UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jodie Marie Nickerson

v. Case No. 18-cv-559-PB Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Jodie Marie Nickerson challenges the Social Security

Administration’s denial of her claims for Supplemental Security

Income and Disability Insurance Benefits. She contends that the

Administrative Law Judge (“ALJ”) erroneously evaluated the

opinion evidence of record in determining Nickerson’s residual

functioning capacity (“RFC”). The Acting Commissioner, in turn,

seeks an order affirming the ALJ’s decision. Because the ALJ’s

decision is adequately explained and supported by substantial

evidence, I affirm.

I. Procedural history

Nickerson first filed for benefits in November 2012,

seeking Disability Insurance Benefits and Supplemental Security

Income. See Administrative Transcript (“Tr.”) at 146-55. She

alleged that she was disabled and had been unable to work since

November 2009, when she was 34, because of knee and ankle injuries. See

Her applications were denied, and she

requested a hearing before an ALJ. See Tr. 33, 105.

In May 2014, Nickerson, her attorney, and an impartial

vocational expert appeared before an ALJ. Tr. 33. On July 7,

2014, the ALJ issued his written decision, concluding that

Nickerson was not disabled at any time prior to the date of his

decision. Tr. 18-29. Nickerson sought review by the Appeals

Council, which denied her request for review. Accordingly, the

ALJ’s denial of her applications for benefits became the final

decision of the Commissioner, subject to judicial review. See

Tr. 561-63. Nickerson filed a timely action in this court,

asserting that the ALJ’s decision is not supported by

substantial evidence.

In January 2017, this Court reversed the ALJ’s decision

because his “decision to afford Dr. Swinburne’s opinion little

probative weight [was] not supported by substantial evidence.”

Nickerson v. Colvin,

,

, at *6 (D.N.H.

Jan. 6, 2017). Upon remand, Nickerson submitted new medical

records concerning her March 2017 diagnosis for fibromyalgia.

See Tr. 478.

A hearing was held before the same ALJ on January 29, 2018,

at which a reviewing physician certified in internal medicine

and rheumatology, and a vocational witness were present. See

2 Tr. 483-516. Nickerson was accompanied by her new counsel. See

Tr. 483. The ALJ rejected Nickerson’s claims in an April 19,

2018 decision, finding that Nickerson had not been disabled from

her alleged onset date through the date of the ALJ’s decision.

See Tr. 433-457. Nickerson appealed that decision to this Court

on June 20, 2018.

II. Background

Nickerson is a 44-year-old mother. Tr. 340. She has a

daughter who is 19 and a son, 12. See, e.g.,

In her free

time, she enjoys playing Scrabble and doing word searches. Tr.

43. Nickerson helps her son get to school, performs household

chores, shops, cooks, and independently manages her finances.

Tr. 255. Her daughter helps around the house, can prepare

dinner and occasionally shops for groceries. Tr. 508.

Nickerson has worked as an aide to children with disabilities, a

bus monitor, and a bus driver. See Tr. 38, 42, 499-500. She

left high school after the eleventh grade. Tr. 38.

A. Pain and fibromyalgia 1

In February 2015, Nickerson visited Kimberly L. Dekker, MD

to complain of joint pain. Tr. 802. She reported having pain

in her shoulders, elbows, knees and ankles over the past four

1 Additional aspects of Nickerson’s medical history are outlined in Nickerson,

. I include only those facts relevant to the present appeal.

3 months, and stated that her hands were the worst.

The next

month, her primary care physician, Cynthia G. King, MD noted

that her symptoms were “most consistent with fibromyalgia.” Tr.

798. At her follow-up appointment in May 2017, Dr. King

recorded that Nickerson found Cymbalta 2 helped with her joint

pain, particularly “in her back and hips, less so in hands and

knees.” Tr. 862.

Doctor King referred Nickerson to Dr. Nazli Conway for a

rheumatology consultation in June 2017. See Tr. 1035.

