UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Debra Ann James

v. Case No. 18-cv-396-PB Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Debra Ann James challenges the Social Security

Administration’s denial of her claim for Disability Insurance

Benefits. She contends that the Administrative Law Judge

(“ALJ”) did not support her decision with substantial evidence.

The Acting Commissioner, in turn, seeks an order affirming the

ALJ’s decision. Because the ALJ properly accounted for James’s

use of a cane and her mental impairments, and based her decision

on substantial evidence, I find no reversible error and affirm.

I. BACKGROUND

James is a 42-year-old wife and mother. Administrative

Transcript (“Tr.”) 85, 113. The youngest of her three boys is

about 17. See Tr. 85. She enjoys reading, watching television,

and playing strategic video games and is trying to get back into

crocheting. Tr. 95-96. For eight years, she worked at a Market

Basket deli department, until she left her job because of back

pain. See Tr. 86. A. Back, neck and hip pain

James has a history of treatment for back, neck, and hip

problems. In May, 2015, treating nurse practitioner Jennifer

Thomas, APRN, noted that James had significant spasms in her

neck. Tr. 344-45. During that appointment, James did not

report any back or hip pain, and Nurse Practitioner Thomas

determined that her gait was non-antalgic. 1 Tr. 344-45.

A few months later, things took a turn for the worse. On

July 9, 2015 (plaintiff’s alleged disability onset date), she

visited Barrington Health Center to address back pain. Tr. 339.

James rated her lower back pain level as 10/10. Tr. 339. Nurse

Practitioner Thomas noted that the pain “radiated to the

dermatome 2 anteriorly and right buttock.” Tr. 339. She further

observed an “active painful range of motion” in the lumbar

spine, significantly decreased strength in both hips and one

foot, an antalgic gait and an inability to heel walk. Tr. 351.

James underwent an MRI of her lumbar spine on July 21,

2015, which showed that her L4-5 had

1 “antalgic: characterized by reduced response to painful stimuli.” Stedman’s Medical Dictionary 65 (25th ed. 1990). 2 “dermatomic area: the area of skin supplied by cutaneous

branches from a single spinal nerve.” Stedman’s Medical Dictionary 420 (25th Ed. 1990).

2 Mild broad-based disc bulge. Mild to moderate hypertrophic facet arthropathy, 3 with thickening of ligamentum flavum. 4 Very mild canal stenosis. 5 [And] [m]inimal bilateral foraminal 6 narrowing.

Tr. 380.

Nurse Practitioner Thomas found “no significant change in back

compared to prior [the] MRI,” and told James, “if you are

feeling better [I] think it would be fine for you to return to

work.” Tr. 380.

James visited Kirsten Baca, M.D., on August 18, 2015. See

Tr. 625-628. Her chief complaints were pain in the “axial low

back pain, across the back,” hip pain and upper thigh pain. Tr.

625. Dr. Baca reported that “her pain is to the point that it

has made her unable to work, and her last day of work was July

9, 2015.” Tr. 625. Straight-leg raises elicited indexed pain,

but Dr. Baca evaluated James’s strength as “5 out of 5 in the

upper and lower extremities.” Tr. 627. Dr. Baca cautioned,

3 “arthropathy: any disease affecting a joint.” Stedman’s Medical Dictionary 136 (25th Ed. 1990). 4 “ligamentum flavum: yellow ligament; one of the paired

ligaments of yellow elastic fibrous tissue, which bind together the laminae of adjoining vertebrae.” Stedman’s Medical Dictionary 872 (25th Ed. 1990). 5 “stenosis: a stricture of any canal . . . .” Stedman’s Medical Dictionary 1473 (25th Ed. 1990). 6 “foramen: an aperture or perforation through a bone or a

membranous structure.” Stedman’s Medical Dictionary 605 (25th Ed. 1990).

3 however, that the exam was “limited by poor patient

participation.” Tr. 627.

