UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cynthia M. Dore

v. Case No. 18-cv-950-PB Opinion No.

Andrew Saul, Commissioner Social Security Administration

MEMORANDUM AND ORDER

Cynthia Dore challenges the denial of her applications for

disability insurance benefits and supplemental security income

pursuant to

(g). She contends that the

Administrative Law Judge (“ALJ”) improperly evaluated medical

opinions in her record. The Commissioner, in turn, moves for an

order affirming the ALJ’s decision. I deny Dore’s motion and

affirm the Commissioner’s decision.

I. BACKGROUND

A. Procedural Facts

Dore is a 64-year-old woman with 11th grade education. She

worked a variety of jobs in the retail industry, including as a

retail manager and a convenience store cashier. She alleged

disability as of November 2014, due to degenerative disc disease

of the spine, anxiety disorder, and depressive disorder.

Dore’s applications were initially denied in October 2015,

and on reconsideration in February 2016. On November 2, 2017,

she testified at a hearing before ALJ Paul Martin, who ultimately denied Dore’s claims. See Tr. 18-32. The Appeals

Council denied her request for review in August 2018, rendering

the ALJ’s decision the final decision of the Commissioner. See

Tr. 7-9. Dore now appeals.

B. Medical Opinion Evidence

In September 2015, Dr. Robert Phelps, an orthopedic

surgeon, performed a consultative examination of Dore. She

exhibited impaired ability to perform postural changes, abnormal

posture with elevation of the left shoulder and the left pelvis,

limited range of motion of the lumbosacral spine, increased left

leg pain with lumbar flexion, left thigh pain with strength

testing on the left, sensory impairment of the left foot,

impaired sharp-dull discrimination of the right foot, and

increased low-back pain with straight leg raising on the left.

Dr. Phelps diagnosed her with neck pain, left upper extremity

weakness, ruptured discs in the lower back, mobility impairment

with degenerative disc disease, and a right thoracic left lumbar

scoliosis. He opined that Dore had markedly limited abilities

to lift and carry even occasionally, stand, walk, and push or

pull at the left lower extremity, as well as markedly to

severely limited abilities to bend, climb, balance, stoop,

kneel, crouch, and crawl. Tr. 342.

The following month, Dr. Donald Trumbull, a state agency

physician, reviewed Dore’s record, including Dr. Phelps’ report.

2 He opined that Dore’s degenerative disc disease was a severe

impairment, but that she retained the residual functional

capacity (“RFC”) to perform the requirements of light work.

Specifically, she could lift 20 pounds occasionally and 10

pounds frequently, stand or walk for 6 hours, and sit for 6

hours in an 8-hour workday. Dr. Trumbull also indicated that

Dore was limited to frequent stooping and climbing of ramps or

stairs and occasional kneeling, crouching, crawling, and

climbing of ladders, ropes, or scaffolds. Tr. 44-46.

In February 2016, another state agency physician, Dr.

Sharon Hogan, reviewed the medical record and likewise opined

that Dore could perform light work. According to Dr. Hogan,

Dore was limited to occasional balancing, stooping, kneeling,

crouching, crawling, and climbing of ramps, stairs, ladders,

ropes, or scaffolds. Tr. 69-71.

Orthopedic surgeon Dr. Frank Graf examined Dore and

reviewed her medical records in July 2017. He diagnosed her

with chronic lumbosacral musculoskeletal pain with left lower

extremity radiculopathy in an L5 dermatomal pattern, as well as

sensory and motor system disorder with abnormal cranial nerve

examination and abnormal reflex activity. Dore reported

frequent falls due to loss of coordination and balance. Dr.

Graf opined that her pain symptoms would constantly interfere

with the attention and concentration needed to perform even

3 simple work tasks. According to Dr. Graf, Dore was limited to

less than 2 hours of sitting, standing, or walking in an 8-hour

workday, could stand only for 5 minutes and sit for 10 minutes

at a time, would require the ability to shift positions at will

and frequent unscheduled breaks, was advised to use a cane, was

not capable of lifting more than 10 pounds, and was likely to

miss more than 4 days of work every month. Tr. 739-47.