Nickerson told Dr. Conway that she had unsuccessfully tried

Lyrica 3 and Gabapentin 4 to treat her fibromyalgia, but that her

current use of Cymbalta had been helping, notwithstanding

occasional swelling in her hands and ankles. Tr. 1035-36. In

that examination, Dr. Conway reported no swelling in Nickerson’s

wrists, elbows, and knees, did not observe swelling in her hands

and ankles, and rated Nickerson as having “5/5” strength in her

2 “Cymbalta is an antidepressant used for the treatment of fibromyalgia.” Swenson v. Berryhill, No. 16-1354-JAR,

, at *3 n.20 (D. Kan. Aug. 10, 2017) (citation omitted). 3 “Lyrica is indicated to treat fibromyalgia, diabetic nerve

pain, and pain after shingles.” Want v. Express Scripts, Inc.,

(D.D.C. 2012) (citation omitted). 4 “Gabapentin is used, inter alia, to control nerve pain, spinal injuries, fibromyalgia, and seizure disorders and is widely used to ease the symptoms of drug and alcohol detoxification.” Conklin v. Espinda, No. CV 19-00087 JMS-RT,

, at *2 n.4 (D. Haw. June 6, 2019) (internal quotation marks and citation omitted).

4 upper and lower extremities. Tr. 1037. Doctor Conway did not

make any medication changes, agreed with the use of Cymbalta,

and told Nickerson she could “return to Rheumatology on an as-

needed basis.” Tr. 1038.

In January 2018, reviewing physician Steven Caplin, MD, who

is board certified in internal medicine and rheumatology,

testified before the ALJ. See Tr. 483, 487. Referring to

Nickerson’s previous knee and ankle surgeries, Doctor Caplin

testified that “the record is consistent with somebody who has

had a lot of problems with their lower extremities.” Tr. 488.

Considering her knee and ankle problems, as well as her

diagnosis of fibromyalgia, Dr. Caplin concluded that her

conditions “would all be consistent with [being] limited to a

sedentary work situation.” Tr. 491. He also limited her to

lifting five pounds frequently and ten pounds occasionally, not

standing or walking for more than two to three hours per day,

not sitting more than six hours per day, never climbing ladders,

scaffolds, or ropes and never working around unprotected

heights. Tr. 491-92. When asked by Nickerson’s counsel whether

her fibromyalgia would cause her to miss four days of work per

month, Dr. Caplin responded that such a limitation would

“[c]ertainly not [be] inconsistent . . . with the record, but, I

can’t be sure about it.” Tr. 494.

5 B. Mental disorders

Nickerson has complained of depression and anxiety. In

January 2011, at her first appointment with Dr. King, she

reported that her anxiety was worsening, primarily from a bad

relationship that had recently ended. See Tr. 355. Doctor King

prescribed Klonopin, 5 and later increased the dosage, to treat

Nickerson’s anxiety and depression. Tr. 341. In March 2011,

she reported to Dr. King that her “panic attacks [had] improved

[with] Klonopin.” Tr. 353. The problem was not eliminated,

however. In June 2011, she saw Dr. King to follow-up on her

anxiety and depression, with her chief complaint being “panic

attacks at work.” See Tr. 340.

Objective psychological evaluations of Nickerson have

generally been ordinary. In a May 2012 office visit, Dang

Nguyen, PA-C, recorded that Nickerson was “well groomed & neatly

dressed, oriented to all spheres, [with] affect and mood

appropriate, normal interaction, good eye contact, [and] speech

& thought process appropriate.” Tr. 324. In March 2013, Dr.

King observed that she was “oriented to all spheres, [with]

affect and mood appropriate.” Tr. 406. In a May 2017 visit

5 “Klonopin is an anti-anxiety drug, generally used to control seizures and panic attacks.” United States v. Sarver, No. CR 05-0673-JSW-JL,

, at *4 (N.D. Cal. Sept. 18, 2006).

6 with Dr. King, Nickerson was “well groomed & neatly dressed,

oriented to all spheres, [with] affect and mood appropriate.”

Tr. 863. And in a July 2015 appointment, Dr. King observed that

she was “oriented to all spheres, [with] affect and mood

appropriate, [and] normal interaction.” Tr. 958.

Experts have concluded that Nickerson would be somewhat

limited in the workplace. In January 2013, William Swinburne,

Ph.D., conducted a comprehensive psychological profile of

Nickerson on referral from the Social Security Administration.

