UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bradley Nichols

v. Case No. 16-cv-443-PB Opinion No.

US Social Security Administration, Acting Commissioner

MEMORANDUM AND ORDER

Bradley Nichols challenges the denial of his claims for

Social Security disability income (“SSDI”) benefits pursuant to

(g). He contends that the Administrative Law

Judge (“ALJ”) erred in formulating his residual functional

capacity (“RFC”) by failing to adequately consider his mental

impairments and by improperly weighing the opinion of his

treating psychologist. The Acting Commissioner, in turn, moves

for an order affirming the ALJ’s decision. For the reasons that

follow, I deny Nichols’s motion and affirm the Commissioner’s

decision.

I. BACKGROUND

Nichols is a 43 year-old man with a high school education.

Doc. No. 14 at 2. He has previously worked as a tow truck

operator, an auto mechanic, a bench inspector, a machinist, and

a construction worker. See Administrative Transcript (“Tr.”) 46-47, 65. He alleges that he has been disabled since December

28, 2011, due to a combination of physical and mental

impairments, including chronic leg pain, Hepatitis C, major

depressive disorder, post-traumatic stress disorder (“PTSD”),

and opiate dependence in remission. See Tr. 19, 22-23. 1

A. Procedural History

Nichols’s first filed for SSDI benefits in January 2012,

alleging a date last insured of December 31, 2012. Doc. No. 14

at 1. His claim progressed to a hearing before an ALJ, Ruth

Kleinfeld, who issued a fully favorable decision on November 5,

2013, finding that Nichols had been disabled since his alleged

onset date. Tr. 121, 123. On August 22, 2014, however, the SSA

Appeals Council vacated ALJ Kleinfeld’s decision on its own

motion, finding two errors of law that, in its view, required

remand for further administrative development. See Tr. 123-24.

Because ALJ Kleinfeld (“the first ALJ”) had retired by the time

of the Appeals Council’s order, Nichols’s case was remanded to a

different ALJ, Thomas Merrill. See Tr. 123-24, 341.

A second hearing was held on September 30, 2015 before ALJ

Merrill (“the second ALJ”). On December 22, 2015, the second

1 In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts, (Doc. No. 14). See LR 9.1. Because that joint statement is part of the court’s record, I only briefly recount the facts here. I discuss further facts relevant to the disposition of this matter as necessary below. 2 ALJ issued his written decision, concluding that Nichols was not

disabled at any time from December 11, 2011, the alleged onset

date, through December 31, 2012, his date last insured. Tr. 34.

On August 2, 2016, the Appeals Council denied Nichols’s request

to review the second ALJ’s decision, see Tr. 1, thus making that

decision the final decision of the Acting Commissioner. Nichols

now appeals.

B. First ALJ’s Decision & Appeals Council’s Remand

Following a hearing held in August 2013, the first ALJ

determined that Nichols’s had been disabled from December 28,

2011, through November 5, 2013, the date of her decision. Tr.

114, 120. She reached that conclusion after applying the five-

step, sequential analysis required under

.

At step one the first ALJ determined that Nichols had not

engaged in substantial gainful activity since December 28, 2011,

the alleged onset date. At step two, she determined that

Nichols suffered from “the following severe impairments: chronic

leg pain; gastroesophageal reflux disease (“GERD”); sleep apnea;

hepatitis; depression with anxiety; [PTSD]; and opiate

dependence in remission.” Tr. 116. At step three, she found

that Nichols’s impairments did not equate to any listing in 20

C.F.R. Part 404, Subpart P, Appendix 1 that would render him

disabled per se.

3 At step four, the first ALJ determined that Nichols had the

mental RFC to perform “light work,” with restriction “to brief,

unskilled, uncomplicated tasks; and brief and superficial

interaction with co-workers, supervisors, and the public.” Tr.

116-17. She further determined that Nichols’s ability to

concentrate, persist, and sustain pace was limited “to two-hour

blocks throughout the day.” Tr. 117. In making that finding

she considered Nichols’s full medical record up until the date

of the decision as well as his subjective complaints and

testimony as to the severity of his mental conditions, which she

found “generally credible.” Tr. 119. At step five, she

determined that the demands of Nichols’s past relevant work

exceeded his RFC, and ultimately concluded that there were no

jobs in significant numbers in the national economy that Nichols

could perform.

In reaching this step-five conclusion, the first ALJ

exclusively relied upon the Medical Vocational Guidelines, 20

C.F.R. Part 404, Subpart P, App. 2 (the “Grid”), rather than any

vocational expert testimony. See Tr. 120. She noted that in

light of Nichols’s age (“younger individual”), education (“high

school graduate”), work experience (“semiskilled - skills not

transferable”), and RFC, a finding of “not disabled” would

ordinarily be directed by Medical-Vocational Rule 202.21. Tr.

120. In considering the added effect of Nichols’s nonexertional

4 limitations, however, the first ALJ ultimately concluded that “a

finding of ‘disabled’ [was] appropriate under the framework of

[the] rule.” Tr. 120. Finally, the first ALJ determined that

Nichols’s substance use disorder was not a contributing factor

material to the finding of disability, briefly explaining that

as of July 2013 “he was doing well,” “was stable,” and was

involved with group meetings three times per week. See Tr. 121.

Nine months later, in August 2014, the Appeals Counsel

vacated the first ALJ’s decision on its own motion. Tr. 123-

125. In a written order, the Appeals Council explained its

decision to remand was based upon two errors. First, the

Appeals Council found that the first ALJ had erred at step-five

by failing to obtain vocational expert evidence that Nichols’s

could not perform other work despite his functional limitations.

Tr. 123-24. Second, it found that the first ALJ had also erred

by failing to properly conduct the additional analysis required

when a claimant has a history of drug addiction or alcoholism

(“DAA Evaluation Process”), which takes place following step-

five. See Tr. 124; see also

; Social

Security Ruling 13-2P,

(S.S.A. Mar. 22, 2013).

Although the first ALJ determined that Nichols’s substance use

was not a contributing factor material to her disability

finding, the Appeals Council found that her decision lacked the

specific analysis required to support that conclusion. Tr. 124.

5 Due to those two errors of law, the Appeals Council concluded

that the first ALJ’s decision was not supported by substantial

evidence, despite its preliminary finding that her step-four RFC

assessment for the period through December 31, 2012 was

substantially supported by the record. Tr. 123.

As a result, the Appeals Council vacated the first ALJ’s

decision and remanded Nichols’s claim to a second ALJ for a new

hearing. Tr. 125. Among other instructions upon remand, the

order directed the second ALJ to “[g]ive further consideration

to [Nichols’s] maximum [RFC],” and “[o]btain evidence from a

vocational expert to clarify the effect of the assessed

limitations on [Nichols’s] occupational base.” Tr. 124. The

order also instructed that “[i]f [Nichols] is found disabled,”

the second ALJ must “conduct the further proceedings required to

determine whether substance abuse is a contributing factor[]

material to the determination of disability.” Tr. 125.

II. THE SECOND ALJ’S DECISION

Following remand and a second hearing in August 2015, the

second ALJ issued a written decision on December 22, 2015,

concluding that Nichols had not been disabled at any time during

the pertinent period from December 28, 2011 through December 31,

6 2012. 2 See Tr. 34. His conclusion followed from his own

application of the five-step, sequential analysis to Nichols’s

claim. At steps one through three, the second ALJ found that

Nichols (i) had not engaged in substantial gainful activity

since December 11, 2011; (ii) had severe impairments of “status

post ankle fracture, Hepatitis C, major depressive disorder and

[PTSD]”; and (iii) did not have an impairment that met or

medically equaled the severity of one of the listed impairments

in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 22-23.

