UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jennifer Freddette

v. Case No. 17-cv-672-PB Opinion No.

Nancy A. Berryhill, Acting Commissioner Social Security Administration

MEMORANDUM AND ORDER

Jennifer Freddette challenges the denial of her

applications for supplemental security income and disability

insurance benefits pursuant to

(g). She contends

that the Administrative Law Judge (“ALJ”) who considered her

applications improperly evaluated the medical opinion evidence

and Freddette’s testimony in assessing her residual functional

capacity. The Acting Commissioner, in turn, moves for an order

affirming the ALJ’s decision. I deny Freddette’s motion and

affirm the Commissioner’s decision.

I. BACKGROUND

A. Procedural Facts

Freddette is a 48-year-old woman with a high school

education. See Administrative Transcript (“Tr.”) 34. She has

previously worked as a commercial cleaner at one facility for 10

years and as a certified nurse’s aide at a nursing home for 2-3

years. Tr. 683. Freddette has allegedly been disabled since July 11, 2014, due to a combination of anxiety disorder, mood

disorder, and asthma. See Tr. 25. 1

Freddette’s applications were initially denied in September

2015. On January 4, 2017, she testified at a hearing before ALJ

Lisa Groeneveld-Meijer, who ultimately denied her applications.

Tr. 23. The Social Security Administration (“SSA”) Appeals

Council denied Freddette’s request for review in October 2017,

rendering the ALJ’s decision the final decision of the Acting

Commissioner. See Tr. 1-6. Freddette now appeals.

B. Medical Opinions

The record reflects medical opinions of three nontreating

providers: Dr. Stefanie Griffin, a psychologist who performed a

one-time mental consultative examination; Dr. Stuart Gitlow, a

psychiatrist who reviewed Freddette’s records and testified at

the hearing as an impartial medical expert; and Dr. John Warren,

a state agency psychologist who rendered his opinion after

reviewing the evidence of record. 2

Dr. Griffin diagnosed Freddette with generalized anxiety

disorder, mood disorder, and borderline intellection

1 In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts. See Doc. No. 12. 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 The record does not contain an opinion from a treating source. 2 functioning. Tr. 688. She opined that Freddette appeared to

require more support than her peers to complete complex daily

activities. She explained that Freddette reported heavy

reliance on her mother, including managing her household

finances. Freddette also regularly forgot to take her

medication. Tr. 686.

According to Dr. Griffin, Freddette did not appear capable

of maintaining appropriate social interactions with others. She

noted that Freddette was polite and cooperative during testing,

presented with neutral mood, and had a stable and appropriate

affect. Tr. 687. Freddette, however, endorsed symptoms of

severe depression and anxiety on self-report measures and

reported yelling at her mother out of frustration. Tr. 684,

687. She was “overly timid and apologetic” during the exam,

which Dr. Griffin found “consistent with her report that she

tends to isolate because of feelings of worthlessness and

discomfort around others.” Tr. 687.

The results of a Folstein Mini-Mental State Exam that Dr.

Griffin administrated indicated that Freddette’s mental state

was “impaired” and her overall intellectual performance was in

the borderline impaired range. Tr. 684. Dr. Griffin noted that

Freddette had difficulty following a three-step command and had

to concentrate carefully while test instructions were being

given. Tr. 684, 687. As a result, Dr. Griffin believed that

3 Freddette was not capable of consistently understanding and

remembering complex spoken information or consistently

completing complex tasks. Tr. 687.

In the end, Dr. Griffin concluded that Freddette did not

appear capable of adhering to a regular work schedule,

maintaining appropriate interactions with others in a work

setting, or making work-related decisions. She explained that

this was due to Freddette’s intellectual limitations and

unmanaged psychiatric symptoms. Tr. 688.

Dr. Gitlow reviewed all the evidence in the record,

including Dr. Griffin’s report, and testified at the hearing as

an impartial medical expert. Dr. Gitlow opined that Freddette

had moderate limitations in understanding, remembering, and

applying information; mild limitations in interacting with

others; moderate limitations in concentration, persistence, and

pace; and moderate limitations in adapting and managing herself.