See Tr. 369-74. Doctor Swinburne diagnosed her with “major

depressive disorder, recurrent, moderate,” “pain disorder with

both psychological factors and general medical conditions,” and

“panic disorder without agoraphobia.” Tr. 372. He opined that

in a work-like situation, “she can be expected to have

difficulty providing reasonably good attendance.”

Jan

Jacobson, Ph.D., a psychological consultant, reviewed

Nickerson’s medical file, including the Swinburne consultation,

in February 2013. In contrast to Dr. Swinburne, she opined that

Nickerson’s “ability to perform activities within a schedule,

maintain regular attendance, and be punctual within customary

tolerances [would be] not significantly limited.” Tr. 81.

She concluded that Nickerson would not be significantly limited

in carrying out very short and simple instructions but would be

7 moderately limited in carrying out detailed instructions.

Doctor Jacobson agreed that Nickerson would have some sustained

concentration and persistence limitations.

In May 2013, Peter B. Delfausse, M.D., examined Nickerson.

See Tr. 251-57. He observed that she “does not see a mental

health counselor [and] takes medication for depression and

anxiety.” Tr. 251. Nickerson showed “limited vocational

adjustment,” had erratic persistence and was “easily distracted,

forgetful, and slow-paced.” Tr. 251. He noted that she was

“able to provide independent personal care and hygiene, perform

household chores, provide child care, shop, cook, drive, and

manage personal finances independently.” Tr. 256.

By May 2017, Nickerson had begun taking Cymbalta to assist

her fibromyalgia. See Tr. 862. She told Dr. King that her

depression had improved, that her mood and self-esteem had

improved, and that she thought Cymbalta was helping with those

issues.

C. Relevant-period employment

Beginning in late 2013, Nickerson worked as a part-time bus

monitor for Safeway Training and Transportation, assisting

developmentally disabled children. Tr. 498. In 2015, Safeway

asked Nickerson to become a bus driver. See Tr. 499-500. She

originally declined, but after having no income for five months,

8 she accepted the offer. Tr. 500. The company told her “that it

was only going to be part-time,” but the job “became more of a

full-time position” as she added routes for additional children.

Nickerson testified that during that time, “I would have to

drive with my wrists” because of swelling and pain.

She

worked full-time in her bus driver position from some time in

2015 until March 28, 2017. Tr. 481.

III. The ALJ’s second decision

The ALJ’s conclusion followed from his application of the

required five-step, sequential analysis. See

(a). At step one, the ALJ found that Nickerson had not

engaged in substantial gainful activity from September 30, 2012

until January 2015. Tr. 436. From January 2015 until March

2017, however, he noted that she worked above the substantial

gainful activity level.

At step two, the ALJ determined that Nickerson was severely

impaired by osteoarthritis of the left knee, osteoarthritis of

the right ankle, fibromyalgia, anxiety, affective disorder, and

somatoform disorder. Tr. 437 (citing

(c) &

416.920(c)). He observed that Nickerson also testified to

migraine headaches, intolerance to light and sound, and nausea

and vomiting, but concluded that those diagnoses were non-

9 severe.

Finally, he found that Nickerson’s fibromyalgia

was not severe. Tr. 439.

At step three, the ALJ found that Nickerson’s impairments,

considered individually or in combination, did not qualify as a

listed impairment pursuant to 20 C.F.R. Part 404, Subpart P,

Appendix 1. Tr. 439 (citing

(d), 404.1525,

404.1526, 616.920(d), 416.925 and 416.926). The ALJ

specifically considered dysfunction of a major joint and anxiety

and depression in his determination. Tr. 440. He concluded

that there was no record evidence that those conditions have

resulted in an inability to ambulate effectively.

The ALJ

found that Nickerson had a mild limitation in understanding,

remembering, or applying information; a mild limitation in

interacting with others; a moderate limitation regarding

concentrating, persisting, or maintaining pace; and a mild

limitation in adapting or managing herself. See Tr. 441-42.

Because the mental limitations did not amount to two “marked”

limitations or one “extreme” limitation, the ALJ concluded that

the “paragraph B” criteria were not satisfied. Tr. 442

(citations omitted). He also determined that the evidence

failed to establish the presence of the “paragraph C” criteria.