In reaching the step-three conclusion with regards to

Nichols’s mental impairments, the second ALJ thoroughly

considered the so called “paragraph B” criteria. 3 Specifically,

the ALJ found that Nichols’s mental impairments resulted in (i)

2 Pursuant to the SSA’s Hearings, Appeals, and Litigation Law Manual (“HALLEX”), see HALLEX I-2-6-58A, the second ALJ’s review upon remand was limited to the consideration of “evidence dated within 12-months of the alleged onset date,” as those records are the only records “material to show that the allegedly disabling conditions [had] existed” for 12 months, as required by applicable regulations. Tr. 20. Discussion of evidence prior to that period was limited to providing context and determining credibility issues. Tr. 20. Nichols’s does not appear to challenge the basis of that conclusion. 3 “To satisfy the ‘paragraph B’ criteria, the mental impairments must result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration.” Tr. 24. “A marked limitation means more than moderate but less than extreme.”

7 mild restrictions in activities of daily living, (ii) moderate

difficulties in social functioning, and (iii) moderate

difficulties in maintaining concentration, persistence, or pace.

Tr. 24-25. He further found that Nichols had not experienced

any episodes of decompensation for an extended duration. Tr.

25. In making those decisions, the second ALJ gave substantial

weight to the opinion of state consultative psychologist,

Michael Schneider, Psy.D., who had reviewed Nichols’s existing

record during the pertinent period and concluded that he had the

mild and moderate limitations discussed above. Tr. 25; see Tr.

101.

At step four, the second ALJ determined that Nichols had

the RFC to perform “light work,” as defined in

(b), with certain limitations. Tr. 26. Regarding

physical limitations, the second ALJ found that Nichols could

only perform postural activities on an occasional basis,

although he could balance frequently, and that he had unlimited

use of his hands and feet to operate foot controls, push, and

pull. 4 See Tr. 26. Regarding mental limitations, the second ALJ

determined that Nichols was able “to understand, remember, and

carry out [one-to-three] step instructions without special

supervision,” and was able to complete a normal eight hour

4 Nichols does not challenge the second ALJ’s decision with respect to his physical impairments. 8 workday and 40 hour work week. Tr. 26. He also found that

Nichols could “interact appropriately with coworkers and

supervisors, with occasional contact with the general [public];

and [could] respond[] to change in the work setting” under those

circumstances. Tr. 26, 66. In making his finding, the second

ALJ considered a variety of medical sources, but gave “great

weight” to the opinion of Dr. Schneider, which will be further

discussed herein. Tr. 32. In light of this RFC and vocational

expert testimony, the second ALJ concluded that Nichols was

unable to perform any past relevant work. Tr. 33.

Finally, at step five, the ALJ ultimately determined that

Nichols was “not disabled” during the period under review. Tr.

33-34. In support of that conclusion, the second ALJ found that

in light of his age, education, work experience, and RFC during

the pertinent period, Nichols would have been capable of

performing certain light-exertional jobs that existed in

significant numbers in the national economy. See Tr. 33-34. He

based this conclusion on the testimony of a vocational expert,

who opined at Nichols’s second hearing that a hypothetical

person with Nichols’s age, education, work experience, and RFC

could perform the representative occupations of assembler,

merchandise marker, and housekeeper. Tr. 34, 65-67.

Accordingly, the ALJ found that Nichols was “not disabled”

9 during the period from December 11, 2011 through December 28,

2012. Tr. 34.

III. STANDARD OF REVIEW

I am authorized to review the pleadings submitted by the

parties and the administrative record and enter a judgment

affirming, modifying, or reversing the “final decision” of the

Commissioner. See

(g). That review is limited,

however, “to determining whether the ALJ used the proper legal

standards and found facts [based] upon the proper quantum of

evidence.” Ward v. Comm’r of Soc. Sec.,

(1st

Cir. 2000). I defer to the ALJ’s findings of fact, so long as

those findings are supported by substantial evidence.

Substantial evidence exists “if a reasonable mind, reviewing the

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

to support his conclusion.” Irlanda Ortiz v. Sec’y of Health &

Human Servs.,

(1st Cir. 1991) (per curiam)

(quoting Rodriguez v. Sec’y of Health & Human Servs.,

(1st Cir. 1981)).

If the ALJ’s factual findings are supported by substantial

evidence, they are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. If,

however, the ALJ derived her findings by “ignoring evidence,

misapplying the law, or judging matters entrusted to experts,”

10 her findings are not conclusive. Nguyen v. Chater,

(1st Cir. 1999) (per curiam). The ALJ is responsible for

determining issues of credibility, drawing inferences from

evidence in the record, and resolving conflicts in the evidence.

See Irlanda Ortiz,

.

IV. ANALYSIS

Nichols contends that the second ALJ’s decision was not

supported by substantial evidence based on several grounds.

Doc. No. 8-1 at 2. First, he argues that the second ALJ’s

mental RFC was flawed in that “it was not based on the record as

a whole and [did] not consider the effect” of Nichols’s “mental

impairments.” Id. at 3. He principally faults the second ALJ

for inadequately explaining his divergence from the first ALJ’s

mental RFC determination. Id. Second, he argues that the

second ALJ erred in failing to adequately explain the weight

given to certain medical sources in formulating Nichols’s RFC.

Id. at 10. He specifically faults the second ALJ’s treatment of

the opinion evidence of Melissa Perrino, M.A., Nichols’s

treating mental-health clinician; Marianne Marsh, M.D., one of

Nichols’s treating psychologists; and the evidence of Nichols’s

prior award of disability benefits by the state of New

Hampshire. Id. at 6-10. Third, Nichols argues that the second

ALJ erred in relying on a vocational expert’s testimony because

11 the hypothetical posed to the expert at step-five was not based

upon substantial evidence. Id. at 12; Doc. No. 11-1 at 22.

Finally, Nichols argues that the second ALJ erred by failing to

comply with the Appeals Council’s order directing him to conduct

the analysis necessary for determining whether Nichols substance

abuse was a contributing factor “material to the determination

of disability.” Doc. No. 8-1 at 13.

In response, the Acting Commissioner contends that the

second ALJ’s decision is supported by substantial evidence and

should be affirmed. Doc. No. 11-1 at 24. She argues that the

second ALJ’s mental RFC determination was based on substantial

evidence, and that he appropriately considered the expert

opinions identified by Nichols. Id. at 4-7. She further argues

that because the second ALJ did not find Nichols disabled, he

was not required to conduct the analysis pertaining to material

contribution of Nichols substance abuse. Id. at 24. I address,

and reject each of Nichols’s arguments in turn.

A. Failure to Adequately Consider Mental Impairments

Nichols first claims that the ALJ erred in formulating his

RFC by failing to adequately consider the limiting effects of

his mental health impairments. He advances two subsidiary

arguments to support that contention. First, he argues that the

second ALJ’s mental RFC finding was substantially less

restrictive than the first ALJ’s RFC determination. He argues

12 that because the Appeals Council found that the first ALJ’s RFC

finding was substantially supported by the record, the second

ALJ’s failure to explain the basis for his divergence from the

first ALJ’s decision constituted reversible error. Doc. No. 8-1

at 3. Second, citing specific portions of his medical record,

Nichols argues that his mental impairments impose “far greater

limitations” than those reflected in the second ALJ’s RFC, and

that the second ALJ’s RFC is therefore not supported by

substantial evidence. Id. at 6. Neither argument is

persuasive.