On November 5, 2015, Frank Graf, M.D., performed a

consultative orthopedic examination. Tr. 657-59. The

lumbosacral examination was positive for pain on straight-leg

raises in the right buttock and right posterior thigh. Tr. 658.

He concluded that James was “impaired in fingering, pushing,

pulling and grasping,” as well as “bending, stooping, lifting

and carrying.” Tr. 659.

Veronica Bedeau, M.D., a non-examining state agency

physician, determined on November 17, 2015, that James could

perform light work with limitations. See Tr. 121-23. 7 These

limitations included climbing ramps or stairs, climbing ladders

or ropes, balancing, kneeling, stooping, crouching, and

crawling. Tr. 121-122. Bedeau noted that those limitations

were because James was “morbidly obese” with a 39.9 Body Mass

Index and degenerative disc disease. Tr. 122.

7 Bedeau wrote that James could perform a “20/10/6/6” work capacity. Tr. 123. These numbers refer to the maximum weight she can carry, the weight she can frequently carry, the hours per day she can stand, and the hours per day she can sit. See

(b) (“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.”); SSR 83-10,

, at *6 (“Since frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.”).

4 James underwent a consultative examination by Russell

Plewinski, CRNA, at Paincare Centers Somersworth on January 6,

2016. See Tr. 772-778. She reported her back pain as a 9/10

and reported that she was unable to walk more than 150 feet,

stand for more than five minutes, or sleep through the night

because of the pain. Tr. 772.

In January 2016, Nurse Practitioner Thomas examined James

and noted that her balance and gait were normal, but that she

was experiencing “lumbar-sacral tenderness to palpation.” Tr.

873.

B. Frustration and affective instability

From June 2015 to January 2017 James received treatment at

Seacoast Mental Health Center from psychiatric nurse

practitioner Jonathan Hickman, PMHNP-BC, and Counselor Airi

Mooers, MSW. Most of the records describe normal mental

operation. For instance, in July 2015, Nurse Practitioner

Hickman examined her and determined that her thought process was

“logical and goal oriented,” her attention and concentration

were “without distractibility” and her mood and affect were

“mildly anxious, [but] appropriate. Tr. 457. He diagnosed her

with an unspecified bipolar and related disorder, unspecified

anxiety disorder and unspecified stimulant-related disorder.

Tr. 457. James “remains stable on her medication,” he noted,

5 and she “has some increased anxiety due to not being able to

work secondary to financial issues,” but he concluded that “[n]o

changes [are]” required at this time. Tr. 485.

Those mental status findings are corroborated by other

visits. In November 2015, James’s thought process remained

“logical and goal directed,” and her attention and concentration

“without distractability,” although her mood and affect became

“mildly depressed, [but] appropriate.” Tr. 685. Likewise, her

thought process and attention and concentration remained the

same in January 2016, although her mood and affect were “mildly

depressed and anxious, [but] appropriate.” Tr. 715.

In December 2015, Counselor Mooers evaluated James.

James’s abilities to deal with the public and work stresses were

deemed “fair,” her ability to behave in a emotionally stable

manner “good/fair,” her ability to interact with supervisors and

relate to co-workers “good,” and her abilities to follow work

rules, use judgment, function independently, and maintain

attention and concentration “very good.” 8 Tr. 586-87. Mooers

did not identify any intellectual limitations but submitted that

8 The evaluation defined “Very Good” as “ability to function in this area is more than satisfactory;” “Good” as “ability to function in this area is limited but satisfactory;” “Fair” as “ability to function in this area is seriously limited, but not precluded;” and “Poor or None” as “No useful ability to function in this area.” Tr. 585.

6 James displayed some affective instability and “frequent

tearfulness/anger.” Tr. 587. Counselor Mooers explained that

“Debra’s primary limitations are related to distress and

frustration tolerance” and stated that “[s]he becomes easily

frustrated by daily stressors.” Tr. 586.