Tr.

(citations omitted).

10 At step four, the ALJ determined that Nickerson had the

residual functional capacity (“RFC”) to perform sedentary work,

as defined in

(b) & 416.967(a), except that

Nickerson was limited to lifting ten pounds occasionally and

five pounds frequently. Tr. 443. The ALJ provided that

Nickerson could stand or walk for two to three hours, and sit

for up to six hours, in an eight-hour workday. Id.. He

concluded that Nickerson could not climb ladders, ropes, or

scaffolds, could not crawl, and should have no exposure to

unprotected heights or dangerous industrial machinery.

Nickerson was limited to following simple to moderately

detailed, but not complex, instructions.

He found that

Nickerson could occasionally climb ramps and stairs, and could

occasionally balance, stoop, kneel, and crouch.

Finally,

the ALJ concluded that she could concentrate, persist, and

maintain pace “for the typical two-hour periods of an eight-hour

workday and forty-hour workweek.”

The ALJ acknowledged that Nickerson testified to

experiencing frequent pain and being “extremely limited” in her

range of functional abilities. Tr. 443-44. Nonetheless, he

concluded that “the claimant has failed to establish a

correlation between the allegations and the objective medical

11 evidence” and found Nickerson’s symptoms “not supported to the

extent alleged.” Tr. 444 (citations omitted).

According to the ALJ, some of Nickerson’s reports of

limitations were “not entirely consistent with the objective

medical evidence of record.” Tr. 446. For instance, he noted

that she suffered a knee injury in September 2009, but that her

knee examinations were “primarily benign” and she was last

treated for that condition in September 2014. See

(citing

Tr. 777). Nickerson similarly experienced an ankle injury in

October 2012, but examinations were also “primarily benign” and

the last treatment of the condition was in March 2014. Tr. 446

(citing Tr. 287). The ALJ also relied heavily on the fact that

“despite these conditions,” Nickerson worked as a bus driver

“part-time in 2013 and eventually moved to a full-time position

in 2015.”

At step four, the ALJ found that Nickerson was “capable of

performing past relevant work as a bus driver and monitor.” Tr.

454. Accordingly, he concluded that she was not disabled during

the relevant period. Id. at 456.

IV. 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

12 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,”

they are not conclusive. Nguyen v. Chater,

(1st

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

issues of credibility and for drawing inferences from evidence

in the record. Irlanda Ortiz,

. Furthermore,

resolving conflicts in the evidence is the exclusive role of the

ALJ.

13 V. Analysis

Nickerson asserts that the ALJ’s RFC assessment is not

supported by substantial evidence. According to Nickerson, the

ALJ failed to give adequate weight to evidence that her

fibromyalgia causes her to be off-task for at least a quarter of

the day, and erroneously omitted more severe attention and

concentration limitations that are supported by the record.

Neither argument succeeds.

A. Physical limitations

The ALJ’s determination that Nickerson could perform

sedentary work is supported by substantial evidence. In

particular, his decision to exclude an “off-task” limitation

based on the pain from Nickerson’s fibromyalgia is supported by

the medical record and adequately explained. 6

The record as a whole supports the ALJ’s conclusion that

Nickerson’s fibromyalgia does not preclude her from performing

sedentary work. He notes that Nickerson reported experiencing

pain in her “shoulders, elbows, knees, and ankles, and hands, as

well as some fatigue” in February 2015, see Tr. 445 (citing Tr.

6 In this appeal, Nickerson’s sole objection to the physical limitations in the RFC is based on the ALJ’s purportedly insufficient consideration of the pain caused by her fibromyalgia. See Doc. No. 8-1 at 9-10. In any event, his other determinations of physical limitations, such as the effect of Nickerson’s past ankle and knee injuries, are supported by substantial evidence.

14 802), and acknowledges that she was diagnosed with fibromyalgia

in March 2015. See Tr. 445 (citing Tr. 798). The record

indicates, however, that in a June 2017 appointment with Dr.