1. Difference in Subsequent RFC Determination Upon Remand

First, Nichols faults the second ALJ for formulating a

“less restrict[ive]” mental RFC than that formulated by the

first ALJ and failing to explain “why” his mental RFC finding

deviated from the first ALJ’s, which the Appeals Council found

substantially supported by the record. Id. at 3-5. This

argument is flawed for a number of reasons. To start, even

assuming that the two mental RFC’s meaningfully differ, 5 there is

5 Although the two RFC’s are worded differently, they do not appear to meaningfully differ in the functional capacity they envision. The first ALJ determined that Nichols had the mental RFC to perform “light work,” with restriction “to brief, unskilled, uncomplicated tasks; and brief and superficial interaction with co-workers, supervisors, and the public,” with an additional limitation on concentration, persistence, and pace “to two-hour blocks throughout the day.” Tr. 116-17. By comparison, the second ALJ determined that Nichols had the mental RFC to perform “light work,” with the ability to 13 no general requirement that an ALJ tasked with deciding a

remanded claim is in any way bound by the findings or

conclusions of a prior ALJ whose decision has since been

vacated. See Gibbs v. Barnhart,

(11th

Cir. 2005); Nolan v. Colvin, No. 4:15-cv-935,

,

*4 (N.D. Ala. Apr. 24, 2016); see also Miller v. Barnhart,

(10th Cir. 2006) (upon remand from

Appeals Council, second ALJ not precluded from finding no

significant impairment at step-two where first ALJ found there

was a significant impairment). On the contrary, when an initial

ALJ’s decision is vacated and remanded by the Appeals Council,

as here, the ALJ is typically directed to issue a “a new

decision” after offering the claimant “a new hearing.” See

HALLEX I-2-8-18(A),

(S.S.A. May 26, 2017); Tr.

125. Unless otherwise ordered by the Appeals Council, this

necessarily includes a new RFC finding. Although an ALJ in

receipt of a remand order is required to take whatever action

the Appeals Council orders therein, he is also free to “take any

additional action [that is] not inconsistent with [that] order.”

Gibbs,

(quoting

(b));

“understand, remember, and carry out [one-to-three] step instructions without special supervision”; to “complete a normal [eight] hour work day and a 40 hour work week”; to “interact appropriately with coworkers and supervisors, with occasional contact with the general [public]"; and to respond to change in the work setting. Tr. 26. 14 see

(b). “Indeed, the ALJ is encouraged to

review the record on remand, and check initial findings of fact

and make corrections, if appropriate.” Nolan,

,

at *4 (internal quotes and cites omitted). Thus, as long as his

decision is supported by substantial evidence, an ALJ’s failure

to explain why or how his RFC finding deviates from that of a

since vacated, prior decision does not constitute a viable basis

for reversal. See Hamlin v. Barnhart,

(10th Cir. 2004) (ALJ re-examining a record upon remand may

“certainly” revise a claimant’s RFC category, so long as revised

decision is supported by substantial evidence); see also Howard

v. Berryhill, 17-cv-276,

, *3-4 (D. Colo. Nov.

17, 2017) (noncompliance with Appeals Council’s order alone not

a basis for reversal); Sanders v. Astrue, No. 11-cv-1735,

, *11 (E.D. Mo. Feb. 8, 2013) (accord).

Here, the second ALJ acted within the purview of the

Appeals Council’s remand order. Among other instructions, the

remand order explicitly directed the second ALJ to “[g]ive

further consideration to [Nichols’s] maximum [RFC]” and to

obtain further psychiatric expert evidence “if necessary . . .

to clarify the onset, nature, severity, and limiting effects of

[Nichols’s] mental impairments.” Tr. 124. Thus, the remand

order clearly contemplated a reassessment of Nichols’s RFC by

the second ALJ. It said nothing to preclude the second ALJ from

15 revisiting Nichols’s mental RFC anew without reference to the

first ALJ’s determination. Moreover, and consistent with the

HALLEX, the order explicitly directed the second ALJ to issue a

“new decision” after offering the claimant “a new hearing.” Tr.

125; see HALLEX I-2-8-18(A),

(S.S.A. May 26,

2017). Thus, because the second ALJ’s mental RFC is supported

by substantial evidence, for the reasons that follow, his

failure to “explain why” his own RFC determination differed from

that of the first ALJ does not constitute an error, let alone a

reversible one.

2. Substantial Evidence Supports Second ALJ’s RFC

Next, Nichols claims the ALJ erred because “the record as a

whole” shows that he had “far greater limitations in the mental

demands of work” than the second ALJ’s mental RFC finding

imposed. Doc. No. 8-1 at 6. As discussed, the second ALJ

determined that Nichols was able to perform “light work” and “to

understand, remember, and carry out [one-to-three] step

instructions without special supervision,” to complete a normal

eight hour workday and 40 hour work week, to “interact

appropriately with coworkers and supervisors, with occasional

contact with the general [public],” and to “respond[] to change

in the work setting.” Tr. 26, 66. Nichols argues that this RFC

does not fully account for the limitations imposed by his

depression and PTSD. But other than reiterating his own

16 subjective allegations and citing selected portions of the

medical record, Nichols offers nothing to support that

contention. Because I find that the second ALJ’s RFC finding is

supported by substantial evidence, I reject Nichols’s argument

and find no error.

A claimant’s RFC is “the most [the claimant] can still do

despite [his] limitations.”

(a)(1). It is

the ALJ’s responsibility to formulate a claimant’s RFC at step

four, although typically, that finding must be supported by an

expert opinion “assess[ing] the extent of functional loss.”

Roberts v. Barnhart,

, 622–23 (1st Cir. 2003);

Blackette v. Colvin,

(D. Mass. 2014). As

part of an RFC determination, an ALJ must “identify the

[claimant’s] functional limitations or restrictions and assess

his or her work-related abilities on a function-by-function

basis . . .” Social Sec. Ruling 96–8p,

, at *1

(S.S.A. July 2, 1996); Beaune v. Colvin,

, *2-*4.

That determination must be based on all relevant evidence in the

medical record.

(a)(1); Lord v. Apfel,

(D.N.H. 2000).

For individuals with mental impairments, the function-by-

function assessment must include their “abilities to:

understand, carry out, and remember instructions; use judgment

in making work-related decisions; respond appropriately to

17 supervision, co-workers and work situations; and deal with

changes in a routine work setting.” SSR 96–8p,

,

at *6. The ALJ “must include a narrative discussion describing

how the evidence supports each conclusion, citing specific

medical facts . . . and nonmedical evidence.” Id. at *7.

Furthermore, determining issues of credibility and drawing

inferences from the record are exclusively the role of the ALJ;

thus, an ALJ’s findings will be upheld so long as they are

supported by substantial evidence. See Blakley v. Comm. of

Social Sec.,

(6th Cir. 2009); Irlanda Ortiz,

.

Here, the second ALJ’s mental RFC determination is

supported by substantial evidence. First, the second ALJ

adequately conducted the function-by-function analysis discussed

above. He considered all relevant medical evidence during the

pertinent period and included citations to the record, including

treatment notes from mental-health clinicians and treating

psychologists, mental status examinations, and Nichols’s own

subjective complaints and reported daily activities. See Tr.

