UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Carl Crowley

v. Case No. 19-cv-650-JL Opinion No.

Andrew Saul, Commissioner Social Security Administration

MEMORANDUM AND ORDER

Carl Crowley has appealed the Social Security

Administration’s (“SSA”) denial of his applications for a period

of disability and disability insurance benefits. An

administrative law judge (“ALJ”) at the SSA ruled that, despite

severe impairments, Crowley retained the residual functional

capacity (“RFC”) to perform a limited range of light work and

thus was not disabled as defined by the Social Security

regulations during the period at issue. See

(a). The ALJ’s decision was affirmed by the Appeals

Council and therefore became the final decision on his

applications. See

§ 404.981. Crowley then appealed the

decision to this court, which has jurisdiction under

(g) (Social Security).

On appeal, Crowley argues that the ALJ’s RFC assessment

cannot stand because he improperly evaluated medical opinions,

erroneously discounted Crowley’s subjective complaints, and

misconstrued evidence in the record. See LR 9.1(c). The SSA Commissioner disagrees and has cross-moved for an order

affirming the ALJ’s decision. See LR 9.1(d). After careful

consideration, the court denies Crowley’s motion to reverse and

grants the Commissioner’s cross-motion to affirm the SSA’s final

decision.

I. BACKGROUND1

In December 2018, ALJ Thomas Merrill issued a partially

favorable decision.2 For purposes of Crowley’s application for

supplemental security income (“SSI”), the ALJ applied the

Medical-Vocational Guidelines and found him disabled as of June

19, 2018, when he turned 55 and moved into the advanced age

category. See 20 C.F.R. Pt. 404, Subpt. P, App. 2. The ALJ

found him not disabled for the period between August 29, 2012

and June 18, 2018. The unfavorable finding precludes Crowley’s

claim for disability insurance benefits (“DIB”) because his

insured status expired in September 2014. See SSR 18-01p,

, at *5 (Oct. 2, 2018).

1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitations in their Statements of Material Facts (Doc. Nos. 9-2 & 11) are incorporated by reference. 2 The ALJ previously issued an unfavorable decision in October 2015. Crowley appealed to the district court after the Appeals Council denied review. The parties agreed to a remand for the ALJ to further develop the record and reevaluate a treating physician’s opinion.

2 The ALJ assessed Crowley’s claims under the five-step

sequential analysis required by

At step

one, he found that Crowley had not engaged in substantial

gainful activity since August 29, 2012, his alleged disability

onset date. Tr. 1984. At step two, the ALJ found that

Crowley’s degenerative disc disease of the spine, obesity,

chronic obstructive pulmonary disease (“COPD”), and depression

qualified as severe impairments. Tr. 1984. The ALJ also found

that his diabetes and hypertension were not severe impairments.

Tr. 1984-85. At step three, the ALJ determined that none of

Crowley’s impairments, considered individually or in

combination, qualified for any impairment listed in 20 C.F.R.

Part 404, Subpart P, Appendix 1. Tr. 1985; see

(d).

The ALJ then found that Crowley had the RFC to perform

light work as defined in

(b), except he

could only lift 20 pounds occasionally and 10 pounds frequently,

stand or walk for four hours, and sit for six hours in a day.

In addition, he should never crawl or climb ladders, scaffolding

or ropes; could occasionally stoop, kneel, crouch, and climb

stairs or ramps; and should avoid concentrated exposure to

3 The court cites to the regulations applicable to DIB claims. The analogous regulations applicable to SSI claims contain the same requirements. See

et seq.

3 respiratory irritants. In terms of mental functioning, the ALJ

found that Crowley could understand, remember and carry out

simple tasks; maintain concentration, persistence or pace during

two-hour periods; tolerate ordinary and routine interactions

with co-workers and supervisors, as well as brief and routine

interactions with the general public; and adapt to basic changes

for routine tasks, exhibit independent and goal-oriented

behavior, avoid hazards, and travel independently. Tr. 1991.

The ALJ gave little weight to the opinions of treating

providers Sandra Benckendorf, MD and Thomas Rock, MD. Tr. 1996-

97. He gave substantial weight to the opinions of state agency

physicians, Hugh Fairley, MD and Marie Turner, MD. Tr. 1997.4

The ALJ then determined at step four that Crowley could not

perform his past relevant work as a pipe fitter. Tr. 1999.