On November 2, 2017, Dr. John Kwock, an orthopedic surgeon,

testified at the administrative hearing after reviewing Dore’s

medical file, including all the opinion evidence. Dr. Kwock

opined that Dore had degenerative disc disease of the cervical,

lumbar, and thoracic spine, but that these impairments did not

meet or equal the criteria of any listed impairment. According

to Dr. Kwock, Dore retained the capacity to perform light work,

that is, she could lift and carry 20 pounds occasionally and 10

pounds frequently, sit for 6 hours, and stand or walk for 6

hours in an 8-hour workday. He further testified that she could

frequently balance and kneel, occasionally stoop, crouch, and

climb stairs or ramps, and could never crawl or climb ladders or

scaffolds. Tr. 897-900.

Dr. Kwock dismissed greater restrictions to Dore’s RFC as

based on subjective reporting that was not consistent with

imaging results and other objective medical evidence.

Specifically, he disagreed with Dr. Graf’s opinion because the

4 imaging studies in the record, including cervical and lumbar

spine X-rays done in June and August 2014 and MRIs done in May

2015 and August 2017, indicated that Dore’s degenerative changes

remained generally mild. Although the 2017 MRI included a

finding of chronic severe degenerative disc disease at L5-S1,

Dr. Kwock explained that there was no significant spinal

stenosis and no significant disc herniation. Dr. Kwock

acknowledged that there were positive examination findings in

the record, such as reduced range of motion, slow gait, positive

straight leg raise, decreased sensation, muscle weakness, and

hyperactive reflexes. But he noted that those findings were not

consistent from one exam to the next and that the record also

reflected many negative findings in those same areas. Finally,

Dr. Kwock testified that Dore’s use of a cane was not medically

necessary given general findings of no significant motor

weakness in her upper or lower extremities. Tr. 901-11.

C. The ALJ’s Decision

The ALJ assessed Dore’s claim under the five-step,

sequential analysis required by

and

416.920. At step one, he found that Dore had not engaged in

substantial gainful activity since November 26, 2014, her

alleged disability onset date. Tr. 21. At step two, the ALJ

found that Dore’s degenerative disc disease of the spine was a

severe impairment, but that her anxiety disorder and depressive

5 disorder were not severe. Tr. 21-23. At step three, the ALJ

determined that none of Dore’s impairments, considered

individually or in combination, qualified for any impairment

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 23-24.

The ALJ then found that Dore had the RFC to perform light

work as defined in

(b) and 416.967(b),

except that she was limited to simple, unskilled work. In

addition, she could sit for 6 hours, stand or walk for 6 hours,

climb ramps and stairs occasionally, crouch and stoop

occasionally, balance and kneel frequently, and could never

crawl or climb ropes or scaffolding. Tr. 24.

The ALJ gave “great weight” to Dr. Kwock’s reviewing

opinion, finding it well reasoned and consistent with the

medical record, including imaging studies and normal motor

strength findings. Tr. 27-28. He likewise gave “great weight”

to the opinions of non-examining state agency consultants Drs.

Trumbull and Hogan. According to the ALJ, their opinions were

consistent with the record as a whole, and subsequent treatment

notes did not show a worsening of Dore’s condition. Tr. 28-29.

The ALJ assigned “little weight” to Dr. Graf’s opinion,

finding that the limitations he identified were “not fully

consistent with the medical evidence of record” and

“inconsistent with the claimant’s stated activities of daily

living and her treatment plan.” Tr. 29-30. The ALJ also noted

6 that he was satisfied with Dr. Kwock’s explanation as to why Dr.

Graf’s opinion was not well supported by the objective testing.

Tr. 28. Lastly, the ALJ gave “little weight” to Dr. Phelps’

opinion, finding that it was “inconsistent with the results of

the physical examination he performed,” which identified “few

motor strength abnormalities.” Tr. 30-31.

Relying on the testimony of a vocational expert, the ALJ

then found at step four that Dore could perform her past

relevant work as a cashier. Tr. 31-32. Accordingly, the ALJ

concluded that Dore had not been disabled from the alleged

disability onset date through the date of his decision. Tr. 32.

II. 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

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 his conclusion.”

7 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 [him], not for the doctors or for

the courts.” Purdy v. Berryhill,

(1st Cir. 2018)

(internal quotation marks and brackets omitted).

III. ANALYSIS

Dore challenges the ALJ’s decision on the ground that the

ALJ improperly weighed the medical opinion evidence. Because

substantial evidence supports the ALJ’s evaluation of those

opinions, Dore cannot sustain her burden of establishing that

remand is necessary.

