UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Fawn Duchesne

v. Civil No. 18-cv-904-JD Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Fawn Duchesne seeks review, pursuant to

(g),

of the decision of the Acting Commissioner that denied her

application for disability insurance benefits under Title II.

In support, she contends that the Administrative Law Judge

(“ALJ”) erred in weighing the medical opinion evidence, which

caused him to assess an erroneous residual functional capacity.

The Acting Commissioner moves to affirm.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s

factual findings if they are supported by substantial evidence. § 405(g). Substantial evidence is “more than a scintilla of

evidence” but less than a preponderance. Purdy v. Berryhill,

(1st Cir. 2018). The court must affirm the ALJ’s

findings, even if the record could support a different

conclusion, when “a reasonable mind, reviewing the evidence in

the record as a whole, could accept it as adequate to support

[the ALJ’s] conclusion.” Irlanda Ortiz v. Sec’y of Health &

Human Servs.,

(1st Cir. 1991) (internal

quotation marks omitted); accord Purdy,

.

Background

Fawn Duchesne applied for disability benefits, alleging an

amended disability onset date of June 3, 2015, when she was

thirty-six years old. She had previously worked as a teacher, a

cashier, a waitress, a police officer, a photo developer, and a

sandblaster/graphic designer.

Neither Duchesne nor the Acting Commissioner include

information about the record evidence of Duchesne’s mental or

physical medical treatment in their factual statements.

Instead, both factual statements summarize the administrative

proceedings and the opinions provided in the record. Therefore,

the background includes nothing about what treatment, if any,

Duchesne may have had for mental or physical impairments.

2 A. Procedural History

After the Disability Determination Services denied

Duchesne’s application, she requested a hearing before an ALJ.

At the first hearing, Duchesne’s representative requested

consultative examinations. Therefore, the hearing ended.

Another hearing was held on February 28, 2017. During that

hearing Duchesne asked to amend her alleged disability onset

date. That request was granted, and the hearing ended.

A third hearing was held on July 23, 2017. Dr. John Kwock,

a board certified orthopedic surgeon testified to give his

opinion about Duchesne’s claimed orthopedic impairments. That

hearing was continued to allow a psychologist, Billings Fuess,

Ph.D., time to review Duchesne’s records. A fourth hearing was

held on February 1, 2018, during which Dr. Fuess, Dr. Charles

Cooke, and a vocational expert testified.1

The ALJ issued a decision on February 28, 2018, finding

that Duchesne was not disabled. The ALJ found that Duchesne had

severe impairments due to degenerative disc disease in her

lumbar and cervical spine, fibromyalgia, small fiber neuropathy,

anxiety/PTSD, depression, and a somatoform disorder. Based on

opinions provided by Dr. Kwock, Dr. Cooke, Dr. Loeser, Dr.

Williams, and Dr. Fuess the ALJ determined that Duchesne had the

1 The same ALJ presided at the second, third, and fourth hearings.

3 residual functional capacity to do light work with some postural

and activity limitations and with limitations to a low stress

environment, only occasional interaction with the general

public, and needing a non-critical supervisor. Although the ALJ

found that Duchesne was unable to perform any of her past work,

he found that she could do other work as shown by the vocational

expert’s testimony. The Appeals Council denied her request for

review.

B. Opinion Evidence

The record includes opinion evidence from Duchesne’s

treating physician, Warren Chin, D.O.; her treating

psychologist, Cheryl Bildner, Ph.D.; consultant physicians, John

Kwock, M.D., Charles Cooke, M.D., Peter Loeser, M.D.; James

Williams, M.D.; and a consultant psychologist, Billings Fuess,

Ph.D.