C. Procedural history

James applied for a period of disability and Social

Security disability benefits in August 2015 alleging disability

as of July 2015 due to “back issues, rheumatoid arthritis,

bulging disc, spinal stenosis, carpel tunnel left hand, hep c,

asthma, mental health issues, bipolar, anxiety, throat/vocal

cord issues, IBS, [and] acid reflux.” Tr. 113-14. Her

application was denied on November 20, 2015, Tr. at 128, and she

requested a hearing, which was held on March 28, 2017 in the

presence of her current counsel. Tr. 31. In June 2017, the

Administrative Law Judge (“ALJ”) concluded that James was not

entitled to benefits because she could perform jobs that exist

in significant numbers in the national economy. Tr. 42. She

appealed that decision to the Appeals Council on August 15,

2017, and the Council denied her request for review. Tr. 1.

James appeals from that decision.

7 II. THE ALJ’S DECISION

The ALJ’s conclusion followed from her application of the

five-step, sequential analysis required by

(a). See Tr. 31-43. At step one, the ALJ found that

James had not engaged in substantial gainful activity since July

9, 2015, the alleged onset date of her disability. See Tr. 33

(citing

)). At step two, the ALJ determined

that James was severely impaired by degenerative disc disease of

the lumbar and cervical spine, hepatitis C, asthma, obesity,

post-traumatic stress disorder, and an unnamed affective

disorder. Tr. 33 (citing

(c)).

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

considered individually or in combination, did not qualify as a

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

Appendix 1. Tr. 34 (citing

(d), 404.1525,

404.1526, 616.920(d), 416.925 and 416.926). She found that the

evidence did not establish that James’s musculoskeletal

impairments caused an inability to walk or ambulate effectively

or an inability to perform fine and gross movements. Tr. 34.

The ALJ also concluded that James’s mental impairments did not

satisfy the listed requirements because James had only mild to

moderate, and not marked or extreme limitations in her abilities

8 to understand information, interact with others, concentrate,

and manage herself. Tr. 34-36.

At step four, the ALJ determined that James had the

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

defined in

(b), with limitations with

respect to climbing, crawling, crouching, and hand use. See Tr.

36. She also limited James’s exposure to temperature extremes

and pulmonary irritants and limited her to uncomplicated tasks.

Tr. 36. The RFC allows James to have brief and superficial

interactions with the public and to collaborate with supervisors

and coworkers on routine matters. Tr. 36. Although the ALJ

found that James’s “medically determinable impairments could

reasonably be expected to cause the alleged symptoms,” she

concluded that James’s statements concerning the intensity,

persistence, and limiting effects of those systems were not

“entirely consistent” with the record. Tr. 37.

The ALJ determined at step four that James could not return

to her past relevant work as a deli clerk because it required

almost constant interaction with the public. Tr. 41. She then

found, at step five, that James was not disabled because she

could work as a garment sorter, laundry sorter, or vending

machine attendant, all of which were jobs that existed in

significant numbers in the national economy. Tr. 42.

9 III. 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 ALJ used the proper legal

standards and found facts [based] upon the proper quantum of

evidence.” Ward v. Comm’r of Soc. Sec.,

(1st

Cir. 2000). I defer to the ALJ’s findings of fact, so long as

those findings are supported by substantial evidence.

Substantial evidence exists “if a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate

to support his conclusion.” Irlanda Ortiz v. Sec’y of Health &

Human Servs.,

(1st Cir. 1991) (per curiam)

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

(1st Cir. 1981)).

If the ALJ’s factual findings are supported by substantial

evidence, they are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. If,

however, the ALJ derived her findings by “ignoring evidence,

misapplying the law, or judging matters entrusted to experts,”

they are not conclusive. Nguyen v. Chater,

(1st

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

10 issues of credibility and for drawing inferences from evidence

in the record. Irlanda Ortiz,

. Furthermore,

resolving conflicts in the evidence is the exclusive role of the

ALJ.

IV. ANALYSIS

James raises two points on appeal. First, she argues that

the RFC does not adequately account for her use of a cane to

walk. See Doc. No. 7-1 at 3. Second, she asserts that the

ALJ’s RFC determination neglected her “low tolerance for

distress and frustration.” See Doc. No. 7-1 at 4. 9 I am not

persuaded by either argument.