Tr. 51. Because of her difficulty managing anger, Dr. Gitlow

believed that Freddette “would not do well with a significant

number of peers, colleagues, critical supervisors” or the

general public but could interact with a limited number of

people at work if the same people were there day-to-day. Tr.

54, 55-56.

Dr. Gitlow testified that Freddette’s personality disorder

and intellectual function “have been the same, virtually,

4 throughout her adult life” and that she showed “good adaptive

functioning despite these problems, including working for a

single facility for ten years and working at another facility

for two to three years.” Tr. 50. Although he agreed that

Freddette’s issues with mood and anxiety “appear to have

worsened” over time, Dr. Gitlow testified that she had a “good”

but “[n]ot a perfect” response to treatment with medication and

therapy. Tr. 50-51.

State agency psychologist Dr. Warren also reviewed the

record evidence. He opined that Freddette was able to “perform

basic tasks and relate with others well enough for routine

workplace purposes;” understand and remember simple

instructions; carry out simple tasks within acceptable

attention, persistence, and pace tolerances; and relate

adequately with supervisors and coworkers, but not the general

public. Tr. 106-109.

C. The ALJ’s Decision

The ALJ assessed Freddette’s claims under the five-step,

sequential analysis required by

. At step

one, she found that Freddette had not engaged in substantial

gainful activity since July 11, 2014, her alleged disability

onset date. Tr. 25. At step two, the ALJ found that

Freddette’s anxiety disorder, mood disorder, and asthma

qualified as severe impairments. Tr. 25. At step three, the

5 ALJ determined that none of Freddette’s impairments, considered

individually or in combination, qualified for any impairment

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 26;

see

(d), 404.1525, 404.1526.

The ALJ then found that Freddette had the residual

functional capacity (“RFC”) to perform work at all exertional

levels, with the non-exertional limitations of doing “work that

is routine day to day, with simple tasks, training by

demonstration, and few, if any, changes” and no “contact with

the general public or tandem tasks.” Tr. 27-28. The ALJ also

added the limitation that Freddette could not be exposed to

potential irritants or poorly ventilated areas. Tr. 28.

In making the RFC determination, the ALJ concluded that

Freddette’s “statements concerning the intensity, persistence

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

consistent with the medical evidence and other evidence in the

record.” Tr. 29. The ALJ considered Freddette’s daily

activities and found that Freddette lived alone with her four-

year-old son, who was hyperactive and had speech problems; cared

for her son, including by preparing simple meals, bathing him,

reading to him, taking him outside to play “here and there,” and

playing Legos with him; used public transportation; performed

household chores such as cleaning, organizing, and doing

laundry; helped a friend by doing her dishes and cleaning her

6 house; and attended to her personal care needs. Tr. 28-29, 32.

Although Freddette reported relying on her mother for

assistance, the ALJ noted that they communicated mostly by phone

because her mother initially lived three hours away from

Freddette and later moved to Florida. Tr. 28.

Regarding Freddette’s asthma, the ALJ credited treatment

notes stating that the condition was well controlled with

medication. Tr. 29. In terms of her anxiety and mood

disorders, the ALJ noted that “mental status findings have

remained relatively benign, with no evidence of the severe

deficits” that Freddette described. Tr. 29. According to the

ALJ, Freddette’s mental health issues “appear largely caused by

situational stressors including financial worries, parenting

challenges with a four-year-old son with behavioral issues,

social isolation and unemployment.” Tr. 29.

The ALJ reviewed the medical opinions in the record and

gave “great weight” to Dr. Gitlow’s opinion because she found it

well supported by the objective medical evidence. The ALJ also

noted that Dr. Gitlow had reviewed all the evidence, was

familiar with the SSA’s regulations regarding disability

determination, and was a highly qualified specialist who

testified about issues in his area of specialty. Tr. 31-32.

7 The ALJ gave “substantial weight” to Dr. Warren’s opinion.

She reasoned that his opinion was “not inconsistent with the

medical evidence as a whole.” Tr. 33.

The ALJ effectively adopted Dr. Griffin’s opinion that

Freddette could not understand complex instructions or complete

complex tasks by limiting Freddette’s RFC to simple tasks and

training by demonstration. But the ALJ gave “very little

weight” to Dr. Griffin’s opinion that Freddette could not adhere

to a regular work schedule, interact appropriately at work, or

make work-related decisions. The ALJ reasoned that those

limitations were inconsistent with Dr. Gitlow’s opinion and

“rely in large part on [Freddette’s] subjective complaints,

rather than on clinical findings.” Tr. 32.