26-32. As noted by the second ALJ, Nichols’s treatment notes

over the twelve months in question reflected fluctuations in

mood, symptom severity, and symptom manageability. Tr. 30-32.

Although many of those reports consistently noted depressed and

anxious moods and functionally impactful symptoms, treating

18 sources commonly reported “fair” and “normal” mental status

reports, see Tr. 28, 30-32, 646; normal concentration,

attention, and focus, see, e.g., Tr. 25, 106, 451, 552; and

consistently found that Nichols was fully oriented and possessed

average intelligence. See Tr. 30-32. Moreover, during the 12

month period at issue, the second ALJ found that Nichols’s

records from West Central Behavioral Health (“WCBH”), where he

received the lion’s share of his mental-health treatment,

consistently reported global assessment functioning (“GAF”)

scores of 55-60, which have “historically [been] consistent with

moderate symptomatology.” 6 Tr. 25, 448, 451, 547. The second

ALJ also repeatedly discussed Nichols’s ability to care for his

three young children and “function[] as a stay-at-home father,”

see Tr. 32, as evidenced by the record and Nichols’s own

testimony. Tr. 25, 30-32.

The second ALJ’s RFC determination is also fully supported

by the opinion of the state reviewing psychologist Dr.

6 The GAF Scale is used by doctors to assess an individual's level of psychological, social, and occupational functioning. See American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 32–33 (4th ed., text rev. 2000) (“DSM IV”). GAF scores in the range of 51–60 indicate “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” DSM–IV 32; Snay v. Colvin,

, *1 n.1. Although the persuasive value of these scores is debatable, they are still regularly used and informative. 19 Schneider, which the ALJ gave “great weight” and essentially

adopted verbatim. See Tr. 32, 106. On March 30, 2012, Dr.

Schneider, a non-examining psychological DDS consultant,

provided a mental RFC assessment after reviewing Nichols’s

medical record. Tr. 104-06. He opined that Nichols experienced

moderate limitations in a number of functional areas due to

symptoms of PTSD and depression.

Specifically, he found

that Nichols was moderately limited in his abilities to

understand, remember, and carry out detailed instructions; to

interact with the general public; and “to accept instructions

and respond appropriately to criticism from supervisors.” Tr.

105-06. He also found Nichols moderately limited in some

adaptive abilities, such as “respond[ing] appropriately to

changes in the work setting” and “set[ting] realistic goals or

mak[ing] plans independently of others.” Tr. 106. With all

other abilities, including his abilities to “carry out very

short and simple instructions” and “sustain an ordinary routine

without special supervision” he found Nichols to be “not

significantly limited.” See Tr. 105. Finally, Dr. Schneider’s

mental RFC assessment provided that:

“[Nichols] remains able to understand, remember and carry out short and simple instructions without special supervision. He is able to maintain adequate attention for these kinds of instructions and complete a normal 8 hour work day and 40 hour work week. He is able to interact appropriately with peers and supervisors in an environment where he does not have to interact

20 frequently with the general public and where the supervisory criticism is not overly critical of his performance. Under those circumstances, he is able to accommodate to changes in a work[]setting.

Tr. 106. The second ALJ determined that the record supported

this conclusion, including Nichols’s “reported level of

activity, his lack of presentation of restriction in social

functioning observed by [his treating psychologist], and his

consistent presentation of normal concentration, attention and

focus.” Tr. 25. Thus, such evidence is surely adequate for a

reasonable mind to conclude that Nichols’s retains the ability

“to understand, remember, and carry out [one-to-three] step

instructions without special supervision,” to “complete a normal

[eight] hour workday and 40 hour work week,” to “interact

appropriately with coworkers and supervisors, with occasional

contact with the general [public],” and to “respond[] to change

in the work setting.” Tr. 26. As further discussed in what

follows, Dr. Schneider’s opinion is supported by substantial

evidence.

Although Nichols disagrees with the second ALJ’s assessment

of the medical evidence, he cannot point to any material portion

of the record that the ALJ failed to consider. See Lord,

(“For a reviewing court to be satisfied that an

ALJ’s decision was supported by substantial evidence, that

decision ‘must take into account whatever in the record fairly

21 detracts from its weight.’” (quoting Diaz v. Sec’y of Health &

Hum. Servs.,

(D.N.H. 2000))). Indeed, the

record evidence he now cites as supporting a more restrictive

RFC was all explicitly considered by the second ALJ, but much of

it was attributed limited persuasive value. Specifically,

Nichols cites his own subjective complaints, selective treatment

notes and mental status examinations from February 2012 through

October 2012, and the mental RFC opinion of his treating mental-

health clinician, Melissa Perrino, M.A. Tr. 472-521.

During his function-by-function analysis at step four, the

ALJ thoroughly discussed all of these materials. See, e.g., Tr.

30 (discussing GAF score of 33 and evaluation in July 2011 that

rendered Nichols eligible for state-supported mental health

services). He ultimately concluded, however, that the record as

a whole failed to demonstrate limitations so severe that would

preclude Nichols from performing light work with the provided

functional limitations. See Tr. 27-33. For example, while the

ALJ recognized that status reports from August 2012 indicated a

slight worsening in Nichols’s condition, due in part to turmoil

between he and his wife and “medication mismanagement,” the

second ALJ concluded that nothing showed “that this worsening

persisted [or] would require additional work-related

restrictions.” Tr. 31-32. This was a perfectly reasonable

inference given the lack of objective medical evidence

22 indicating otherwise. See Gregoire v. Colvin,

(lack of objective evidence suggests reliance on “subjective

complaints,” which is grounds for “reject[ing] the opinion of a

treating physician.”).

Moreover, the persuasive value of much of the evidence

Nichols now points to fell victim to the second ALJ’s adverse

credibility assessment of Nichols’s own subjective allegations.

Tr. 27. Indeed, the second ALJ found that Nichols’s own

“statements concerning the intensity, persistence and limiting

effects of [his] symptoms [were] not entirely credible,” due,

inter alia, to his referenced daily activities, lack of candor

regarding his medical and legal histories, and repeated

instances of drug seeking behavior. Tr. 27, 30-32. He further

found that Nichols’s allegations of an “extremely limited range

of functional abilities” were not entirely supported by or

consistent with the objective medical evidence. Tr. 27.

Similarly, the ALJ gave “little weight” to the mental RFC

opinion of Ms. Perrino and Dr. Marsh, as further discussed

below, finding that those opinions were largely based on

Nichols’s own subjective complaints and were generally

inconsistent with the higher level of functioning reflected in

their own treatment notes, as well as those of other attending

psychologists. See Tr. 28. All of these conclusions were well

within the purview of the ALJ’s step-four responsibilities. See

23

(c)(3), 416.929(c)(3). Nichols’s argument

that the record supports a more restrictive RFC, as allegedly

evidenced by the more restrictive mental RFC of the first ALJ,

does nothing to undermine the ALJ’s conclusions. See Blakley,

(“[I]f substantial evidence supports the

ALJ's decision, this Court defers to that finding ‘even if there

is substantial evidence in the record that would have supported

an opposite conclusion.’” (citing Key v. Callahan,

(6th Cir. 1997)); American Textile Mfrs. Institute, Inc. v.

Donovan,

(1981) (“[T]he possibility of drawing

two inconsistent conclusions from the evidence does not prevent

an administrative agency’s finding from being supported by

substantial evidence.” (citing Consolo v. FMC,

(1981)).