An ALJ must consider “medical opinions” provided by both

treating and nontreating “acceptable medical sources,” “together

8 with the rest of the relevant evidence.”

(a)-(b), 416.927(a)-(b); see Social Security Ruling

(“SSR”) 96-8p,

, at *7 (July 2, 1996). In

addition, the ALJ must address each medical opinion and – if it

conflicts with the RFC finding – must explain why it was not

adopted. SSR 96-8p,

, at *7.

The regulations define “medical opinions” as “statements

from acceptable medical sources that reflect 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)(1), 416.927(a)(1).

When weighing a medical opinion, an ALJ must consider, inter

alia, the nature of the relationship 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

§§ 404.1527(c), 416.927(c).

An ALJ is generally required to give more weight to the

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

opinion of a nonexamining source. Id. §§ 404.1527(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

9 examining source in favor of the opinion of a nonexamining

source.” Wall v. Berryhill,

,

, at

*4 (D.N.H. June 27, 2019) (internal quotation marks omitted).

Here, the ALJ gave “great weight” to the reviewing opinions

Drs. Kwock, Trumbull, and Hogan, and “little weight” to the

opinions of one-time examining consultants Drs. Graf and Phelps.

I address each in turn.

1. Dr. Kwock’s Opinion

Dr. Kwock testified at the administrative hearing after

reviewing Dore’s medical file. The ALJ gave “great weight” to

Dr. Kwock’s opinion that Dore could perform light work, with

some postural limitations that the ALJ incorporated into the RFC

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

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

(internal quotation marks omitted).

The ALJ reasoned that Dr. Kwock is a specialist in

orthopedic surgery who reviewed the full evidence of record and

whose opinion was consistent with that record. Those are

permissible reasons for assigning great weight to the opinion.

See

(c)(4), 416.927(c)(4) (“Generally, the

more consistent a medical opinion is with the record as a whole,

the more weight we will give to that medical opinion.”);

§§ 404.1527(c)(5), 416.927(c)(5) (“We generally give more weight

to the medical opinion of a specialist about medical issues

10 related to his or her area of specialty than to the medical

opinion of a source who is not a specialist.”); id.

§§ 404.1527(c)(6), 416.927(c)(6) (“the extent to which a medical

source is familiar with the other information in [a claimant’s]

case record [is a] relevant factor[] that we will consider”).

Dr. Kwock also presented relevant evidence to support his

medical opinion that Dore could perform modified light work.

Cf. id. §§ 404.1527(c)(3), 416.927(c)(3) (“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.”). He explained that

the imaging studies, including the 2015 lumbar MRI and the 2017

lumbar MRI, indicated only a mild to moderate degenerative disc

disease. As a result, Dr. Kwock believed that Dore’s subjective

complaints could not be attributed to “anatomical changes or

physiological changes.” Tr. 904.

Further, as both Dr. Kwock and the ALJ recognized, although

there are positive examination findings in the record, such as

reduced range of motion, slow gait, positive straight leg raise,

decreased sensation, muscle weakness, and hyperactive reflexes,

those findings were not consistent from one exam to the next.

The record contains many intact findings, including full range

of motion of all joints, normal sensation, normal reflexes,

normal muscle strength, negative straight leg raise test, and

11 normal gait. See Tr. 26, 28, 30 (citing record sources). The

inconsistency in the examination findings and the mild

degenerative disc changes shown in the imaging studies support

the ALJ’s decision to credit Dr. Kwock’s opinion that Dore could

perform light work. Cf. Irlanda Ortiz,

(conflicts in the evidence are for the ALJ to resolve).

Dore criticizes the ALJ’s assessment because Dr. Kwock

based his opinion primarily on objective imaging and discounted

her subjective complaints. But the regulations do not require a

medical source to consider a claimant’s subjective symptoms.

Rather, it is the ALJ who has the responsibility to assess a

claimant’s RFC based on the entire record, including any

subjective complaints. See SSR 16-3p,

, at *3

(Mar. 16, 2016); Coskery v. Berryhill,

(1st Cir.

2018). The ALJ cannot disregard the claimant’s statements about

her symptoms solely because they are unsubstantiated by

objective medical evidence. See SSR 16-3p,

, at

*5. 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.

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)

12 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.