A. Cane use

An ALJ is required to consider medical opinions along with

all other relevant evidence in a claimant’s record.

(b). When determining a claimant’s RFC, an ALJ need not

consider conditions for which there is only “a paucity of

medical evidence in the record.” Perez v. Sec’y of Health &

Human Servs.,

(1st Cir. 1991). An ALJ “is not

qualified to interpret raw data in a medical record.” Manso-

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

(1st

9 The analysis section of the plaintiff’s memorandum consists of four sentences for the former contention, three for the latter, and no citations to any case, regulation, or Social Security Ruling. See Doc. No. 7-1 at 3-4.

11 Cir. 1996) (citing Perez,

). At the same time,

it is the duty of the ALJ to “determine issues of credibility

and to draw inferences from the record evidence.” Irlanda Ortiz,

).

Here, the ALJ properly supported her RFC determination with

substantial evidence with respect to James’s use of a cane.

The ALJ acknowledged that James “uses a cane if she is

walking for more than a block,” and that “[s]he has used a cane

since 2015 . . . .” Tr. 37. The ALJ also noted, correctly,

that the cane “has not been prescribed by a doctor.” Tr. 37.

This accords with the hearing testimony. When the ALJ asked,

“Did your doctors prescribe you the cane or [did you] just

pick[] it up on your own and start using it,” James replied “I

picked it up on my own because I was having problems walking.”

Tr. 91-92. James also testified that her “back doctor and []

physical therapy doctors know that I use the cane for any type

of walking,” but that “they haven’t expressed too much of [an]

opinion” about its efficacy or necessity. Tr. 92.

A cane is “medically required” and to be used in an RFC

hypothetical only if there is “medical documentation

establishing the need for a hand-held assistive device to aid in

walking or standing.” SSR 96-9P,

at *7. James

points to no such medical documentation in the record. The

12 opinion of Dr. Bedeau mentioned that James “claims to ambulate

with a cane or brace,” Tr. 117, but did not conclude that such

use was medically required. Cf. Tann v. Berryhill,

,

, at *5 n.6 (D.N.H. Apr. 10, 2017) (“Statements

in a medical record that merely repeat a claimant’s subjective

complaints are not medical opinions . . . .”) (citation

omitted). During the hearing, the ALJ asked whether any doctor

had put any restrictions on her activities. See Tr. 94. James

told her that “the physical therapy people they told me walking

is good but don’t try to overdo it by, like, hiking. So a

little walking is good but trying to hike is not good.” Tr. 94.

The ALJ’s determination that the cane was not medically required

was supported by substantial evidence.

James points to a post-hearing note from her primary care

provider, Jennifer Willard, APRN, that she “uses a cane as

needed to assist with ambulation when back pain is more severe.”

Tr. 21. But that note does not state that its use is “medically

required” or even that Nurse Willard recommends its use. Cf. SSR

96-9P,

at *7. And James’s contention that the

Appeals Council did not address the note, see Doc. No. 7-1 at 3,

is simply false. See Tr. 2 (explaining that evidence submitted

after the ALJ’s decision “does not relate to the period at

issue”).

13 There is no medical evidence that James’s use of a cane was

medically required and the ALJ adequately explained why it was

not included in the hypothetical or the RFC. Cf. Durfee v.

Berryhill, No. CV 16-079M,

, at *5 (D.R.I. Feb.

15, 2017), R. & R. adopted, No. CV 16-79-M,

(D.R.I. Mar. 3, 2017) (affirming ALJ decision omitting cane from

RFC where claimant submitted no evidence other than his own

testimony that it was medically required). The ALJ did not err

by excluding the cane from the RFC assessment and her decision

is supported by substantial evidence.

