddressed evidence was either

cumulative of the evidence discussed by the ALJ or otherwise

failed to support the claimant's position.” Lord v. Apfel,

(D.N.H. 2000).

Here, the court concludes that the ALJ’s error does not

justify remand. Indeed, besides identifying the error, Newman

does not explain how the counseling notes undermine the ALJ’s

decision. The counseling notes further substantiate the fact

that Newman has significant anxiety, and they reveal the extent

to which his mental impairments can impact his functioning. But

such information is merely cumulative of the other evidence that

10 established the nature and extent of Newman’s mental impairments

and the symptoms resulting therefrom.

More to the point, the court fails to see how such

information casts doubt on the ALJ’s determination. The ALJ

based his RFC assessment not on a finding that Newman did not

have severe mental impairments, but on the finding that any

functional limitations resulting from such impairments were

adequately controlled by medication. The counseling notes do

not concern the efficacy of Newman’s medication and therefore do

not undermine the basis for the ALJ’s conclusion. Thus, remand

on that basis is not warranted. See Ward v. Comm’r of Social

Sec.,

(1st Cir. 2000) (“[A] remand is not

essential if it will amount to no more than an empty

exercise.”).

III. Dr. Salt’s Opinion

Newman next argues that the ALJ erred when he afforded

greatest weight to the opinion of Dr. Salt, because Dr. Salt did

not review the above-described counseling notes. While Newman

may be correct, the court does not consider it reversible error.

“[T]he 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.”

Brown v. Colvin, No. 14-cv-256-JL,

, at *3

11 (D.N.H. July 17, 2015). Such reliance may nevertheless be

reasonable if the unconsidered evidence does not establish

greater limitations, or if it is consistent with the medical

opinion. See

(discussing in context of opinion that failed

to account for later medical records).

Here, Dr. Salt reviewed the medical records in which Newman

reported that his anxiety medication alleviated his symptoms,

and she concluded that Newman’s mental impairments did not

significantly limit his ability to work, interact with others,

or be in public. The counseling notes—which, as noted, do not

concern the efficacy Newman’s medication—are not inconsistent

with Dr. Salt’s reasoning or opinion.

More generally, it is for the ALJ to resolve conflicts

between conflicting medical opinions, and in this case the ALJ’s

resolution finds “substantial support in the record.” Larocque

v. Colvin, No. 14-cv-230-JL,

, at *2 (D.N.H. May

14, 2015). The ALJ relied on Dr. Salt’s opinion not only

because it was consistent with the longitudinal medical record,

but because of her expertise as a licensed psychologist and her

knowledge of the disability program and its requirements. These

were proper factors to consider. See

(c)(4)-(6) (stating that ALJ may give medical opinion

more weight if it is made by a specialist, if it is consistent

12 with the record as a whole, or if the medical source understands

“our disability programs and their evidentiary requirements”).

Accordingly, Newman’s argument does not warrant reversal or

remand.

IV. Dr. Prescott’s Opinion

Newman contends that the ALJ erred when he give little

weight to Dr. Prescott’s opinions that Newman could not

effectively work outside the home or interact with others as a

result of his mental impairments. The ALJ discounted these

opinions because “treating provider Ms. Fraser noted controlled

anxiety when the claimant took medication for anxiety as

prescribed.” Admin. Rec. at 31. Newman considers the ALJ’s

reasoning erroneous because, elsewhere in his decision, the ALJ

rejected Fraser’s RFC opinions on the ground that Fraser was

“not an acceptable medical source.”

The court disagrees.

In the first place, the ALJ was correct in stating that

Fraser, as a Physician’s Assistant, was not an acceptable

medical source. See Smith v. Berryhill, No. 16-cv-567-JHR,

, at *5 (D. Me. Mar. 26, 2018). But the ALJ did not

then rely on a “medical opinion” of Fraser to reject Dr.

Prescott’s opinion. Rather, the ALJ rejected Dr. Prescott’s

opinions because they were inconsistent with Newman’s own

reports to Fraser, which Fraser merely recorded in her treatment

13 notes. See

(a)(1) (defining “medical

opinions” as “statements from acceptable medical sources that

reflect judgments about the nature and severity of [the]

impairment(s)” (emphasis added)). Thus, there was no

inconsistency between the ALJ’s observation that Fraser was not

an acceptable medical source and his reliance on Fraser’s

treatment notes to discount some of Dr. Prescott’s opinions.

V. Post-Hearing Conduct

Newman’s final argument is that the ALJ failed to note in

his decision that, at the close of the hearing, Newman “broke

down in tears due to the stress of testifying.” Doc. no. 6-1 at

4. Newman has not shown that he is entitled to relief on this

basis. As the Acting Commissioner notes, there does not appear

to be any evidence in the record about this incident. Thus,

absent further developed argument from Newman, the court

discerns no reason why it should consider this alleged incident,

or indeed, why the ALJ should have considered it. See

Evangelista v. Sec’y of Health & Human Servs.,

(1st Cir. 1987) (“In the ordinary course, the district courts

review social security appeals on the administrative record,

without taking new evidence.”); Aldea v. Astrue,

(D. Mass. 2011) (“It is well-settled that an

administrative law judge is not permitted to rely on evidence

14 outside the record.”); see also Nelson v. Apfel,

(7th Cir. 1997) (concluding that, in reaching disability

determination, ALJ improperly considered observations that he

made of claimant at hearing conducted immediately after

claimant’s hearing).

In sum, none of the grounds raised by Newman warrants

reversal or remand for further proceedings.

CONCLUSION

For the foregoing reasons, the Acting Commissioner's motion

to affirm (doc. no. 8) is granted, and Newman’s motion to

reverse (doc. no. 6) is denied. 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

May 15, 2018

cc: Counsel of Record

15