Relying on the testimony of a vocational expert, the ALJ

found at step four that Freddette could performing her past

relevant work as a commercial cleaner. Tr. 33. In the

alternative, the ALJ found at step five that there were other

jobs that existed in significant numbers in the national economy

that Freddette could perform. Tr. 33-34. Accordingly, the ALJ

concluded that Freddette had not been disabled from the alleged

onset date through the date of her decision. Tr. 35.

II. STANDARD OF REVIEW

I am authorized to review the pleadings submitted by the

parties and the administrative record and enter a judgment

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

Commissioner. See

(g). That review is limited,

however, “to determining whether the [Commissioner] 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 Commissioner’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 [her] 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 Commissioner’s factual findings are supported by

substantial evidence, they are conclusive, even where the record

“arguably could support a different conclusion.” Id. at 770.

The Commissioner’s findings are not conclusive, however, “when

derived by ignoring evidence, misapplying the law, or judging

matters entrusted to experts.” Nguyen v. Chater,

(1st Cir. 1999) (per curiam). “Issues of credibility and the

drawing of permissible inference from evidentiary facts are the

prime responsibility of the Commissioner, and the resolution of

conflicts in the evidence and the determination of the ultimate

question of disability is for her, not for the doctors or for

9 the courts.” Purdy v. Berryhill,

(1st Cir. 2018)

(internal quotation marks and brackets omitted).

III. ANALYSIS

Freddette alleges two errors with the ALJ’s RFC

determination that purportedly warrant reversal. She first

argues that the ALJ erroneously evaluated the medical opinions

of Drs. Griffin, Gitlow, and Warren. She then contends that the

ALJ erred in evaluating her subjective complaints. I address,

and reject, each argument in turn.

A. Weight Given to Medical Opinion Evidence

Freddette asserts that the ALJ improperly evaluated the

medical opinion evidence in determining her RFC. Because

substantial evidence supports the ALJ’s evaluation and her one

error was harmless, Freddette cannot sustain her burden of

establishing that remand is necessary.

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

despite [her] limitations.”

(a)(1). It

must be crafted by an ALJ based on all relevant evidence in the

record.

In so doing, the ALJ “must consider limitations

and restrictions imposed by all of an individual’s impairments,

even those that are not ‘severe.’” Stephenson v. Halter,

,

, at *2 (D.N.H. Aug. 20, 2011) (quoting

Social Security Ruling (“SSR”) 96-8p,

, at *5

(July 2, 1996)). This is typically done by “piec[ing] together

10 the relevant medical facts from the findings and opinions of

multiple physicians,” Evangelista v. Sec’y of Health & Human

Servs.,

(1st Cir. 1987), but may sometimes

incorporate “common-sense judgments about functional capacity”

based upon those findings. Gordils v. Sec’y of Health & Human

Servs.,

(1st Cir. 1990). The ALJ’s written

decision, however, need not specifically address every

individual piece of evidence in the record where it would be

cumulative or unhelpful to the claimant’s position. See Grenier

v. Colvin,

,

, at *2 (D.N.H. July 2,

2015); Lord v. Apfel,

(D.N.H. 2000); see

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

,

(1st Cir. 1990) (per curiam, table

decision) (“An ALJ is not required to expressly refer to each

document in the record, piece-by-piece.”)

An ALJ must consider “medical opinions” provided by both

treating and nontreating “acceptable medical sources,” “together

with the rest of the relevant evidence.”

(a)-(b), 416.927(a)-(b); see SSR 96-8p,

,

at *7. In addition, the ALJ must address such an opinion and –

if it conflicts with the RFC finding – must explain why it was

not adopted. SSR 96-8p,

, at *7.

The applicable regulations define “medical opinions” as

“statements from acceptable medical sources that reflect

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

impairment(s), including [her] symptoms, diagnosis and

prognosis, what [she] can still do despite impairment(s), and

[her] physical or mental restrictions.”

