UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Victoria Bean

v. Civil No. 17-cv-625-LM Opinion No.

Nancy A. Berryhill, Acting Commissioner of Social Security

O R D E R

Victoria Bean seeks judicial review of the decision of the

Acting Commissioner of the Social Security Administration,

denying her application for disability insurance benefits. Bean

moves to reverse the Acting Commissioner’s decision, and the

Acting Commissioner moves to affirm. For the reasons discussed

below, the court grants the Acting Commissioner’s motion to

affirm and denies Bean’s motion to reverse.

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 [Administrative Law Judge] 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 she 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 her limitations caused by impairments,

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

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

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

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

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

2 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).

BACKGROUND

A detailed statement of the facts can be found in the

parties’ Joint Statement of Material Facts (doc. no. 11). The

court provides a brief summary of the case here.

On October 8, 2014, Bean filed an application for

disability insurance benefits. She alleged a disability onset

date of January 1, 2012, when she was 39 years old. She

subsequently amended her onset date to January 10, 2013.

After Bean’s claim was denied, she requested a hearing in

front of an ALJ. On June 8, 2016, the ALJ held a hearing,

during which Bean testified and was represented by an attorney.

On September 7, 2016, the ALJ issued an unfavorable

decision. He found that Bean had the following severe

impairments: degenerative disc disease, status post right

shoulder subacromial decompression and biceps tenotomy, left

shoulder degenerative disc disease, and obstructive sleep apnea.

The ALJ found that Bean’s diabetes mellitus and her anxiety

disorder and depression were not severe. He further found that

Bean had the residual functional capacity to perform light work

as defined in

(b) with certain limitations.

3 In assessing Bean’s residual functional capacity, the ALJ

gave great weight to the opinion of Dr. Louis Rosenthall, the

state agency physician. The ALJ ultimately adopted a more

restrictive RFC assessment than was contained in Dr.

Rosenthall’s opinion.

Christine E. Spaulding, an impartial vocational expert,

testified at the hearing. In response to hypotheticals posed by

the ALJ, Spaulding testified that a person with Bean’s RFC could

perform jobs that exist in significant numbers in the national

economy. Based on Spaulding’s testimony, the ALJ found at Step

Five that Bean was not disabled.

Bean requested review of the ALJ’s decision by the Appeals

Council. With her request, she submitted additional evidence

that was not before the ALJ, including a determination from the

State of New Hampshire that she was eligible for Medicaid

benefits because of her disability.

On September 21, 2017, the Appeals Council denied Bean’s

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

Commissioner’s final decision. This action followed.

DISCUSSION

Bean contends that the ALJ erred in weighing the medical

opinions in the record and in evaluating her subjective

complaints and symptoms. She also argues that the Appeals

4 Council erred in concluding that the additional evidence she

submitted with her request for review did not change the outcome

of the ALJ’s decision.

I. Medical Opinions

Bean contends that the ALJ erred in weighing the medical

opinions in the record. Specifically, she argues that the ALJ

erroneously gave little weight to the opinion of her treating

physician, Dr. John Wheeler, while giving great weight to the

opinion of Dr. Rosenthall.

“An ALJ is required to consider opinions along with all

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

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

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

opinions of state agency consultants, treating sources, and

examining sources under the same rubric. See id.;

(c). The ALJ must consider “the examining relationship,

treatment relationship (including length of the treatment

relationship, frequency of examination, and nature and extent of

the treatment relationship), supportability of the opinion by

evidence in the record, consistency with the medical opinions of

other physicians,” along with the doctor’s expertise in the area

and any other relevant factors. Johnson v. Berryhill, No. 16-

cv-375-PB,

, at *5 (D.N.H. Oct. 12, 2017).

5 1. Dr. Rosenthall

As discussed supra, the ALJ gave great weight to the opinion

of Dr. Rosenthall, a state agency physician who did not examine

Bean. The ALJ largely adopted Dr. Rosenthall’s opinion as to

Bean’s limitations and included them in his RFC assessment. The

ALJ found that Bean has certain limitations that were greater

than were found by Dr. Rosenthall, however, including

limitations with lifting, sitting, and crawling.

In evaluating Dr. Rosenthall’s opinion, the ALJ was mindful

of the factors set forth in

(c) and SSR 96-

6p, see

, at *2 (July 2, 1996).1 The ALJ concluded

that Dr. Rosenthall’s opinion was entitled to great weight

because it was completed by an acceptable medical source who

provided a rationale for the opinion, and cited supporting

evidence.

Although Bean criticizes the ALJ for giving great weight to

Dr. Rosenthall’s opinion while giving little weight to Dr.

Wheeler’s opinion, she does not explain why the weight the ALJ

gave to Dr. Rosenthall’s opinion was erroneous. While Bean

mentions the weight the ALJ gave to Dr. Rosenthall’s opinion,

she merely repeats the ALJ’s reasons for her decision. See doc.