Avery v. Sec’y of Health & Human Servs.,

(1st

Cir. 1986); see

(c)(3), 416.929(c)(3). But

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

written decision for his evaluation to be supported by

substantial evidence. Deoliveira v. Berryhill,

,

, at *5 (D.N.H. Jan. 2, 2019). Instead, the

decision need only “contain specific reasons for the weight

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.

Here, the ALJ gave sufficiently specific reasons for

discounting Dore’s subjective complaints. First, the ALJ cited

the inconsistency between her complaints and the objective

medical evidence, discussed above. Cf. id. at *4 (“objective

medical evidence is a useful indicator to help make reasonable

conclusions about the intensity and persistence of symptoms”).

Second, the ALJ considered Dore’s daily activities, which

included handling personal care, cleaning, cooking, doing

13 laundry, and playing with her granddaughter. The ALJ

supportably concluded that this level of activity is consistent

with a capacity for light work. Cf. Coskery,

(permissible for ALJ to infer that claimant could perform light

work based on ability to do activities such as household chores,

personal care, dog care, and grocery shopping). Third, the ALJ

explained that Dore’s treatment plan was generally conservative,

involving physical therapy, home exercise, and pain management,

and that she had failed to follow through on some treatment

recommendations. 1 Cf. Bourque v. Berryhill,

,

, at *10 (D.N.H. July 23, 2018) (ALJ permissibly

concluded that “consistent, conservative courses of treatment

prescribed by medical professionals . . . does not conflict with

an RFC of light work”). Accordingly, the ALJ’s decision to

discount Dore’s subjective complaints is entitled to deference.

Because the ALJ properly considered Dore’s symptoms and

gave adequate reasons, supported by the record, for assigning

“great weight” to Dr. Kwock’s opinion, there was no error.

1 The ALJ noted that Dore had discontinued physical therapy in September 2017 after only three sessions. Tr. 27. She argues that the ALJ erroneously considered her noncompliance with treatment without exploring possible reasons for that noncompliance, as required by SSR 16-3p. Dore’s explanation that she stopped physical therapy because her provider told her to do so, however, is not consistent with the record. She was encouraged to switch her therapy to a different provider. Tr. 814. The ALJ was therefore entitled to consider her noncompliance as a factor in discounting her complaints. 14 2. Opinions of Drs. Trumbull and Hogan

Dore next faults the ALJ for giving “great weight” to the

opinions on two state agency reviewing physicians. Drs.

Trumbull and Hogan both opined that Dore could perform light

work, with some postural limitations. The ALJ reasoned that

their opinions were consistent with the record and with Dr.

Kwock’s opinion. Dore’s challenge to the ALJ’s reliance on

these opinions fails.

Dore argues that the ALJ improperly relied on the fact that

the opinions of Drs. Trumbull and Hogan were consistent with Dr.

Kwock’s opinion. But a consistency of a medical opinion with

other record evidence is among the factor that the regulations

expressly recognize as relevant when weighing opinion evidence.

See

(c)(4), 416.927(c)(4) (“Generally, the

more consistent a medical opinion is with the record as a whole,

the more weight we will give to that opinion.”).

In any event, the ALJ discussed other reasons for the

weight given to those opinions. Drs. Trumbull and Hogan

reviewed the available medical record, including Dore’s 2015 MRI

that showed only mild degenerative disc disease. The ALJ

supportably concluded that subsequent medical evidence,

discussed above, was consistent with the evidence they had

reviewed. See Byron v. Saul,

,

, at

*6 (D.N.H. Aug. 14, 2019) (ALJ may rely on medical opinion based

15 on incomplete record “where the medical evidence postdating the

reviewer’s assessment does not establish any greater

limitations, or where the medical reports of claimant’s treating

providers are arguably consistent with, or at least not clearly

inconsistent with, the reviewer’s assessment”) (internal

quotation marks omitted). Finally, the ALJ supportably found

that Dore’s daily activities, discussed above, were consistent

with the opinions finding that she could do light work.

Accordingly, there was no error in the ALJ’s weighing of the

state agency physicians’ opinions.

3. Dr. Graf’s Opinion

Dr. Graf is a one-time examining orthopedic surgeon who

opined that Dore’s postural limitations precluded even sedentary

work and that her pain and other symptoms rendered her incapable

of performing even low-stress jobs. The ALJ assigned “little

weight” to Dr. Graf’s opinion, finding that the limitations he

identified were not consistent with the medical record, Dore’s

daily activities, or her treatment plan. Substantial evidence

supports the ALJ’s assessment.