(a)(2), 416.927(a)(2). A doctor’s recording of a

claimant’s “complaints in his notes does not convert [those]

subjective complaints . . . into medical opinion, thus entitling

[them] to some measure of deference.” Ford v. Barnhart,

,

, at *8 (D.N.H. July 7, 2005).

Similarly, “subjective complaints are not entitled to greater

weight simply because they appear in [a] physician’s notes.”

An ALJ is generally required to “give more weight to the

opinion of a source who has examined [a claimant] than to the

medical opinion of a medical source who has not examined [her].”

(c)(1), 416.927(c)(1). “However, just as

an ALJ may properly decline to give controlling weight to the

opinion of a treating source, an ALJ may also discount the

weight given to the opinion of an examining source in favor of

the opinion of a nonexamining source.” Downs v. Colvin,

,

, at *8 (D.N.H. June 8, 2015) (internal

citations omitted).

When determining the weight to give to a medical opinion,

an ALJ must consider, inter alia, the nature of the relationship

12 between the medical source and the claimant, the supportability

of the opinion, the consistency of the opinion with the record

as a whole, and whether the source of the opinion is a

specialist. See

(c), 416.927(c).

Regarding supportability, the regulations explain:

The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion. The better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion. Furthermore, because nonexamining sources have no examining or treating relationship with [a claimant], the weight we will give their medical opinions will depend on the degree to which they provide supporting explanations for their medical opinions. We will evaluate the degree to which these medical opinions consider all of the pertinent evidence in [a] claim, including medical opinions of treating and other examining sources.

(c)(3), 416.927(c)(3).

Here, the ALJ gave “very little weight” to the opinion of

consultative examiner Dr. Griffin, “great weight” to the opinion

of Dr. Gitlow, a nonexamining medical expert, and “substantial

weight” to the opinion of Dr. Warren, a nonexamining state

agency psychologist. I address each in turn.

1. Dr. Griffin’s Opinion

Dr. Griffin performed a consultative “Intelligence Profile”

examination of Freddette at the Commissioner’s request. The ALJ

gave “very little weight” to Dr. Griffin’s opinion that

Freddette’s intellectual limitations and unmanaged psychiatric

13 symptoms rendered her incapable of adhering to a regular work

schedule, maintaining appropriate interactions with others at

work, or making work-related decisions. Tr. 32; see Tr. 688.

The ALJ reasoned that those limitations were inconsistent with

Dr. Gitlow’s opinion and “rely in large part on [Freddette’s]

subjective complaints, rather than on clinical findings.” Tr.

32. The ALJ’s finding is supported by evidence that is

“adequate” to persuade “a reasonable mind.” See Irlanda Ortiz,

(internal quotation marks omitted).

The ALJ was entitled to credit Dr. Gitlow’s opinion over

Dr. Griffin’s. Dr. Gitlow disagreed with Dr. Griffin’s severe

limitations. He reasoned that Freddette’s personality disorder

and intellectual functioning “have been the same, virtually,

throughout her adult life.” Tr. 50. Despite those

dysfunctions, she worked for one employer for 10 years and

another employer for 2-3 years, demonstrating good adaptive

functioning. Tr. 50, 53.

Similarly, Dr. Gitlow was unpersuaded that Freddette’s

anxiety and mood disorder were severe enough to support Dr.

Griffin’s opinion. He explained that Freddette had “a good

response” to treatment and showed no signs of deficits during

Dr. Griffin’s exam. Tr. 51, 53. Specifically, Freddette’s mood

was neutral, her affect was stable and appropriate to the

circumstances, her speech was normal, and she was pleasant and

14 cooperative. Dr. Gitlow concluded that such “presentation is

not consistent with an impairing level of disease.” Tr. 53-54.

Finally, Dr. Gitlow rejected Dr. Griffin’s opinion that

Freddette would be incapable of maintaining appropriate social

interactions at work. That conclusion, he reasoned, was

inconsistent with Dr. Griffin’s observations that Freddette

interacted well during the examination. Tr. 54-55. According

to Dr. Gitlow, Freddette would not do well with a significant

number of colleagues or critical supervisors but would be suited

for “individual type of work place where she’s not involved in

significant customer or peer contact.” Tr. 54.

Conflicts in the evidence, such as the difference of

opinion between Dr. Gitlow and Dr. Griffin, are for the

Commissioner to resolve. See Irlanda Ortiz,

.