Conway, she reported that her use of Cymbalta had helped manage

her symptoms. See Tr. 446 (citing Tr. 1035). That examination

also indicated that Nickerson had full strength in her upper and

lower extremities, full range of motion in all her joints, and

no swelling in her wrists, elbows, or knees. See Tr. 446

(citing Tr. 1037). Dr. Conway “agreed with Cymbalta” and did

not make any medication changes, and provided that Nickerson

could return to Rheumatology on an as-needed basis. See Tr. 446

(citing Tr. 1038).

The ALJ also supported his conclusion with testimony from

reviewing medical expert Dr. Caplin, a rheumatologist. See Tr.

450. Dr. Caplin testified that Nickerson’s medical impairments

did not meet or equal a listed impairment. He concluded that

Nickerson’s knee, ankle, and fibromyalgia issues “would all be

consistent with [being] limited to a sedentary work situation.”

See Tr. 491; cf. Tr. 450. And the ALJ gave great weight to Dr.

Caplin’s recommendations on limitations to lifting, standing,

walking, and never climbing ladders, ropes, and scaffolds. See

Tr. 450 (citing Tr. 491-92).

15 Finally, the ALJ relied in part on the fact that Nickerson

worked as a part-time bus monitor beginning in 2013, and as a

full-time bus driver from 2015 until March 2017. See Tr. 446-47

(citing Tr. 481, 500). This full-time employment post-dated her

March 2015 diagnosis of fibromyalgia. See Tr. 446-47. Taken

together, this evidence constitutes substantial evidence.

An ALJ may “rely on the testimony of a non-examining

medical source (here, Dr. Caplin) when that testimony is

supported by the record.” Vorce v. Berryhill,

,

, at *6 (D.N.H. Aug. 14, 2018) (citation

omitted). Indeed, the “testimony of a non-examining medical

advisor . . . can alone constitute substantial evidence” in the

proper circumstances. Berrios Lopez v. Sec’y of Health & Human

Servs.,

(1st Cir. 1991) (citations omitted).

The ALJ gave great weight to the opinion of Dr. Caplin

regarding functional limitations, but only partial weight to Dr.

Caplin’s endorsement that Nickerson could be off-task 25% of the

workday due to her fibromyalgia. See Tr. 450-51. This weighing

of the evidence was proper for the ALJ to do. An ALJ “can

accept each piece of evidence completely, partially, or not at

all, provided that [he] does so on well-supported grounds.”

Dimambro v. US Soc. Sec. Admin., Acting Comm’r,

,

, at *4 (D.N.H. Jan. 5, 2018) (citation and

16 internal quotation marks omitted). He provided such grounds

here. The ALJ noted that Dr. Caplin’s “off-task” conclusion was

inconsistent with Nickerson’s testimony that she worked as a

full-time bus driver in 2015, 2016, and 2017 without negative

performance reviews. See Tr. 451 (citing Tr. 499-500; 481). A

claimant’s ability to work is a piece of evidence that may be

considered in rejecting a medical opinion. See Dimambro,

at *12 (“[P]art-time work is an appropriate factor for

the ALJ to consider.”) (citation omitted); see also

(“Even if the work you have done was not substantial

gainful activity, it may show that you are able to do more work

than you actually did.”).

He also discounted Dr. Caplin’s conclusion because “the

record reflects that the claimant’s medications became

ineffective around this time and after an adjustment in her

medications, she reported much better control of her symptoms.”

Tr. 451 (citing Tr. 862; 1035). And the record confirms that in

July 2017, Nickerson reported to Dr. King that Cymbalta helped

her symptoms. Tr. 862. Cf. Newman v. Berryhill,

,

, at *4 (D.N.H. May 15, 2018) (“The ALJ based his

RFC assessment not on a finding that [claimant] did not have

severe mental impairments, but on the finding that any

17 functional limitations resulting from such impairments were

adequately controlled by medication.”).

Nickerson’s objections to this conclusion fall short. She

claims that the cited treatment records do not support a finding

that her “pain symptoms entirely dissipated as a result of the

change in her medications.” See Doc. No. 8-1 at 10. But the

ALJ noted that Nickerson “reported much better control of her

symptoms”, see Tr. 448 (citing Tr. 1035), not that the pain was

absent.

Nickerson faults the ALJ for discounting the opinion of Dr.