B. Weight Given to Opinion Evidence

Nichols next argues that the second ALJ erred by failing to

adequately articulate the weight he attributed to certain

medical opinion statements of record pertaining to his mental

impairments. Doc. No. 8-1 at 10-12. Specifically, he takes

issue with the second ALJ’s treatment of (i) an August 2012

mental RFC opinion signed by Nichols’s mental health clinician,

Ms. Perrino, and his treating psychologist, Dr. Marianne Marsh,

see Tr. 28, 32, 104-106; (ii) the mental RFC opinion of Dr.

Schneider, Doc. No. 8-1 at 10; and (iii) an award of Aid to the

24 Permanently and Totally Disabled (“APTD”) benefits by the state

of New Hampshire, see Tr. 28, 32, 769-91. Because I conclude

that the second ALJ adequately explained the weight he assigned

each respective opinion, I find no reversible error. 7

7 To the extent Nichols advances this second claim of error under the same theory he advanced his first, I find it unpersuasive for the reasons previously discussed. In this context, Nichols argues that the two ALJs reviewed the same opinion evidence herein discussed, but reached divergent conclusions as to the appropriate weight each deserved. Specifically, Nichols notes that whereas the first ALJ gave substantial weight to the opinion of Ms. Perrino and Dr. Marsh and little weight to the opinion of Dr. Schneider, the second ALJ gave great weight to the opinion of Dr. Schneider and little to that of Ms. Perrino and Dr. Marsh and the award of APTD benefits. Because the Appeals Council found that the record substantially supported the first ALJ’s RFC, Nichols argues, the second ALJ’s RFC finding is tainted by reversible error to the extent that he weighed the same opinions differently than the first ALJ. This argument likewise presents a fundamental misunderstanding of the substantial evidence standard. Upon remand, the second ALJ was directed to render a “new decision,” which necessarily required him to independently consider the relevant medical opinions. See HALLEX I-2-8-18(A),

; Tr. 125; see also Nolan,

, at *4 (“Indeed, the ALJ is encouraged to review the record on remand, check initial findings of fact and make corrections, if appropriate.” (internal quotations and citations omitted)). He was in no way bound by the RFC determination of the first ALJ, and was not precluded from attributing different weight to the opinions than the first ALJ, to the extent his conclusions were based on substantial evidence. The substantial evidence standard plainly allows for the same evidence to be construed differently to support varying conclusions. See Blakley,

; American Textile Mfrs. Institute, Inc. v. Donovan,

(“[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”). Thus, the second ALJ’s reweighing of the pertinent medical opinions did not constitute reversible error. 25 1. Opinions of Ms. Perrino and Dr. Marsh

Nichols first claims that the second ALJ committed error by

giving “little weight” to the mental RFC opinions of his

“treating providers,” which consisted of (i) a check-box form

signed by both Ms. Perrino and Dr. Marsh, and (ii) a subsequent

letter from Ms. Perrino. Doc. No. 8-1 at 10.

A “treating source’s” opinion is entitled to “controlling

weight” if that opinion is “well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is

not inconsistent with . . . other substantial evidence.”

(c)(2); see Foley v. Astrue, No. 09-10864,

, *8 (D. Mass. June 17, 2010). Even if a treating

source’s opinion does not satisfy these requirements, it may be

“entitled to deference,” see SSR 96–2p,

, at *4

(S.S.A. July 2, 1996)), “insofar as it is ‘well-supported.’”

Hudon v. Colvin,

(quoting

(c)(2)). To determine how much weight a treating

source’s opinion should receive, the ALJ must consider the

“length of the treatment relationship,” the “nature and extent

of the treatment relationship,” the opinion’s supportability and

consistency with the record as a whole, the treating source’s

area of specialization, if any, and any other relevant factors.

(c), 416.927(c). If the ALJ discounts a

treating source’s opinion, the ALJ must give “good reasons” for

26 doing so. Jenness v. Colvin,

; see SSR 96-2p,

, at *5. “Good reasons” are those “supported by

the evidence in the case record, and . . . sufficiently specific

to make clear . . . the weight [the ALJ] gave to the treating

source’s medical opinion and the reasons for that weight.” SSR

96-2p,

, at *5; Allard v. Colvin,

; see also Jenness,

(“To meet the ‘good

reasons’ requirement, the ALJ’s reasons must be both specific

and supportable.” (internal citations and punctuation omitted)).

Although opinions from so-called “other medical sources,” such

as those that are not acceptable, are not entitled to the same

deference as treating sources, an ALJ should generally explain

the weight given such opinions or otherwise ensure that the

discussion of evidence in the decision makes his reasoning

apparent. See SSR 06-03P,

, at *3, *6; see also

Allard,

.

Melissa Perrino, M.A., was a licensed mental health

clinician with West Central Behavioral Health (WCBH) during the

pertinent period, who had regularly provided mental-health

counseling to Nichols since he began services with WCBH in July

2011 through the date last insured. See Doc. No. 14 at 13-14;

Tr. 767. Dr. Marianne Marsh is a psychiatrist, also with WCBH,

who performed several psychiatric assessments on Nichols and had

been involved with his psychiatric care since July 2011. Doc.

27 No. 14 at 11; Tr. 573, 595. On August 22, 2012, Ms. Perrino and

Dr. Marsh both completed and signed a mental RFC assessment of

Nichols based upon his treatment at WCBH (“August 2012 RFC”).

Tr. 28, 589-94. The opinion consists of a preprinted form that

contains a list of twenty mental activities organized under four

cognitive categories. See Tr. 589-94. Ms. Perrino and Dr.

Marsh rated the degree to which Nichols’s mental impairments

limited his functional abilities with respect to each activity

by circling one of five options under each one, e.g. “markedly

limited,” “moderately limited,” or “not significantly limited.”

They opined that Nichols was “moderately limited” in his

abilities to understand, remember, and carry out detailed

instructions, and “make simple work-related decisions.” Tr.

589-91. They further opined that he was “markedly limited” with

regards to thirteen other activities relating to “sustained

concentration and persistence,” “social interaction,” and

“adaptation,” including his abilities to “sustain an ordinary

routine without special supervision,” to “interact appropriately

with the general public,” and to “respond appropriately to

changes in the work setting.” Tr. 589-92. 8 Moreover, the

8 Under Social Security regulations, “marked limitation” means that the claimant’s “functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 (Listings) § 12.00(F)(2)(d). The August 2012 Mental RFC opinion provided no citation to federal or state law, nor did it provide 28 several “comments” sections throughout form, where Ms. Perrino

and Dr. Marsh were encouraged to leave “[d]etailed

explanation[s] of the degree of limitation for each category,”

were all left blank. See Tr. 589-94. Furthermore, in July

2013, Ms. Perrino provided an update to her opinion, stating

that due to recent improvements, she believed Nichols was only

moderately limited, rather than markedly limited, in his ability

to “perform activities within a schedule,” “maintain

attendance,” and to “be aware of normal hazards and take

appropriate precautions.” Tr. 767. She noted that all other

evaluations appeared up-to-date. Id.

In his mental RFC discussion, the ALJ recited the function-

by-function breakdown contained in the August 2012 RFC, as well

as the two improvements noted in Ms. Perrino’s letter. Tr. 28.

He assigned “little weight” to both opinions, explaining that

“they are not well supported by or consistent with the evidence

of record through the date last insured.” Id. With regards to

the August 2012 RFC, the ALJ found that “[t]he circled items . .

. do not constitute opinion regarding the requisite B criteria.”