Dr. Gitlow offered a detailed and persuasive explanation for his

opinion, which bolsters its supportability. See

(c)(3), 416.927(c)(3). The ALJ noted that Dr. Gitlow’s

opinion was well-supported by the record and that he reviewed

all record evidence. By contrast, Dr. Griffin had the benefit

of only a handful of records. Finally, the ALJ stated that Dr.

Gitlow was a highly qualified specialist who testified about

issues related to his area of specialty and was knowledgeable

about the SSA’s disability determinations. Adjudicators are

entitled to rely on such findings to credit opinion evidence.

15 See, e.g.,

(c), 416.927(c). Accordingly,

the fact that Dr. Griffin examined Freddette and Dr. Gitlow did

not is insufficient to challenge the ALJ’s weighing of their

opinions. See Downs,

, at *8. 3

The ALJ’s decision to discount Dr. Griffin’s opinion as

based largely on Freddette’s subjective complaints is likewise

supported by substantial evidence. Although Freddette correctly

notes that Dr. Griffin’s report reflects a number of clinical

observations summarized above, which the ALJ acknowledged in her

decision, see Tr. 32, it also frequently relies on Freddette’s

own statements. See Tr. 681-88. In addition, the limited

written evidence that Dr. Griffin reviewed consisted almost

entirely of Freddette’s subjective complaints. See Tr. 686

(listing SSA function report that Freddette filled out and two

intake summaries from Community Partners as evidence reviewed);

see also Tr. 263-70 (function report); Tr. 319-45 (intake

summaries). As discussed below, the ALJ supportably found that

Freddette’s subjective complaints were not entirely consistent

3 The decision in Hainey v. Colvin, upon which Freddette relies, is distinguishable. There, the ALJ failed to adequately explain his decision to give more weight to the opinions of nonexamining medical sources than those of examining sources. See

,

, at *6 (D.N.H. Dec. 5, 2014). Further, the nonexamining sources did not address the claimant’s seemingly significant cognitive limitations and they did not review a conflicting opinion of one examining source, rendering their opinions “somewhat incomplete and less persuasive.”

at *6 & n.4. 16 with the evidence in the record. Those subjective complaints

are not entitled to deference simply because they appear in Dr.

Griffin’s report. See Downs,

, at *7; Ford,

, at *8. Accordingly, I find no error in the ALJ’s

decision to give “very little weight” to Dr. Griffin’s opinion

and “great weight” to Dr. Gitlow’s opinion.

2. Dr. Gitlow’s Opinion

Freddette faults the ALJ for failing to include in the RFC

finding a limitation consistent with Dr. Gitlow’s opinion that

she could only interact with a “[l]imited number of people” at

work if “the same people . . . are there day-to-day.” Tr. 55-

56. Despite giving Dr. Gitlow’s opinion “great weight,” the ALJ

did not expressly address this limitation. The Commissioner

argues that the RFC finding is still sufficient because the ALJ

limited Freddette to jobs that entailed “few, if any, changes”

and required neither any “contact with the general public” nor

any “tandem tasks.” See Tr. 33. Alternatively, the

Commissioner maintains that the omission is a harmless error

because Freddette’s past relevant work and the other jobs the

vocational expert identified all have the lowest-possible rating

for social interaction, which accommodates Dr. Gitlow’s opinion.

The RFC finding does not account for general interaction

with coworkers. I agree with the Commissioner that limiting

Freddette to jobs that entailed “few, if any changes” includes

17 changes to the people who are at work and thus incorporates Dr.

Gitlow’s opinion about Freddette’s need to work with the same

people. But precluding contact with the public does not

accommodate the limitation on coworker interactions.

The ALJ seemingly sought to address this restriction by

excluding “tandem tasks,” which presumably involve collaborative

interaction with coworkers. No medical opinion in the record

used that term, however, and the parties have not cited a

pertinent source that defines it. Accordingly, I cannot

determine from this record whether a bar on tandem tasks could

in fact be equated with Dr. Gitlow’s limitation on workplace

interactions. 4

A remand on this basis is not warranted, however, because

the ALJ’s error is harmless. Courts routinely find harmless

error “where an alleged limitation that was not included in the

ALJ’s hypothetical (or in the RFC) was not necessary to perform

one or more of the jobs identified by the [vocational expert],

according to the [Dictionary of Occupational Titles].” Rochek

v. Colvin, No. 2:12-CV-01307,

, at *12 (W.D. Pa.

