UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Wyatt James Thurston

v. Civil No. 17-cv-660-LM Opinion No.

Commissioner, Social Security Administration

O R D E R

Wyatt James Thurston seeks judicial review of the decision

of the Acting Commissioner of the Social Security

Administration, denying his application for disability insurance

benefits. Thurston 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 Thurston’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

2 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,

where 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. 12). The

court provides a brief summary of the case here.

On October 31, 2014, Thurston filed an application for

disability insurance benefits, alleging a disability onset date

of September 15, 2013, when he was 24 years old. He alleged a

disability due to bipolar disorder, social anxiety disorder, and

attention-deficit/hyperactivity disorder.

After Thurston’s claim was denied at the initial level, he

requested a hearing in front of an ALJ. On May 10, 2016, the

ALJ held a hearing, during which Thurston testified and was

represented by an attorney.

On August 3, 2016, the ALJ issued an unfavorable decision.

He found that Thurston had the following severe impairments:

affective disorder, attention deficit hyperactivity disorder,

3 and anxiety. He further found that Thurston had the residual

functional capacity to perform a full range of work at all

exertional levels with certain nonexertional limitations,

including only occasional interaction with the public and only

simple, routine tasks.

In assessing Thurston’s residual functional capacity, the

ALJ gave some weight to the opinion of Dr. Michael Schneider,

the non-examining state agency psychologist. The ALJ ultimately

adopted a more restrictive RFC assessment than was contained in

Dr. Schneider’s opinion.

Ralph E. Richardson, an impartial vocational expert,

testified at the hearing. In response to hypotheticals posed by

the ALJ, Richardson testified that a person with Thurston’s RFC

could perform jobs that exist in significant numbers in the

national economy. Based on Richardson’s testimony, the ALJ

found at Step Five that Thurston was not disabled.

On September 29, 2017, the Appeals Council denied

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

Acting Commissioner’s final decision. This action followed.

DISCUSSION

Thurston contends broadly that the ALJ erred in his

residual functional capacity assessment. Viewed generously,

4 Thurston argues that the ALJ erred in his evaluation of the

medical opinion evidence. Specifically, he contends that the

ALJ erred in giving little weight to the opinions of Dr. James

Kates, Thurston’s treating psychiatrist, and Dr. Girish Joshi.

He also criticizes the ALJ for purportedly ignoring the opinion

of his mental health counselor, Charles Farrell.1

“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). “Medical opinions are

statements from acceptable medical sources that reflect

judgments about the nature and severity of [the claimant’s]

impairment(s), including [the claimant’s] symptoms, diagnosis

and prognosis, what [the claimant] can still do despite

impairment(s), and [the claimant’s] physical or mental

restrictions.” § 404.1527(a)(1).

1 Thurston states generally that the ALJ’s residual functional capacity assessment is not supported by substantial evidence. He also briefly discusses the ALJ’s evaluation of Dr. Schneider’s opinion, but he does not appear to challenge the weight the ALJ afforded to that opinion. To the extent Thurston intended to challenge the weight the ALJ gave to Dr. Schneider’s opinion or the ALJ’s RFC assessment other than to the ALJ’s evaluation of Farrell’s and Drs. Kates’s and Joshi’s opinions, those arguments are 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 . . . .”).

5 The ALJ analyzes the opinions of state agency consultants,

treating sources, and examining sources under the same rubric.

See Ledoux,

, at *4;

(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).

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.

6 I. Dr. Kates

Thurston argues that the ALJ erred in affording little

weight to the opinions of his treating psychiatrist, Dr. James

Kates. To the extent he raises a specific challenge to the

weight the ALJ gave to Dr. Kates’s opinions, Thurston notes that

the ALJ discounted certain of Dr. Kates’s opinions because they

were inconsistent with his own treatment notes. See Admin. Rec.

at 30 (giving Dr. Kates’s March 2015 opinion little weight, in

part, because it was inconsistent with his office notes that

documented generally normal mental status exams);

(giving

Dr. Kates’s April 2016 opinion little weight, in part, because

it was inconsistent with his treatment notes stating that

Thurston’s mental condition was “minimal” to “moderate” in

severity). Thurston contends that the ALJ’s reasoning was

faulty because “[w]hen presented with the ALJ’s interpretation

of his notes Dr. Kates authored the letter present in the record

at AR 19-20 which details the Plaintiff’s specific issues in

pursuing employment.” Doc. no. 7-1 at 4.

Thurston’s argument based on Dr. Kates’s letter is without

merit. First, Dr. Kates wrote the letter on October 7, 2016.