1. Medical Opinions

a. Dr. Chin

Duchesne’s primary care physician, Dr. Chin, is an

osteopath. Dr. Chin provided a Physical Impairment Medical

Source Statement on February 23, 2017. He stated that Duchesne

had been diagnosed with fibromyalgia and that she suffered from

severe pain. On the form, Dr. Chin checked the box showing that

4 pain would rarely interfere with Duchense’s ability to work but

then checked boxes that she had very limited ability to walk,

stand, and sit, less than two hours in a work day. He also

found that she could lift no weight at all and could not do

postural activities.

b. Dr. Kwock

Dr. Kwock, who is a board certified orthopedic surgeon,

testified at the third hearing as a medical consultant. Dr.

Kwock found that Duchesne had a severe impairment due to

spondylolisthesis at L5-S1 (lumbral and sacral spine level). He

assessed Duchesne’s residual functional capacity and found she

could do work at the light exertional level, could sit, stand,

and walk for six hours in an eight-hour day, and could

frequently or occasionally do climbing and postural activities

except that she could never crawl or work in a hazardous

environment.

During his testimony, Dr. Kwock explained that an MRI done

in June of 2017 of Duchesne’s cervical spine, with a written

impression of multilevel degenerative disc disease, did not show

any additional impairment because it lacked clear evidence of

disc herniation or neurological involvement. When asked about

an examination report in December of 2014 that diagnosed

“polysymptomatic distress,” Dr. Kwock interpreted the report to

5 mean that the pain sensation was not from an anatomical

condition but from an ingrained or sensitized memory of pain in

that area. Dr. Kwock discounted the treatment notes by

Duchesne’s primary care physician, Dr. Chin, about muscle spasms

because the notes were inconsistent with the anatomy of the

muscles in the cervical spine and because an observation of

muscle spasm does not necessarily correlate with a pathology.

c. Dr. Cooke

Dr. Cooke, who is board certified in internal medicine and

rheumatology, testified as a consultant at the fourth hearing

held on February 1, 2018. Dr. Cooke was called as an expert to

focus on the effects of fibromyalgia, along with other issues.

Dr. Cooke reviewed various impairments from the record and

found no functional limitations because of spinal issues,

tachycardia and arrhythmia, or fibromyalgia that would meet a

listed impairment. Dr. Cooke explained that use of narcotic

medication for non-specific back pain and fibromyalgia is not

supported. Dr. Cooke found that Dr. Chin’s opinion that

Duchesne was very limited in her physical abilities was not

supported by the objective evidence and was based, instead, on

what Duchesne told him.

He found that Duchesne, despite her impairments, could

stand and walk for four to six hours in an eight-hour day and

6 had no limits on her ability to sit. He limited her to doing

postural activities for two-thirds of a work day. She could

lift and carry ten pounds frequently and twenty pounds

occasionally. Dr. Cooke stated that Duchesne should avoid

hazardous environments, including the use of ladders and

scaffolds.

In response to questioning by Duchesne’s counsel, Dr. Cooke

addressed testing that was done to address small fiber

neuropathy. Dr. Cooke testified that the results did not

indicate small fiber neuropathy and instead sounded like

fibromyalgia. Dr. Cooke also testified that Dr. Chin’s notes

about muscle spasms up and down the spine did not correlate with

nerve root issues or radiculopathy. Instead, Dr. Cooke thought

the symptoms were more likely caused by fibromyalgia or by a

nonmedical issue such as tension or anxiety, with less severe

pain. He disagreed that the level of pain would cause the

degree of limitations that Dr. Chin found.

d. Dr. Loeser

Dr. Loeser did a consultative examination of Duchesne on

September 29, 2016. He diagnosed low back pain after fusion

surgery at L5-S1. Dr. Loeser found no issues during his

examination that would support significant limitations in

7 Duchesne’s ability to function. He found no work-related

limitations.

e. Dr. Williams

Dr. Williams provided a “Disability Determination

Explanation” as part of the processing of Duchesne’s application

for benefits. Duchesne alleged a degenerative disc condition

and other back issues as her impairments. Dr. Williams found a

medically determinable impairment due to “Disorders of Back-

Discogenic and Degenerative.”