First, the ALJ pointed out that a week prior to Dr. Graf’s

examination, Dore had a full physical examination, which showed

normal gait and station, normal mobility in her neck and spine,

intact sensation, and 5/5 strength in the upper and lower

extremities. Tr. 30. Those findings were inconsistent with Dr.

16 Graf’s observations, including that Dore had difficulties

walking and standing, a decreased range of motion in her spine,

hyper-reflexivity, and sensory deficits.

The ALJ also

correctly noted that other examinations showed negative findings

in those areas and thus conflicted with Dr. Graf’s opinion. As

to Dr. Graf’s finding of hyper-reflexivity, the ALJ credited Dr.

Kwock’s opinion that such activity is unusual for Dore’s

impairment because degenerative disc disease typically causes

hypo-reflexive activity.

Such conflicts in the evidence

are for the ALJ to resolve and constitute permissible reasons to

discount Dr. Graf’s opinion. See Purdy,

.

Next, the ALJ reasoned that Dr. Graf’s opinion was

inconsistent with Dore’s daily activities. See Dimambro v. U.S.

Soc. Sec. Admin.,

,

, at *12 (D.N.H.

Jan. 5, 2018) (inconsistency with daily activities can be a

“good reason” to give an opinion less weight). Dr. Graf opined

that Dore had extreme limitations, including being able to stand

only for 5 minutes and sit only for 10 minutes at a time, but

she reported handling personal care, cleaning, cooking, doing

laundry, and playing with her granddaughter. In addition,

Dore’s treating providers encouraged her to exercise. See,

e.g., Tr. 803. Although Dore reported some restrictions in

those activities due to pain, they remain inconsistent with the

disabling limitations identified by Dr. Graf.

17 The ALJ also found Dr. Graf’s opinion inconsistent with

Dore’s conservative treatment and her non-compliance with

physical therapy. Finally, the ALJ noted that he was satisfied

with Dr. Kwock’s explanation as to why the opinion of Dr. Graf

was not well supported by the objective testing. Tr. 28, 30.

Adjudicators are entitled to rely on such findings to credit

opinion evidence. See

(c), 416.927(c).

4. Dr. Phelps’ Opinion

Dr. Phelps examined Dore on one occasion and opined that

she had numerous marked limitations, including in her abilities

to stand, walk, lift, and carry. The ALJ assigned “little

weight” to this opinion, reasoning that it was inconsistent with

Dr. Phelps’ own examination findings and with the record as a

whole. The ALJ’s assessment is entitled to deference.

The ALJ permissibly concluded that Dr. Phelps’ examination

findings did not show such extreme impairment. Although Dore

exhibited abnormal posture and reduced lumbar range of motion,

she had good range of motion in the cervical spine, upper

extremities, and lower extremities. In addition, Spurling’s

test was only mildly painful with moderate downward pressure;

her motor strength was generally intact; her reflexes were good;

and straight leg raise was negative on the right and caused back

pain, but no leg pain, on the left. Tr. 340-41. Dore maintains

that the ALJ did not consider all the examination findings and

18 relied too heavily on her intact motor strength. But Drs.

Trumbull, Hogan, and Kwock considered those examination findings

and found, consistent with the ALJ’s RFC, that Dore was not as

limited as Dr. Phelps opined.

The ALJ also permissibly concluded that Dr. Phelps’ opinion

was inconsistent with the record as a whole. As discussed

above, the ALJ thoroughly considered Dore’s record, including

the opinions of Drs. Kwock, Trumbull, and Hogan, the imaging

studies showing mild to moderate disease overall, the treatment

notes indicating many normal or only slightly abnormal findings,

recommendations for conservative treatment and noncompliance;

and Dore’s daily activities. The ALJ’s evaluation of Dr.

Phelps’ opinion is therefore supported by substantial evidence.

IV. CONCLUSION

Pursuant to sentence four of

(g), I grant

the Commissioner’s motion to affirm (Doc. No. 9) and deny Dore’s

motion for an order reversing the Commissioner’s decision (Doc.

No. 8). The clerk is directed to enter judgment accordingly and

close the case.

SO ORDERED. /s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

September 17, 2019

cc: D. Lance Tillinghast, Esq. Amy C. Bland, Esq.

19