B. Frustration and mental instability

A person’s “residual functioning capacity ‘is the most [he

or she] can still do despite [his or her] limitations.’” Purdy

v. Berryhill,

, 10 n. 2 (1st Cir. 2018) (quoting

(a)(1)). The claimant bears both the burden of

production and the burden of proof to show that she is “unable

to do past work due to the significant limitation.” Baillargeon

v. Berryhill,

,

at *5 (D.N.H. Jan.

15, 2019) (quoting Seavey v. Barnhart,

(1st Cir.

2001));

. The ALJ must, however, “specify

the evidentiary basis for his RFC determination.” Canfield v.

Apfel,

,

, at *5 (D.N.H. Apr. 19,

2001); SSR 96–8p,

, at *7.

14 The ALJ’s RFC assessment accounts for the opinions of Nurse

Practitioner Hickman and Counselor Mooers and adequately

accounts for James’s emotional and affective instability.

The decision assigns “significant weight” to the assessment

of Nurse Practitioner Hickman and Counselor Mooers, which rated

James’s ability to deal with work stress “fair” and her ability

to behave in an emotionally stable manner as “good/fair.” Tr.

41 (citing Tr. 586-88). This accords with the RFC assigned to

James. The ALJ decided that she can perform “uncomplicated

tasks that can typically be learned in less than 30 days; can

have brief and superficial interactions with the public; and can

collaborate with supervisors and coworkers on routine matters.”

Tr. 36. James objects that the RFC does not refer to her “low

tolerance for distress and frustration” or the fact that she

becomes “easily frustrated by daily stressors.” Doc. No. 7-1 at

4. But the limitation to uncomplicated tasks is responsive to

her frustration, and the ALJ found that James was unable to

perform her past work as a deli clerk because it “[r]equired

almost constant interaction with the public.” Tr. 41. 10

10Nor does James identify any limitation that should have been in the RFC. Cf. Veach v. Comm’r of Soc. Sec. Admin., Civil No. 1:13–CV–76–DBH,

, at *4 (D. Me. Jan. 6, 2014) (noting that error is harmless if there is no medical record identifying greater limitations than those included in the RFC assessment).

15 Furthermore, the ALJ reasonably concluded that James’s

frustration and mood instability are not as disabling as she

believes them to be. The ALJ recognized that James had been

treated for an affective disorder, as well as anxiety disorder.

Tr. 39. The decision also explains, however, that the mental

status exams of examining Nurse Practitioner Hickman document

normal tone, speech, thought, associations, judgment, attention,

and concentration. Tr. 39 (citing Tr. 685, Tr. 715) (additional

citations omitted). She found the latter more informative and

was permitted to make this judgment. Cf. Floyd v. Berryhill,

,

, at *7 (D.N.H. June 21, 2017)

(affirming decision where ALJ “discounted [claimant’s]

subjective complaints relating to her mental impairments” by

relying on “supportably normal mental status examinations”).

Other medical sources similarly support the RFC’s mental

and social limitations. Doctor Vallery, in a comprehensive

psychological profile, stated that James was able to understand

instructions and that she can remember “short and simple

instructions, but not lengthy and detailed ones given her

anxiety and depression.” See Tr. 653. The decision discusses

both findings, Tr. 39, 40, and limits James to “uncomplicated

tasks” to reflect this. See Tr. 36. Doctor Stenslie similarly

found that James was “not significantly limited” in her ability

16 to carry out short and simple instructions. Tr. 123. The RFC

accurately reflects “the most [James] can still do despite [her]

limitations.” Purdy,

n. 2 (quoting

(a)(1)). I find no reversible error.

V. CONCLUSION

The ALJ’s RFC assessment is supported by substantial

evidence and contains no harmful legal error. Pursuant to

sentence four of

(g), I grant the Acting

Commissioner’s motion to affirm (Doc. No. 10) and deny Debra Ann

James’s motion to reverse (Doc. No. 7). The clerk is directed

to enter judgment accordingly and close the case.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

February 5, 2019

cc: Christopher G. Roundy, Esq. Michael L. Henry, Esq.

17