1 SSR 96-6p was in effect when the ALJ issued his decision. It has since been superseded by SSR 17-2p.

6 no. 6-1 at 3-4. To the extent Bean intended to challenge the

weight the ALJ gave to Dr. Rosenthall’s opinion, that argument

is not sufficiently developed to be addressed. See United

States v. Zannino,

(1st Cir. 1990) (“It is not

enough merely to mention a possible argument in the most

skeletal way, leaving the court to do counsel’s work . . . .”).

2. Dr. Wheeler

A treating medical source’s opinion about the claimant’s

impairment will be given controlling weight if it “is well-

supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other

substantial evidence in [the] case record.” § 404.1527(c)(2).

An ALJ must give “good reasons” for the weight given to a

treating source’s medical opinion. Id. “Those reasons must

offer a rationale that could be accepted by a reasonable mind.”

Dimambro v. US Soc. Sec. Admin., Acting Comm’r, No. 16-cv-486-

PB,

, at *10 (D.N.H. Jan. 5, 2018). If the ALJ

satisfies that standard, the court will uphold the decision to

discount a treating source’s opinion.

Bean argues that the ALJ erred in failing to address all

the relevant factors in § 404.1527(c) and by failing to give

good reasons for affording Dr. Wheeler’s opinion little weight.

The court disagrees. The ALJ found that there was no medical

7 evidence in the record to support Dr. Wheeler’s extensive

limitations, including a lack of support in Dr. Wheeler’s own

treatment notes. He also found that Dr. Wheeler’s opinion as to

Bean’s functional limitations was inconsistent with Bean’s

activities of daily living, as well as her behavior at the

hearing. In addition, the ALJ noted that Dr. Wheeler had not

done a functional status exam on Bean.

Here, the ALJ gave “good reasons” which could be accepted

by a reasonable mind for the weight given to Dr. Wheeler’s

opinion. See Dimambro,

, at *11-12 (finding that

the ALJ gave good reasons to discount treating source’s opinions

when the opinions were inconsistent with treatment notes and

other medical opinion evidence in the record). Where an ALJ

provides good reasons for giving little weight to a treating

source’s opinion, he is not required to expressly address each

of the factors set forth in § 404.1527(c). Chapin v. Astrue,

No. 11-cv-286-JL,

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

2012). “While the record arguably could support a different

conclusion, there is clearly substantial evidence to support the

ALJ’s findings.” Applebee v. Berryhill, No. 18-1510,

, at *1 (1st Cir. Nov. 30, 2018) (per curiam). For these

reasons, the ALJ did not err in evaluating the medical opinion

evidence in the record.

8 II. Subjective Complaints

Bean contends that the ALJ erred in his evaluation of her

subjective complaints by failing to follow the directives in

Social Security Ruling (“SSR”) 16-3p.

SSR 16-3p provides guidance to ALJs when they assess

claimants’ “symptoms, including pain, under

(c)(3), 416.929(c)(3).” Coskery v. Berryhill,

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

whether an applicant has a residual functional capacity that

precludes a finding of disability must evaluate the intensity

and persistence of an individual’s symptoms such as pain and

determine the extent to which an individual’s symptoms limit his

or her ability to perform work-related activities.”

(internal quotation marks omitted).

Moreover, SSR 16–3p provides that, in conducting that inquiry, the ALJ must examine the entire case record, including the objective medical evidence; an individual’s statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual’s case record.

(internal quotation marks omitted).

In evaluating Bean’s subjective complaints, the ALJ

discussed Bean’s testimony concerning the effects of her back

and shoulder issues, sleep apnea, diabetes, anxiety, and

depression. The ALJ addressed the evidence in the record that

9 he found did not fully support Bean’s subjective complaints.

Specifically, the ALJ noted Bean’s daily activities, her

statements in treatment notes concerning the positive effects of

pain medication, and medical evidence in the record showing

improvement in Bean’s symptoms. The ALJ concluded that Bean’s

testimony regarding the intensity, persistence, and limiting

effects of her symptoms were not credible to the extent that

they were inconsistent with the RFC assessment.

Bean raises two arguments to challenge the ALJ’s evaluation

of her subjective complaints about her symptoms. First, Bean

argues that the ALJ contravened SSR 16-3p’s instruction that an

ALJ “not disregard an individual’s statements about the

intensity, persistence, and limiting effects of symptoms solely

because the objective medical evidence does not substantiate the

degree of impairment-related symptoms alleged by the

individual.” SSR 16-3p, 82 Fed. Reg. at 49465. The ALJ,

however, did not violate that rule. While the ALJ did rely on

the objective medical evidence in rejecting Bean’s allegations,

as discussed above, the ALJ also noted other factors, including

Bean’s daily activities, her response to pain medications, and

her statements to medical providers concerning her symptoms.

Therefore, Bean’s first argument is unpersuasive.

Second, Bean points to the following statement in the ALJ’s

decision:

10 Of note, there is a gap in treatment at Derry Medical Center, from October 2015 through February 2016, when the claimant presented for labs as part of a routine medical exam. Although the claimant testified that she has spent most days [in] bed for the last six months, it is reasonable to conclude that she would seek treatment if her symptoms were severe.