Aug. 23, 2013) (collecting cases). The ALJ ultimately found

4 I reject the Commissioner’s invitation to conclude that the ALJ discounted Dr. Gitlow’s opinion on this matter in favor of Dr. Warren’s, which does not include a similar limitation. The ALJ generally gave more weight to Dr. Gitlow’s opinion than Dr. Warren’s, and the RFC finding is otherwise more consistent with the former than the latter. 18 that Freddette was not disabled by relying on the vocational

expert’s testimony that a person with Freddette’s RFC could

perform her past relevant work as a commercial cleaner and three

other jobs. The Dictionary of Occupational Titles (“DOT”)

assigns the lowest-possible rating for social interaction

(“people” code) to each of those jobs and provides that social

interaction is “Not Significant” in any of them. See DOT §

381.687-014,

(commercial cleaner); DOT § 920.687-

126,

(marker II); DOT § 921.685-046,

(fruit distributor); DOT § 712.687-010,

(assembler, plastic hospital products). Numerous courts have

found jobs with that rating appropriate for claimants with RFC

specifying limited coworker contact because such jobs involve

workplace interactions that are only “occasional,” “brief” and

“superficial.” See Sweeney v. Colvin, No. 3:13-cv-02233,

, at *17 (M.D. Pa. Aug. 28, 2014) (collecting cases).

Because the ALJ identified jobs that Freddette could

perform even if Dr. Gitlow’s limitation were imported, the error

in failing to assess it was harmless.

3. Dr. Warren’s Opinion

Freddette argues that the ALJ’s decision to give

“substantial weight” to the opinion of state agency psychologist

Dr. Warren is not supported by substantial evidence. This is

because, she asserts, Dr. Warren “fail[ed] to evaluate the

19 opinion evidence from Dr. Griffin’s consultative examination,”

as evidenced by his statement that there was no medical or other

opinion evidence in the record. See Doc. No 8-1 at 7. This

challenge is meritless.

Dr. Warren explicitly and repeatedly indicated that he had

evaluated Dr. Griffin’s report. See Tr. 102 (listing Dr.

Griffin’s report as first item in list of evidence of record);

Tr. 105 (citing Dr. Griffin’s report as “Psych CE” and noting

that it “[s]hows B[orderline] I[intelligence] F[unctioning] and

G[eneralized] A[nxiety] D[isorder]”); Tr. 106 (noting “[r]ecent

mental CE suggests borderline intelligence”). The fact that Dr.

Warren did not list Dr. Griffin’s report as opinion evidence or

discuss it at length does not mean that he failed to consider

it. To the extent Freddette argues that Dr. Warren was required

to expressly reconcile his opinion with Dr. Griffin’s, she cites

no authority to support that proposition, and I have found none.

Because Dr. Warren’s opinion is supported by substantial

evidence, including relatively benign mental status findings and

evidence of Freddette’s daily activities, the ALJ properly

assigned it substantial weight.

B. Subjective Symptom Evaluation

Freddette also argues that the ALJ’s RFC determination

cannot stand because the ALJ did not properly evaluate her

subjective complaints. I find that the ALJ supportably

20 discounted Freddette’s subjective reports regarding the

intensity, persistence, and limiting effects of her symptoms as

“not entirely consistent with the medical evidence and other

evidence in the record.” Tr. 29.

In crafting a claimant’s RFC, an ALJ must consider all of a

claimant’s alleged symptoms and determine the extent to which

those symptoms can reasonably be accepted as consistent with

objective medical evidence and other record evidence.

(a), 416.929(a); SSR 16-3p,

, at *2

(Mar. 16, 2016). This involves a two-step inquiry. First, the

ALJ must determine whether the claimant has a “medically

determinable impairment” that could reasonably be expected to

produce her alleged symptoms. SSR 16-3p,

, at

*3. Second, the ALJ evaluates the “intensity, persistence, and

limiting effects of [those] symptoms” to determine how they

limit the claimant’s ability to perform work-related activities.