With respect to function, Dr. Williams found that Duchesne

could occasionally carry twenty pounds, could stand or walk for

six hours in an eight- hour day, and could sit for six hours in

an eight-hour day. He limited her ability to do some postural

activities to occasionally and frequently and found no other

limitations.

2. Psychological Opinions

a. Dr. Bildner

Dr. Bildner had therapy sessions with Duchesne,

beginning in September of 2016. She provided two opinions, one

on October 5, 2016, and the second on July 22, 2017.

In her first opinion, Dr. Bildner found that Duchesne had

no limitations in her ability to remember and carry out

8 instructions; marked limitations in her ability to interact

appropriately with co-workers, supervisors, and the public

because of Duchesne’s reports of pain, and an inability to

initiate and sustain tasks.

In her second opinion, Dr. Bildner noted diagnoses of PTSD,

unspecified anxiety disorder, major depressive disorder, somatic

disorder, and ADHD “by report.” She noted the focus of her

treatment was to lessen anxiety and depression and to manage

pain. She checked moderate to marked severity of Duchesne’s

mental impairments. She also checked moderate and marked

limitations in Duchesne’s ability to do work activities, with

some extreme limitation in her ability to do unskilled work.

b. Dr. Fuess

Dr. Fuess, who is board certified in clinical psychology,

testified at the third and fourth hearings as a consultant. Dr.

Fuess found severe medically determinable impairments based on

Dr. Bildner’s opinion of PTSD, anxiety disorder, major

depression, and a somatic disorder. He found that she could do

work with simple and even more complex instructions in a low-

stress environment. Dr. Fuess restricted Duchesne to limited

interaction with the public, moderate limitations in interacting

with co-workers and supervisors, and needing a supportive

9 supervisor. She also had mild to moderate limitation in her

ability to interact with co-workers.

When questioned by Duchesne’s counsel, Dr. Fuess testified

that Dr. Bildner’s treatment notes and notes from medical

providers did not support the severity of the limitations she

checked on the opinion forms. Duchesne’s counsel reviewed

specific treatment notes, but Dr. Fuess disagreed that the

comments supported the severity of the limitations that Dr.

Bildner found, taken in light of the lack of objective evidence,

such as mental status reports by Dr. Bildner, and Duchesne’s

ability to function through the treatment sessions.

Discussion

Duchesne contends that the ALJ erred in giving more weight

to the medical opinions of consultant physicians and the

consultant psychologist than to her treating doctor, Dr. Chin,

and her treating psychologist, Dr. Bildner. Based on that

alleged error, Duchesne argues that the residual functional

capacity assessment was wrong, precluding the ALJ’s finding that

she is not disabled. The Acting Commissioner argues that the

ALJ properly weighed the opinion evidence and properly assessed

Duchesne’s residual functional capacity.

“Medical opinions are statements from acceptable medical

sources that reflect judgments about the nature and severity of

10 [a claimant’s] impairment(s), including [his] symptoms,

diagnosis and prognosis, what [he] can still do despite

impairment(s), and [his] physical or mental restrictions.”

(a)(1). An ALJ is required to consider medical

opinions along with all other relevant evidence in a claimant’s

record.

(b). Medical opinions are

evaluated based upon the nature of the medical source’s

relationship with the claimant, the extent to which the source

provides evidence to support the opinion, the extent the opinion

is consistent with other evidence in the record, the

specialization of the medical source, and other factors

including the understanding the source has of the social

security system. § 404.1527(c).

A. Treating Providers

In general, an ALJ will give more weight to the opinion of

a treating source and may give that opinion controlling weight

if it is well supported and not inconsistent with other medical

evidence in the record. § 404.1527(c)(2). The ALJ is required

to give “good reasons” in the disability decision for the weight

given to treating source opinions. Id. In support of her

motion to reverse, Duchesne argues that the reasons given for

discounting the opinions of Dr. Chin and Dr. Bildner were not

the required good reasons.