Admin. Rec. at 19-20. Bean contends that this finding

contravenes SSR 16-3p’s directive that an ALJ may not find a

claimant’s symptoms inconsistent with her failure to seek

treatment “without considering possible reasons he or she may

not comply with treatment or seek treatment consistent with the

degree of his or her complaints,” including that an individual

with a mental health impairment “may not understand the

appropriate treatment for or the need for consistent treatment

of his or her impairment.” SSR 16-3p, 82 Fed. Reg. at 49462-03.

Bean notes that she testified that she had spent most of those

six months in bed because of her mental health impairments and,

therefore, the ALJ should not have found her gap in treatment to

be significant.

The ALJ’s statement concerning the gap in Bean’s treatment

does not run afoul of SSR 16-3p. Bean did not testify that she

was unaware or misunderstood the need to treat her shoulder and

arm pain during the relevant period. The ALJ specifically

considered the possible reason that Bean did not seek treatment

over the six-month period in considering the significance of the

gap. Thus, he complied with SSR 16-3p.

11 For these reasons, Bean’s arguments concerning the ALJ’s

evaluation of her subjective complaints do not require reversal.

III. Appeals Council

Bean challenges the Appeals Council’s decision to deny

review of the ALJ’s decision. She contends that the additional

evidence she submitted on appeal corroborates her claim for

disability and requires reversal.

“[A]n Appeals Council’s refusal to review the ALJ may be

reviewable where [the Council] gives an egregiously mistaken

ground for this action.” Mills v. Apfel,

(1st

Cir. 2001). “This standard for review has been described as

exceedingly narrow.” Raposo v. Berryhill, No. 17-CV-10308-ADB,

, at *10 (D. Mass. Mar. 28, 2018) (citing cases)

(internal quotation marks omitted). Grounds may be egregiously

mistaken if the Appeals Council denied review while concluding

that the new evidence was not material to the disability

determination, when the new evidence was material and required a

different outcome. Mills, 244 F.3d at 5–6.

Bean notes that she submitted to the Appeals Council a

determination from the New Hampshire Department of Health and

Human Services (“DHHS”) that she was disabled for purposes of

her application for Medicaid benefits in 2013. She notes that

this determination was based in part on the opinions of Drs.

12 William Windler and Peter Bradley, which corroborated Dr.

Wheeler’s opinion and showed that Bean had a more restrictive

RFC than the ALJ found. The Appeals Council nevertheless denied

review of the ALJ’s decision.

Bean has not shown that the “new” evidence she submitted to

the Appeals Council required a different outcome. The DHHS’s

letter, which determined that Bean was disabled for purposes of

Medicaid benefits as of 2013, is not binding on the Social

Security Administration.

; see also SSR 06-

3p,

, *6 (same); Alvarez v. Sec’y of Health &

Human Servs., No. 95-1028,

, at *1 n.1 (1st Cir.

Aug. 2, 1995). In addition, although certain medical opinions

Bean submitted suggest a more restrictive RFC than the ALJ

determined, much of the “new” medical opinion evidence that she

submitted supports the ALJ’s findings. See Admin. Rec. at 36

(noting mild restriction of activities of daily living); 44

(discussing Bean’s occasional shoulder pain with a good

prognosis for her pain); 49 (stating that Bean “is able to

attend all her activities of daily living” and “able to tolerate

stresses in the work setting and able to maintain a schedule”).

As discussed above, substantial evidence in the record

supports the ALJ’s decision. Although some of the new evidence

Bean submitted to the Appeals Council supports her position,

that evidence does not require a different outcome. Therefore,

13 the Appeals Council’s decision was not egregiously mistaken.

See Roberson v. Colvin, No. 13-CV-265-JD,

, at *4

(D.N.H. Jan. 22, 2014) (“While Dr. Rockhill’s evaluation

supports Roberson’s view of her limitations, other evidence in

the record supports the ALJ's findings. Under these

circumstances, Roberson has not shown that the Appeals Council’s

decision that the new evidence did not show a reasonable

probability of changing the ALJ’s findings was egregiously

mistaken.”); see Scully v. Berryhill, No. 16-CV-525-SM,

, at *4 (D.N.H. Jan. 3, 2018) (holding that the Appeals

Council was not egregiously mistaken in denying review despite

the claimant’s submission of new evidence because “the record

evidence provides considerable support for the Appeals Council’s

determination”); Robbins v. Astrue, No. 09-CV-343-JD,

, at *4 (D.N.H. Aug. 9, 2010) (holding that although the

new evidence supported the claimant’s position, the Appeals

Council’s decision to deny review was not egregious “in the

context of all of the evidence”).

For these reasons, the court denies Bean’s motion to

reverse and grants the Acting Commissioner’s motion to affirm.

CONCLUSION

For the foregoing reasons, the plaintiff’s motion to

reverse (doc. no. 6) is denied, and the Acting Commissioner’s

14 motion to affirm (doc. no. 10) is granted. The clerk of the

court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

January 22, 2019

cc: Counsel of Record

15