Thus, this evidence was not a part of the record when the ALJ

issued his decision on August 3, 2016 and “this court cannot

7 consider additional evidence submitted only to the Appeals

Council.” Cassidy v. Berryhill, No. 17-CV-451-SM,

, at *5 (D.N.H. Mar. 5, 2018).2

Even if the court could consider Dr. Kates’s October 7,

2016 letter, it would not change the outcome of the case. The

letter states that Dr. Kates believes Thurston should be

considered disabled “at this point.” Admin. Rec. at 19. The

letter does not address the ALJ’s reasons for affording Dr.

Kates’s opinions little weight, discuss Thurston’s functional

capacity, or provide insight into Thurston’s impairments during

the relevant period. See Whitehead v. Astrue, No. CIV.A. 11-

11292-RWZ,

, at *6 (D. Mass. Nov. 26, 2012)

(affording little weight to medical opinions because “the

opinions at issue are worded in the present tense without any

retrospective component and thus purport to assess plaintiff's

functioning at the time they were rendered”); Pierce v. Astrue,

No. 10–cv–242–JAW,

at *5 (D. Me. Jul. 7, 2011)

(holding that medical opinion phrased in present tense reflected

2 The Appeals Council determined that the letter did not change the outcome of the decision and Thurston does not challenge the Appeals Council’s conclusion. See, e.g., Natsis v. Berryhill, No. 16-CV-063-LM,

, at *3 (D.N.H. Mar. 16, 2017) (declining to address new evidence submitted to the Appeals Council because plaintiff’s “motion challenges the ALJ’s determination, not the Appeals Council’s decision”).

8 claimant's then-current condition, not his condition prior to

loss of insured status).

In addition, the determination of disability is reserved to

the Acting Commissioner. § 404.1527(d)(1). For that reason,

opinions about disability from medical providers are not

entitled to weight. Gregory T. v. Berryhill, No. 1:17-CV-00445-

LEW,

, at *7 (D. Me. Nov. 16, 2018); Boardway v.

Berryhill, No. 3:17-CV-30069-KAR,

, at *10 (D.

Mass. Sept. 10, 2018).

Therefore, Thurston’s argument as to Dr. Kates’s opinions

is unpersuasive.

II. Dr. Joshi

Thurston criticizes the ALJ for giving little weight to the

opinion of Dr. Girish Joshi because the ALJ purportedly “could

not determine Dr. Joshi’s treatment relationship to the

Plaintiff.” Doc. no. 7-1 at 4. Thurston appears to suggest

that Dr. Joshi’s treating relationship with him was apparent

from the administrative record. He cites Dr. Joshi’s notes,

showing that he examined Thurston on several occasions.

Thurston mischaracterizes the ALJ’s reasons for giving Dr.

Joshi’s opinion little weight. The ALJ stated that the record

evidence “does not contain any indication that [Dr. Joshi] ever

9 examined or treated claimant during the relevant period.”

Admin. Rec. at 31 (emphasis added). As the Acting Commissioner

notes, Dr. Joshi’s treatment notes begin in April 2015, while

Thurston’s last insured date was December 31, 2013. Therefore,

the ALJ’s statement was not erroneous. See Sullivan v. Colvin,

No. 14-CV-06-JL,

, at *1 (D.N.H. Mar. 11, 2015)

(A “‘claimant is not entitled to [DIB] unless he can demonstrate

that his disability existed prior to the expiration of his

insured status,’ i.e., his date last insured.” (quoting Cruz

Rivera v. Sec’y of HHS,

(1st Cir. 1986))).

Further, the ALJ gave additional reasons for giving Dr.

Joshi’s opinion little weight, including that the record

evidence does not show Dr. Joshi’s specialization or focus of

practice and that his opinion is inconsistent with other medical

evidence in the record. Thurston has not shown any error in the

ALJ’s analysis of Dr. Joshi’s opinion.

III. Charles Farrell

Thurston asserts that the ALJ erroneously failed to address

the opinion of his Licensed Mental Health Counselor, Charles

Farrell. But despite this claim of error, Thurston fails to

cite or discuss any opinion by Farrell that the ALJ failed to

consider. The court’s review of Farrell’s notes in the

10 Administrative Record does not reveal an opinion as to

Thurston’s functional capacity.3 Therefore, the ALJ committed no

error.

For these reasons, the court denies Thurston’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. 7) is denied, and the Acting Commissioner’s

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 30, 2019

cc: Counsel of Record

3 The court notes for sake of completeness that, as other courts have noted, Farrell is not an acceptable medical source and, therefore, cannot offer a medical opinion. See, e.g., Cummings v. Astrue, No. CIV. 09-391-P-H,

, at *5 (D. Me. May 20, 2010) (“The plaintiff acknowledges that Farrell, a counselor, is not an ‘acceptable medical source’ . . . .”); see also § 404.1527(a)(1) (“Medical opinions are statements from acceptable medical sources . . . .”).

11