Id. He further noted that the treatment notes of Ms. Perrino,

Dr. Marsh, and other treating sources did “not reflect such a

a definition of “marked” as used therein, but there is no reason to conclude that it meaningfully deviated from the above definition.

29 limited level of functioning.” Id. He then went on to discuss

the content of those treatment notes and other mental status

examinations later in his decision. Tr. 30-32. The ALJ further

found the opinions expressed in Ms. Perrino’s 2013 letter to be

unpersuasive, noting that she “is not an acceptable medical

source,” “[h]er treatment notes reflect a higher level of

functioning than set out in her opinion statements,” and her

opinion was inconsistent with other objective medical evidence.

Tr. 28, 32.

The ALJ’s decision attributing “little weight” to the

August 2012 RFC was both “supported by the evidence in the case

record” and “sufficiently specific.” See SSR 96-2p,

, at *5. The ALJ supportably described the August 2012

RFC and July 2013 letter and provided sufficiently specific

reasons for discounting them, specifically his conclusions that

they were internally inconsistent and in conflict with the other

medical evidence, as well as with the opinion of Dr. Schneider. 9

See Camille v. Colvin,

(2d Cir. 2016).

9 The ALJ’s conclusion that Ms. Perrino was not an “acceptable medical source” is correct, as she is a licensed mental-health clinician. See

(a) (“clinician” not included among “acceptable medical sources”); SSR 06-03P,

, at *2 (“licensed clinical social workers” and “therapists” are not “acceptable medical sources”); see also Mainwaring v. Berryhill, No. 16-cv-82,

, at *5 (D. Or. Mar. 7, 2017) (mental-health clinician “not acceptable” medical source). Thus, the ALJ was not required to provide “good reasons” for discounting her July 2013 letter opinion. 30 First, although it would have been preferable for the ALJ

to explain his reasoning with greater clarity, his explanation

that “[t]he circled items . . . do not constitute opinion

regarding the requisite B criteria” is reasonably construed as a

reference to the lack of detail contained in the “multiple

choice style” form. Tr. 28. In assigning weight to an opinion,

an ALJ may permissibly consider an opinion’s depth of analysis

and supporting evidentiary sources, or lack thereof. See

(c), 416.927(c) (“The more a medical source

presents relevant evidence to support a medical opinion,

particularly medical signs and laboratory findings . . . [and]

[t]he better an explanation a source provides for a medical

opinion, the more weight we will give that medical opinion.”);

Douglas v. U.S. Social Sec. Admin.,

. Thus,

courts have routinely found that an ALJ may permissibly reject

The August 2012 RFC, however, as noted by the second ALJ, was cosigned by Dr. Marsh, who also treated Nichols and worked with Ms. Perrino at WCBH. Thus, that opinion is subject to the “treating physician” rule and could only have been discounted if supported by “good reasons.” See King v. Colvin,

, 436 n.14 (D. Mass. 2015) (“Where a treating acceptable medical source co-signs a non-acceptable medical treating source's opinion, the resulting opinion constitutes that of both sources.”). Ms. Perrino’s letter, by contrast, is an opinion solely from a non-acceptable medical source, and the second ALJ therefore need have only “generally . . . explain[ed]” the weight attributed to it and made his reasoning apparent. See SSR 06-03P,

, at *3, *6; see also Allard,

. For the reasons discussed, I conclude that the second ALJ adequately explained the weight given to both the August 2012 RFC and the July 2013 letter. 31 an opinion where it only consists of a “check-off report” or

“word-circle” questionnaire without providing any narrative

explanation or citation to substantiate its conclusions. See

Wringer v. Colvin, No. CV-15-02554,

, at *3 (D.

Ariz. July 28, 2016); Petero v. Colvin, No. 16-cv-11389,

, at *7 (E.D. Mich. Aug. 14, 2017); see also Revels v.

Berryhill,

(9th Cir. 2017) (“[W]hen evaluating

conflicting medical opinions, an ALJ need not accept the opinion

of a doctor if that opinion is brief, conclusory, and

inadequately supported by clinical findings.” (citing Bayliss v.

Barnhart,

(9th Cir. 2005))); Mason v.

Shalala,

(3d Cir. 1993) (“Form reports in

which a physician's obligation is only to check a box or fill in

a blank are weak evidence at best . . . where these so-called

reports are unaccompanied by thorough written reports, their

reliability is suspect.” (internal citations omitted)).

Although the August 2012 RFC form invited Ms. Perrino and Dr.

Marsh to provide more “detailed explanation[s] of the degree of

limitation for each category” assessed, they declined to provide

any such explanation to support their conclusions. Tr. 589-94.

Instead, the “multiple-choice style” report merely indicates

that the opinions expressed were based on “diagnosis and

treatment” of Nichols, and review of his records from July 12,

2011 to August 22, 2012. Tr. 594. Without any meaningful

32 analysis or citation to objective medical evidence to support

the “marked limitations” expressed therein, the ALJ was well-

warranted in attributing “little weight” to the opinion. See

Petero,

, at *7; Douglas,

(“[A]n

ALJ may permissibly conclude that an opinion lacking functional

analysis is of limited utility in determining a claimant’s

RFC.”).

Second, the ALJ’s explanation that the August 2012 RFC was

not well supported by or consistent with the record as a whole

is also a “good reason” to reject it, as he adequately supported

that conclusion. Douglas,

; see

(c)(4) & 416.927(c)(4) (“Generally, the more consistent

an opinion is with the record as a whole, the more weight we

will give [it].”). As the ALJ explained, an overview of

Nichols’s objective clinical presentation “[did] not describe

[him] as limited in functioning as [he was] described in the

[August 2012 RFC].” Tr. 32. Indeed, psychologists from both

WCBH and Dartmouth-Hitchcock Medical Center (“DHMC”), where

Nichols received suboxone treatment for his opioid addiction

beginning in May 2012, repeatedly reported findings more

consistent with the moderate limitations reflected in Dr.

Schneider’s RFC. See Tr. 30-32; King,

(D. Mass. 2015) (“If the treating-source opinion conflicts with

other opinions in the record, however, the ALJ is entitled to

33 resolve those conflicts and may reject the opinion of the

treating physician so long as an explanation is provided and the

contrary finding is supported by substantial evidence.”

(internal citations and quotations omitted)). For example, in

their mental status examinations, attending psychologists

regularly reported Nichols’s good, normal, or only “moderately

impaired judgment,” see Tr. 30, 449, 548, 551-52, 575, 646; his

“cooperative” or “pleasant” attitude, see Tr. 30, 548, 575,

650, 691; his “linear,” “appropriate,” or “logical” thought

process, see Tr. 31, 552, 570, 575; and that he was managing his

symptoms appropriately. See Doc. No. 14 at 16, 19, 20, 27; Tr.

545, 547-48, 575, 719-20; see also Doc. No. 14 at 23 (doctor

reporting on August 30, 2012, that Nichols’s “mood, affect,

behavior, judgment, and thought content were all normal.”).

Moreover, as the second ALJ noted, the record indicated

that, notwithstanding his mental impairments, Nichols was able

to care for his young children during the day, cook and clean on

occasion, do laundry, and attend his medical appointments. Tr.

25, 30, 306; Doc. No. 14 at 2. Thus, the ALJ’s conclusion that

the “marked” limitations in basic areas of functioning found by

Ms. Perrino and Dr. Marsh were inconsistent with the record as a

whole is supported by substantial evidence. See King,

. His overview of the objective medical

evidence and appropriate citation to the record is sufficiently

34 specific to constitute a “good reason” for attributing “little

weight” to the August 2012 RFC. See Walter v. Colvin,

, *8-*9 (finding no error where ALJ discounted treating

physician’s opinion because of, inter alia, inconsistency

between the opinion and “medical records show[ing] cooperative

behavior with good grooming and pleasant behavior.”); Hammock v.