Conway. An ALJ must provide “specific reasons” that will allow

a court to understand the weight he gave to a treating source’s

medical opinion and the reasons for that weight. See Kenerson

v. Astrue,

,

, at *4 (D.N.H. May 20,

2011) (quoting Social Security Ruling 96–2p,

, at

*5 (S.S.A. 1996)). The ALJ did so here. He explained that Dr.

Conway saw the claimant only one time, see Tr. 448 (citing Tr.

1031-58), that the opinion “was made out on a checklist style

form without any explanation for his opinion regarding the

claimant being significantly off-task and absent from work,” and

was internally inconsistent. See

Such factors are

appropriate to consider, and the ALJ offered a rationale that

could be accepted by a reasonable mind. Cf. 20 C.F.R.

18 §§ 404.1527(d)(2) & 416.927(d)(2); McGrath v. Astrue,

,

, at *5 n.13 (D.N.H. Mar. 22, 2012) (“When an

opinion is given in a cursory fashion, the ALJ can properly give

it less weight.”).

Finally, Nickerson notes that the ALJ inconsistently stated

that he accorded the findings of fact made by the state agency

physicians “substantial weight,” but then accorded the opinion

of Dr. Nault, a state agency physician, “limited weight.” See

Tr. 449-50. This does not constitute reversible error.

Although it is true that the ALJ mistakenly stated he accorded

the state agency physicians “substantial weight,” the discussion

of the individual opinion, such as noting that Dr. Nault did not

examine Nickerson or review the full medical record, makes clear

that he accorded limited weight. Nickerson has not shown that

such a defect had any adverse impact upon her claim.

In sum, the ALJ did not err in crafting the physical

limitations in Nickerson’s RFC assessment and his decision is

supported by substantial evidence.

B. Mental limitations

The ALJ’s conclusion that Nickerson could perform

moderately-detailed work over a forty-hour workweek is supported

by substantial evidence.

19 He acknowledged that Nickerson has been diagnosed with

anxiety, affective disorder, and somatoform disorder. See Tr.

451 (citing Tr. 372). 7 He noted, however, that Nickerson has not

received ongoing treatment by a psychiatrist and that her

conditions “have been primarily treated with medication

management provided by her primary care physician.” Tr. 451

(citing 340-41) (additional citations omitted). The decision

emphasizes that with medication and periodic adjustment, her

symptoms have seen significant improvement. Tr. 451 (citing

353; 862). The record reflects this improvement. See, e.g.,

Tr. 353 (“panic attacks improved w/ klonopin”); Tr. 862

(“Depression better. Thinks Cymbalta is helping with this as

well.”). Excepting the exacerbations that are adequately

controlled by medication, the ALJ observed that Nickerson’s

“mental status examinations during the relevant period have

otherwise been primarily normal.” Tr. 451 (citing 324; 406;

863; 958).

The ALJ relied on the opinion of state agency consultant

Jan Jacobson, Ph.D., who concluded that Nickerson would be able

to understand, remember, and sustain attention for “simple to

7 Specifically, Dr. Swinburne diagnosed Nickerson with moderate recurrent major depressive disorder, “pain disorder with both psychological factors and general medical condition,” and “panic disorder without agoraphobia.” Tr. 372. Nickerson does not submit that this discrepancy is material.

20 moderately detailed, but not complex, tasks for extended periods

of two hour segments.” Tr. 452 (citing Tr. 81) (additional

citation omitted). He considered that Nickerson was able to

maintain full-time employment as a bus driver for more than two

years during the relevant period, see Tr. 500, and that she was

able to care for her two children and manage her household. See

Tr. 452 (citing Tr. 255; 501-2).

I have already addressed some of Nickerson’s objections.

Reliance on a reviewing medical advisor can constitute

substantial evidence in the proper circumstances, see Berrios

Lopez,

, employment during the relevant period

can be considered as one factor among many, see Dimambro,

at *12, and an ALJ may consider how impairments are

being controlled by medication. See Newman,

, at

*4.

Another alleged flaw, that the ALJ improperly discounted

the 2013 examining opinion of Dr. Delfeusse, is without merit.