Id. at *4. The ALJ must “examine the entire case record” in

conducting this evaluation, including objective medical

evidence, the claimant’s own statements and subjective

complaints, and any other relevant statements or information in

the record. Id.; see Coskery v. Berryhill,

(1st

Cir. 2018) (quoting SSR 16–3p,

(Oct. 25,

2017)) (republished without substantial change).

21 When a claimant’s statements are inconsistent with

objective medical evidence, an ALJ must evaluate the veracity of

the claimant’s descriptions of the intensity, persistence, and

limiting effects of her symptoms. See Floyd v. Berryhill,

,

, at *5 (D.N.H. June 21, 2017); SSR 16-

3p,

, at *4. The ALJ cannot reject the veracity

of the claimant’s own statements, however, solely because they

are unsubstantiated by objective medical evidence.

(c)(2), 416.929(c)(2); see Clavette v. Astrue, No. 10-

cv-580,

, at *9 (D.N.H. Feb 7, 2012), R. & R.

adopted,

(D.N.H. Feb. 13, 2012); Valiquette v.

Astrue,

(D. Mass. 2007). Rather, an

inconsistency between subjective complaints and objective

medical evidence is just “one of the many factors” to consider

in weighing the claimant’s statements. SSR 16-3p,

, at *5; see Makuch v. Halter,

(D. Mass. 2001). 5

5 The principle that an ALJ may not rest a negative credibility assessment solely on the lack of corroborating objective medical evidence was developed under application of SSR 96-7p. See, e.g., Makuch, 170 F. Supp. 2d. at 126-127; Ault v. Astrue,

,

, at *5 (D.N.H. Jan. 10, 2012). This ruling has since been replaced by SSR 16-3p. See Coskery,

; SSR 16-3p,

, at *1. SSR 96-7p had been construed to only require an ALJ to assess a claimant’s “credibility” in the event her subjective statements were unsubstantiated by the objective medical record. See Guziewicz v. Astrue,

,

, at *6 (D.N.H. Jan. 14, 2011). Therefore, it was deemed legal error for an ALJ 22 Other factors the ALJ must consider, known as the “Avery

factors” in the First Circuit, include (1) the claimant’s daily

activities;(2) the location, duration, frequency, and intensity

of the pain or symptom; (3) any precipitating and aggravating

factors; (4) the effectiveness of any medication currently or

previously taken; (5) the effectiveness of non-medicinal

treatment; (6) any other self-directed measures used to relieve

pain; and (7) any other factors concerning functional

limitations or restrictions. See

(c)(3),

416.929(c)(3); see also Childers v. Colvin,

,

, at *5 (D.N.H. July 17, 2015) (citing Avery v. Sec’y

of Health & Human Servs.,

(1st Cir. 1986)). But

the ALJ is not required to address every Avery factor in her

written decision for her evaluation to be supported by

substantial evidence. Ault,

, at *5. Instead, the

decision need only “contain specific reasons for the weight

to discredit a claimant’s statements solely for lacking corroborating objective evidence. See, e.g., Clavette,

, at *9. In enacting SSR 16-3p to replace SSR 96-7p, the SSA primarily sought to “eliminate the use of the term ‘credibility’ from the sub-regulatory policy to make clear that a subjective symptom evaluation is not an examination of an individual’s character.” Coskery,

(citing SSR 16- 3p, 82 Fed. Reg. at 49463 & n.1) (internal quotation marks and brackets omitted); SSR 16-3p,

, at *1 n.1. Despite that change, SSR 16-3p is materially the same as its predecessor, and it explicitly precludes an ALJ from “evaluat[ing] an individual’s symptoms based solely on objective medical evidence.” See SSR 16-3p,

, at *4. 23 given to the individual’s symptoms, be consistent with and

supported by the evidence, and be clearly articulated so the

individual and any subsequent reviewer can assess how the

adjudicator evaluated the individual’s symptoms.” SSR 16-3p,

, at *9 (emphasis added); see Anderson v. Colvin,

,

, at *7 (D.N.H. Nov. 4, 2014).