Colvin, No. 3-14-0853,

, *10 (M.D. Tenn. July 22,

2015) (ALJ sufficiently articulated inconsistencies between

medical opinion and record as a whole).

Third, the ALJ’s finding that the August 2012 RFC was also

inconsistent with the treatment notes of Ms. Perrino and Dr.

Marsh also qualifies as a “good reason” supported by substantial

evidence. See Davidson v. Astrue,

(8th

Cir. 2007) (discounting treating physician’s opinion where

treatment notes over the course of two years contained few hints

at the serious physical limitations contained in opinion

supporting disability claim); Douglas,

.

Nichols presented to Ms. Perrino at least fourteen times during

the pertinent period for mental-health counseling, see Doc. No.

14 at 14-25, and the ALJ discussed some of Ms. Perrino’s

treatment notes in his decision, which illustrated the alleged

inconsistencies between those notes and the August 2012 and July

2013 opinions. See Tr. 30-32. For example, although Ms.

Perrino opined in the August 2012 RFC that Nichols was “markedly

35 limited” in areas such as “ask[ing] simple questions or

request[ing] assistance,” and “accept[ing] instructions and

respond[ing] appropriately to criticism,” see Tr. 589-94,

treatment notes reveal that in March 2012 she encouraged Nichols

to “develop his thoughts and feeling[s] about pursuing his goal

of going back to school.” Tr. 532. She further noted that

Nichols was “conflicted with want[ing] to get his SSI

[benefits], yet also wanting some educational structure in his

day.” Tr. 532. Moreover, the second ALJ’s conclusion that Ms.

Perrino’s treatment notes reflected a “higher level of

functioning” than that expressed in her opinions is supported by

substantial evidence, as her notes do not make reference to

functional limitations as extreme as those contained in the

August 2012 RFC. Furthermore, as noted by the second ALJ, Dr.

Marsh’s treatment notes contain similar inconsistencies. For

example, in her August 2012 assessment of Nichols, Dr. Marsh

noted that he had not demonstrated any antisocial traits during

the past two years in treatment and that it did “not appear to

be an active issue.” Tr. 575; see Tr. 31. Despite that

finding, the August 2012 RFC finds Nichols as markedly limited

in “interacting appropriately with the public.” Tr. 591.

Finally, the second ALJ’s conclusions calling Nichols’s

credibility into doubt further undermine the opinions of Ms.

Perrino and Dr. Marsh. As discussed, the second ALJ found that

36 Nichols’s own “statements concerning the intensity, persistence

and limiting effects of [his] symptoms [were] not entirely

credible,” Tr. 27, due, inter alia, to his referenced daily

activities, lack of candor regarding his medical and legal

histories, and repeated instances of drug seeking behavior. Tr.

30-32. Such evidence can provide “good reasons” for rejecting a

treating physician’s opinion. See Douglas,

(“An adequately supported claim of exaggeration can constitute

or complement a ‘good reason’ for rejecting a treating source's

opinion.”).

2. Dr. Schneider’s Opinion

Relatedly, Nichols challenges the second ALJ’s decision to

give “great weight” to the opinion of the state consultative

psychologist, Dr. Scheider, whose opinion was previously

discussed. He argues that “the weighing of [a] non-treating

consultant’s [opinion] must meet stricter standards than that of

treating physicians.” Doc. No. 8-1 at 11. Although that

statement is generally accurate, see SSR 96-2p,

,

at *2 (S.S.A. July 2, 1996), nothing precludes an ALJ from

giving greater weight to the opinion of a non-treating physician

than that of a treating source where the former is supported by

substantial evidence. See Tetreault v. Astrue,

(D. Mass. 2012); Diaz v. Shalala,

, 313 n.5

(2d Cir. 1995) (“[T]he regulations . . . permit the opinions of

37 nonexamining sources to override treating sources’ opinions

provided they are supported by evidence in the record.”).

Here, the second ALJ did not err in attributing “great

weight to Dr. Schneider’s opinion after concluding that opinion

was most consistent with the medical record as a whole. Dr.

Schneider’s opinion that Nichols’s moderate impairments in,

inter alia, his ability to understand, remember, and carry out

detailed instructions and to interact with the general public

left him with the functional capacity to perform light work as

limited in the second ALJ’s mental RFC was supported by

substantial evidence. See Tr. 25, 32 (referencing Tr. 105-06.).

Specifically, it is supported by the treatment notes and mental

status assessments of WCBH and DHMC treating sources, evidence

of Nichols’s daily activities, and the second ALJ’s credibility

assessment of Nichols, as previously discussed. See Camille,

. Furthermore, as noted by the second ALJ,

Dr. Schneider is a specialist and state consultant and “expert[]

in the evaluation of the medical issues in disability claims

under the [Social Security] Act,” see SSR 96-6p,

,

at *2, and his “check-box opinions were supplemented by [a]

narrative explanation.” Camille,

(citing

(c)(3)-(6)).

Thus, for the reasons discussed, I find the ALJ’s decisions

to give “little weight” to the opinions of Ms. Perrino and Dr.

38 Marsh and “great weight” to Dr. Schneider’s opinion were

“supported by evidence in the case record” and “sufficiently

specific” to constitute “good reasons.” SSR 96-2p,

, at *5.

3. The APTD Eligibility Determination

Next, Nichols challenges the second ALJ’s articulation of

his decision to give Nichols’s prior “receipt of APTD benefits”

little weight. Tr. 28; Doc. No. 8-1 at 10-12. Because I find

the second ALJ’s explanation of that decision to be adequate for

many of the reasons already discussed, I find no error.

Although relevant disability determinations by other

agencies “must be considered” by the ALJ, they are not binding.

SSR 06-03P,

, at *6-7; see Alvarez v. Sec’y of

Health & Human Servs.,

(Table),

, at

*1 n.1 (1st Cir. 1995). “The amount of weight to be attached to

another government agency’s disability determination is left to

the [ALJ] to determine.” Gathright v.Shalala,

(D. N.M. 1993). Such determinations should be weighed under

the same factors and federal regulations previously discussed,

see SSR 06-03P,

, at *6-7 (citing

, 416.927), considering “all of the supporting evidence

underlying the [other agencies] decision” that is part of the

record before the ALJ.

.

39 On February 1, 2013, the New Hampshire Administrative

Appeals Unit (“NHAAU”) determined that Nichols was “medically

eligible to receive benefits” under the state’s APTD program.

Doc. No. 14 at 29-30 (citing Tr. 783). The NHAAU’s decision was

based on its conclusion that, under applicable New Hampshire

law, Nichols’s “moderate impairments in activities of daily

living, social functioning and concentration, persistence or

pace [were] expected to prevent [substantial gainful activity]

for 48 months.” Tr. 783. In support of that conclusion, the

NHAAU had elicited testimony from a vocational consultant. Tr.

782. The consultant had opined that given the mental RFC

assigned to Nichols by the NHAAU, which included moderate

interactions with the general public, “there would not be

sufficient jobs available for [Nichols] to perform at the

sedentary level.” Tr. 782. The NHAUU therefore determined that

a finding of “disabled” was warranted. Tr. 782.