Nickerson avers that the ALJ gave that opinion limited weight

“based only upon the evidence of her later work activity.” Doc.

No. 8-1 at 12. In fact, the ALJ found the opinion of Dr.

Delfeusse inconsistent “with the record as a whole,” and

referenced the ability to maintain full-time employment “in

particular.” See Tr. 454. And the record does support the

21 ALJ’s conclusions that Nickerson received generally normal

mental status examinations, that medication successfully

controlled her conditions, and that her she was able to manage

her household despite her impairments.

Nickerson’s primary argument, however, is that the ALJ

never cured the errors that caused this Court to previously

remand the case.

i. Opinion of Dr. Swinburne

“An ALJ must take into account the medical opinions in a

claimant's case record when making a disability determination.”

Wenzel v. Astrue,

,

, at *4 (D.N.H.

July 6, 2012) (citing

(b)). It is for the

Secretary, and not the Court, to determine issues of

credibility, draw inferences from the record evidence, and

resolve conflicts in the evidence. Irlanda Ortiz,

(citation omitted). Nonetheless, reasons given for

assigning little weight to a medical opinion must be valid and

supported by the record. See Nickerson,

at *5.

Nickerson contends that the ALJ never mended the errors

that prompted this Court to previously remand the case. See id.

at *1. In that case, the Court held that the ALJ improperly

concluded that Dr. Swinburne’s conclusions were based entirely

on Nickerson’s subjective reports, relied on medical records

22 that referred to a different patient, and failed to provide a

sufficient justification for assigning little weight to Dr.

Swinburne’s opinion. See id. at *5-6. On remand, the ALJ again

accorded the opinion of Dr. Swinburne “limited weight.” See Tr.

453. This time, however, the ALJ’s opinion is adequately

supported.

Unlike the original decision, which concluded that “Dr.

Swinburne could only conclude [such limitations] based upon the

claimant’s self-report,” see Tr. 23, the new opinion states that

“some of Dr. Swinburne’s opinion appears to be based” upon self-

reports. Tr. 453 (emphasis added). The opinion likewise omits

any reference to the records that pertained to the other

patient. See Nickerson,

at *5. Dr. Swinburne

opined that Nickerson lacks motivation and energy and “can be

expected to have difficulty providing reasonably good

attendance.” Tr. 372. The ALJ discounted this conclusion, in

part, because of Nickerson’s testimony that she “maintained

full-time employment for more than two years.” Tr. 453. That

was a permissible conclusion. See Dimambro,

, at

*12.

The ALJ also relied on the opinion of Dr. Jacobsen, which

he found “most persuasive,” in discounting Dr. Swinburne’s

conclusion. See Tr. 454. After reviewing Dr. Swinburne’s

23 opinion, Dr. Jacobsen concluded that Nickerson was “able to

sustain attention for simple to moderately detailed, but not

complex tasks” for two hours in an eight-hour day. See Tr. 82.

An ALJ may accord substantial weight to the opinions of non-

treating medical reviewers when those doctors have reviewed the

record and supported their conclusions with reference to medical

findings. D.A. v. Colvin, No. CIV.A. 11-40216-TSH,

, at *7 (D. Mass. Sept. 30, 2013) (citing Quintana v.

Comm’r. of Soc. Sec.,

(1st Cir. 2004)).

Such is the case here. The ALJ’s decision to accord limited

weight to the opinion of Dr. Swinburne is supported by

substantial evidence and adequately explained.

-

In sum, the ALJ properly evaluated and explained the

limitations he provided in his RFC assessment. The decision of

the Acting Commissioner shall be affirmed.

V. CONCLUSION

The ALJ’s RFC assessment is supported by substantial

evidence and contains no reversible error. Pursuant to sentence

four of

(g), I grant the Acting Commissioner’s

motion to affirm (Doc. No. 11) and deny Jodie Marie Nickerson’s

motion to reverse (Doc. No. 8). The clerk is directed to enter

judgment accordingly and close the case.

24 SO ORDERED.

/s/ Paul Barbadoro_________ Paul Barbadoro United States District Judge

June 27, 2019

cc: D. Lance Tillinghast, Esq. Amelia E. Stewart, Esq. Rami M. Vanegas, Esq.

25