Here, the ALJ sufficiently explained her decision to credit

Freddette’s subjective complaints “only to the extent they can

reasonably be accepted as consistent with the objective medical

and other evidence.” Tr. 29. For example, the ALJ noted that

Freddette had a good response to treatment. Tr. 28, 29, 30.

She also stated that Freddette’s daily functioning undermined

her subjective claims of fully debilitating symptoms.

Specifically, the ALJ noted that Freddette lived independently

with her four-year-old son who had behavioral problems; cared

for him by preparing simple meals, bathing him, reading to him,

playing Legos with him, and occasionally taking him outside to

play; used public transportation; performed household chores

such as cleaning, organizing, and doing laundry; helped a friend

by doing her dishes and cleaning her house; and attended to her

personal care needs. Tr. 28-29, 32. Such an explanation

provides a sufficiently specific reason for the weight given to

Freddette’s testimony. Cf. Teixeira v. Astrue,

(D. Mass. 2010) (“While a claimant’s performance of

24 household chores or the like ought not be equated to an ability

to participate effectively in the workforce, evidence of daily

activities can be used to support a negative credibility

finding.”).

In addition, the ALJ noted that during her consultative

examination with Dr. Griffin, Freddette completed intake

paperwork independently (albeit slowly) and “was able to follow

along with the natural flow of the examination.” Tr. 26. The

ALJ also observed that Freddette was able to respond

appropriately when spoken to and initiate conversation and was

pleasant and responsive to questioning during the hearing. Tr.

26. The ALJ’s observations support her decision to discount

Freddette’s statements that endorse a higher degree of

impairment. See Perez v. Sec’y of Health & Human Servs.,

(1st Cir. 1991) (ALJ properly relied on his

“observation of claimant’s demeanor at the hearing” when

discounting claimant’s subjective complaints).

The ALJ also considered Freddette’s past work history and

noted that despite her professed difficulty getting along with

coworkers and supervisors, she worked at one facility for 10

years and at another for 2-3 years. Tr. 29, 30. In fact,

Freddette testified that on several occasions she stopped

working for reasons unrelated to her mental health conditions.

See Tr. 65 (testifying that her pregnancy and her employer’s

25 decision to reduce her hours explained why she stopped one job);

Tr. 67 (testifying that she was fired from another job for

working unauthorized overtime). The ALJ was entitled to rely on

the inconsistency between Freddette’s past work record and her

statements that she could not work to discount her testimony.

See Lewis v. Berryhill,

, 662 (9th Cir. 2018)

(ALJ properly rejected claimant’s testimony in part based on

“inconsistencies between [claimant’s] testimony and her ability

to work in the past despite her limitations”); Bruton v.

Massanari,

(9th Cir. 2001) (ALJ properly

considered claimant’s stated reasons for leaving past work in

discrediting claimant’s testimony).

In terms of precipitating and aggravating factors, the ALJ

found that Freddette’s conditions were largely caused by

situational stressors, including financial concerns, parenting

challenges, social isolation, and unemployment. Tr. 29. An ALJ

may consider whether a claimant’s symptoms result from temporary

situational stressors in discounting her subjective complaints.

See West v. Berryhill, No. 17-1170,

, at *1 (1st

Cir. Dec. 11, 2017) (noting that ALJ’s RFC determination was

supported by “evidence that temporary situational factors

contributed to heightened symptoms”); Chesler v. Colvin,

(9th Cir. 2016) (symptom testimony properly

rejected in part because “the record support[ed] the ALJ’s

26 conclusion that [claimant’s] mental health symptoms were

situational”). 6

In sum, the ALJ provided specific reasons, supported by

substantial evidence, to discount Freddette’s subjective

complaints. Her finding is entitled to deference.

IV. CONCLUSION

Pursuant to sentence four of

(g), I grant

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

deny Freddette’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

January 7, 2019

cc: Robert J. Rabuck, Esq. D. Lance Tillinghast, Esq.

6 Freddette states that the treatment notes the ALJ cited describe her situational stressors as “risk factors” as opposed to “causes” of her mental health impairments. She does not explain the relevance of this distinction, let alone cite any supporting authority. To the extent there is a meaningful difference, it suffices to say that the treatment notes state that Freddette’s anxiety was “related to” one of those stressors, supporting the ALJ’s characterization of the record. See Tr. 808, 810. 27