The second ALJ appropriately considered the NHAAU’s APTD

evaluation, but ultimately concluded that the decision was

entitled to “little weight,” based predominantly on two reasons.

Tr. 28. First, he found that the decision largely relied upon

the opinions of Ms. Perrino and Dr. Marsh.

He reasoned

that because he found those opinions unpersuasive, for the

reasons previously discussed, he similarly found that the APTD

evaluation should be entitled to the same limited weight

40 assigned to those opinions.

Second, he found that the

“supporting records before the state decision maker(s) [were]

not the complete record before [him].”

Specifically, he

referenced the testimony of a vocational consultant that

appeared before the NHAAU, who had opined that given the

Nichols’s RFC as determined in that case, “there would be no

jobs for someone with only moderate limitation in dealing with

the general public.”

He noted that that opinion was not

part of the record before him and was not consistent with the

testimony of the vocational expert that testified before the

second ALJ. See

Finally, he noted that under federal

regulations, a “moderate” mental impairment is defined as “more

than [a] slight impairment but still able to function

satisfactorily.”

He concluded that a moderate limitation

in “dealing with the public, does not affect more than

marginally the ability to perform unskilled work or simple

routine work.” Tr. 29.

The record supports those conclusions. Because I find that

the second ALJ adequately explained the different standards and

processes involved with the award of disabilities by different

agencies, and sufficiently explained his rationale in assigning

“little weight” to the NHAAU’s APTD evaluation, I conclude that

his decision is supported by substantial evidence.

41 C. VE Hypothetical & Materiality of Substance Abuse

Nichols’s third argument is that the second ALJ erred in

relying upon the vocational expert’s testimony (“VE”) at step

five because it was based on a “defective hypothetical” that did

not adequately account for Nichols’s mental impairments. Doc.

No. 8-1 at 12. He also appears to argue that the second ALJ

ignored the portion of the VE’s testimony that considered the

“marked limitations” identified by Ms. Perrino and Dr. Marsh. I

reject both arguments.

An ALJ can rely on the opinion of a VE to determine whether

a claimant is disabled only if the VE’s opinion is based on a

hypothetical question that “accurately portray[s] [the]

claimant’s physical and mental impairments.” Ealy v. Comm’r of

Social Sec.,

(6th Cir. 2010); see Rose v.

Shalala,

(1st Cir. 1994); Arocho v. Sec’y of

Health & Human Servs.,

(1st Cir. 1982) (“[I]n

order for a vocational expert’s answer to a hypothetical

question to be relevant, the inputs into that hypothetical must

correspond to the conclusions that are supported by the outputs

from the medical authorities.”). Thus, if the premises

underlying the hypothetical are supported by substantial

evidence, so too is the ALJ’s reliance on the VE’s answer. See

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

(Table),

42

, at *2 (1st Cir. 1995); Perez v. Sec’y of Health &

Human Servs.,

(1st Cir. 1991).

Here, the second ALJ posed two hypotheticals to the VE.

Both inquired into the availability of any jobs for a

hypothetical person with the same age, education, work history,

and physical RFC as Nichols. Tr. 64-66. They only differed

with respect to the non-exertional limitations contemplated in

the two hypothetical persons’ mental RFCs. The first

hypothetical person possessed the same mental RFC as that found

by the second ALJ at step four, 10 whereas the second hypothetical

“add[ed]” all of the “marked limitations” found with respect to

the specific activities identified by Ms. Perrino and Dr. Marsh

in the August 2012 RFC. Tr. 64-66. In response to the first

hypothetical, the VE opined that such a person could perform a

number of light-exertional jobs available in both the local and

national economies, such as product assembler, merchandise

marker, and housekeeper. Tr. 66. In response to the second

hypothetical, the VE opined that the added marked limitations,

10The first hypothetical reflected the second ALJ’s mental RFC verbatim. Specifically, the second ALJ described a person with: “the ability to understand remember, and carry out one-to-three step instructions without special supervision . . . [who] could maintain an adequate attention for these instructions, and complete a normal eight hour workday, and 40 hour [work] week . . . [who] can interact appropriately with co-workers and supervisors, but is limited to only occasional contact with the general public, [a]nd . . . can accommodate changes in the work setting under these circumstances.” Tr. 66. 43 in combination, “would [make it] difficult to maintain

competitive employment, particularly the completing [of] a

normal workday on a continuous basis.” Tr. 67.

At step-five, the second ALJ relied upon the VE’s response

to the first hypothetical question, and did not discuss the VE’s

response to the second. Tr. 34. The second ALJ’s first

hypothetical was a verbatim recital of his mental RFC

determination at step four. Tr. 66. Because I find that RFC

determination supported by substantial evidence, for the reasons

previously discussed, the second ALJ’s reliance on the VE’s

answer to the first hypothetical was appropriate. See Perez,

; Rodriguez v. Sec’y of Health & Human Servs.,

(Table),

(1st Cir. 1990)

(reliance on VE’s response to one hypothetical in lieu of

response to a second more limiting hypothetical was supported by

substantial evidence where record permitted ALJ to conclude the

allegations underlying the second hypothetical were not

credible). Furthermore, because the second ALJ rejected the

medical evidence supporting the second hypothetical, he was not

required to discuss the VE’s response in his opinion. See

Schmidt v. Astrue,

(7th Cir. 2007) (“[T]he

ALJ is required only to incorporate into his hypotheticals those

impairments and limitations that he accepts as credible.”);

Chrisman v. Astrue,

(N.D. Ill. 2007)

44 (VE testimony only relevant if ALJ concludes claimant has the

limitations considered by the VE). Thus, because the second

ALJ’s conclusions at step five are supported by substantial

evidence, I find no error.

D. Materiality of Substance Abuse

Finally, Nichols claims reversible error in the second

ALJ’s failure to comply with the Appeals Council’s order with

respect to determining whether Nichols’s substance abuse was a

contributing factor material to the determination of disability.

Doc. No. 8-1 at 13. This argument is a nonstarter. First,

substantial evidence supports the second ALJ’s decision that

Nichols was not disabled for the reasons discussed, so any

failure to comply with the Appeals Council’s order would be

harmless. See, e.g., Salcedo v. Colvin, No. EDCV 14-1668,

, at *5 (N.D. Cal. 2015); Quimby v. Comm’r of Social

Sec., No. 09-cv-20,

, at *8 (D. Vt. Apr. 13,

2010); see also Torres Montero v. Sec’y of Health & Human

Servs.,

(Table) (1st Cir. 1992) (per curiam)

(“[C]laimant’s complaints about the ALJ’s alleged failure to

comply with the Appeals Council’s remand order are particularly

unpersuasive in light of the fact that the Appeals Council

denied the claimant’s request for review of the new decision.”).

Second, the second ALJ complied with the order. By the

terms of the order itself, any obligation to conduct such

45 analysis was predicated upon a determination of disability. Tr.

125 (“If the claimant is found disabled, conduct the further

proceedings required to determine whether substance abuse is a

contributing factor[] . . .”). Therefore, the second ALJ’s

determination that Nichols was “not disabled” obviated the need

to conduct the substance abuse analysis.

V. CONCLUSION

For the reasons set forth above, I grant the Acting

Commissioner’s motion to affirm (Doc. No. 11), and I deny

Nichols’s motion to reverse and remand (Doc. No. 8). The clerk

is directed to enter judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro ____ Paul Barbadoro United States District Judge

March 13, 2018

cc: Bennett B. Mortell, Esq. Robert J. Rabuck, Esq.

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