11 1. Dr. Chin

The ALJ gave Dr. Chin’s opinion little weight because it

was not supported by cites to diagnostic testing and was over

stated in light of the objective evidence, testing, and

Duchesne’s reports about her daily activities. Dr. Chin’s

treatment notes did not show the level of disability that was

expressed in the opinion. In particular, Dr. Chin’s

neurological examinations show normal results despite Duchesne’s

complaints of pain, although Dr. Chin also recorded observing

muscle spasms.2 Other test results showed little or no physical

cause for the pain, which Dr. Chin acknowledged. The ALJ also

noted that Dr. Cooke and Dr. Kwock testified that Dr. Chin’s

opinion was not supported by the record evidence or by Dr.

Chin’s own treatment notes.

Duchesne argues that the ALJ did not take Dr. Chin’s

opinions in the appropriate context because the limitations Dr.

Chin assessed were in a competitive work environment, the

limitations were based on fibromyalgia, Duchesne’s function

report showed more limitations than the ALJ found. As the ALJ

noted, Dr. Chin found she was incapable of doing even low stress

work, so that his opinion was not limited to a competitive work

2 Dr. Kwock explained in his testimony why those observations provided little medical evidence.

12 environment. The ALJ relied on the opinion of Dr. Cooke to

assess the effect of fibromyalgia, and therefore did not ignore

that diagnosis. With respect to Duchesne’s activities, while

her function report described limited ability to function, other

parts of the record show that she engaged in more activities

than she reported.

The ALJ gave good reasons for discounting the weight given

to Dr. Chin’s opinion.

2. Dr. Bildner

The ALJ gave little weight to the opinions provided by

Duchesne’s treating psychologist, Dr. Bildner. The ALJ

explained that in her first opinion Dr. Bildner focused on the

effects of pain reported by Duchesne rather than any effects of

Duchesne’s mental health impairments on her ability to function.

The ALJ noted that the severity of the limitations that Dr.

Bildner found was inconsistent with Duchesne’s daily activities,

her application for benefits, her function report, and Dr.

Bildner’s treatment notes.

B. Consultants

ALJs are required to consider the opinions of state agency

medical and psychological consultants “because [they] are highly

qualified and experts in Social Security disability evaluation.”

13

.1513a(b)(1). ALJs may also receive medical

evidence from other experts. § 404.1513a(b)(2). The opinions

of state agency consultants and medical experts are assessed

based on the same factors used for considering opinions from

treating providers. § 404.1513a(b); § 404.1527(c).

The ALJ relied on the opinions provided by Dr. Kwock, Dr.

Cooke, Dr. Loeser, Dr. Williams, and Dr. Fuess to assess

Duchesne’s residual functional capacity. Despite Duchesne’s

criticisms of those opinions, the ALJ adequately explained the

reasons he relied on them. Duchesne has not shown that the ALJ

erroneously gave great weight to the consultants’ opinions.3

Therefore, substantial evidence supports the ALJ’s residual

functional capacity assessment and the decision that Duchesne is

not disabled.

3 To the extent Duchesne argues that the ALJ’s assessment is not supported by substantial evidence because it is not entirely supported by a single opinion, she is mistaken. Instead, an ALJ may use portions of expert opinions and need not adopt one opinion in whole. Perry v. Social Sec. Admin. Comm’r,

, at *7 (D. Me. Oct. 13, 2011). “The basic idea which the claimant hawks—the notion that there must always be some super-evaluator, a single physician who gives the factfinder an overview of the entire case—is unsupported by the statutory scheme, or by the caselaw, or by common sense, for that matter.” Evangelista v. Sec’y of Health & Human Servs.,

(1st Cir. 1987).

14 Conclusion

For the foregoing reasons, the claimant’s motion to reverse

(document no. 7) is denied. The Acting Commissioner’s motion to

affirm (document no. 8) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

March 19, 2019

cc: D. Lance Tillinghast, Esq. Rami M. Vanegas, Esq.

15