Applying the Medical-Vocational Guidelines, the ALJ found

Crowley disabled beginning on June 19, 2018. Tr. 2000. The

ALJ, however, found at step five that other jobs existed in the

national economy that Crowley could have performed prior to June

2018, such as a parts cleaner, order caller, and gate attendant.

Tr. 2000. Accordingly, the ALJ concluded that Crowley had not

been disabled from August 29, 2012 to June 18, 2018. Tr. 2001.

4 The ALJ evaluated additional medical opinions in the record. As Crowley does not challenge the ALJ’s weighing of those opinions, the court does not address them.

4 II. STANDARD OF REVIEW

The court is 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). The court defers 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.” 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

5 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

Crowley alleges that the ALJ erred by concluding that he

retained the RFC to perform a limited range of light work.

Specifically, the ALJ allegedly failed to give proper weight to

the opinions of Crowley’s treating providers, insupportably gave

substantial weight to the opinion of a state agency physician,

improperly evaluated his subjective complaints, and misconstrued

evidence in the record. The court evaluates each argument in

turn and concludes that none has merit.

A. Medical Opinion Evidence

An ALJ must consider “medical opinions” provided by both

treating and non-treating “acceptable medical sources,”

“together with the rest of the relevant evidence.”

(a)-(b) (effective for claims filed before March 27,

2017); see SSR 96-8p,

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

addition, the ALJ must address each medical opinion and explain

why those that conflict with the RFC assessment were not

adopted. SSR 96-8p,

, at *7.

6 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

[his] symptoms, diagnosis and prognosis, what [he] can still do

despite impairment(s), and [his] physical or mental

restrictions.”

(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).

A medical opinion from a treating provider is entitled to

“controlling weight” if it is well-supported and consistent with

substantial evidence. Id. § 404.1527(c)(2). “And even if not

deemed controlling, a treating physician’s opinion is entitled

to weight that reflects the physician’s opportunity for direct

and continual observation.” Purdy,

. An ALJ may

discount a treating source’s opinion only if he gives “good

reasons” for doing so, which must be “both specific and

supportable.” Jenness v. Colvin,

,

,

at *6 (D.N.H. Aug. 27, 2015) (citations omitted); see

(c)(2); SSR 96–2p,

, at *5 (July 2,

1996). As explained below, the court finds no error in the

ALJ’s evaluation of the medical opinions at issue here.

7 1. Dr. Benckendorf’s Opinion

The ALJ assigned “little weight” to the opinion of treating

physician Dr. Benckendorf. The ALJ’s assessment is supported by

evidence that is “adequate” to persuade “a reasonable mind.”

See Irlanda Ortiz,

(internal quotation marks

omitted).

Dr. Benckendorf filled out a residual functional capacity

form on Crowley’s behalf in May 2014. She described Crowley’s

symptoms as left low back pain radiating down his left leg,

shoulder pain, depression, insomnia, anxiety, cough, and sleep

apnea. Tr. 1542. His diagnoses were chronic shoulder pain,

“many pinched nerves in his back causing constant pain,” and

“bad COPD” causing cough and shortness of breath. Tr. 1542.

Further, she noted that these physical issues caused depression,

anxiety, and insomnia. Tr. 1542. According to Dr. Benckendorf,

Crowley could not sit or stand upright for six to eight hours

due to pain, and he would need to lie down during the day. Tr.

1543-44. She noted that he could stand for “several minutes”

before his pain gets “bad.” Tr. 1543. In terms of postural

limitations, she stated that Crowley could reach above shoulder

up to 30% of the time and could reach down to the floor up to

70% of the time. Tr. 1544. Dr. Benckendorf also opined that

Crowley was limited to lifting and carrying five to ten pounds

total and less than five pounds on a regular basis. Tr. 1544.

8 The ALJ gave “good reasons” for giving little weight to Dr.

Benckendorf’s opinion. See

(c)(2). The ALJ

correctly observed that Dr. Benckendorf expressed much of her

opinion by checking off items on a pre-printed form, which “goes

a long way toward supporting the ALJ’s determination to accord

[the] opinion little weight.” Purdy,

. Next, the

ALJ explained that she did not provide a clinical basis for

limiting Crowley’s reaching. See

(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.”). The ALJ also explained that Dr. Benckendorf did not

indicate how long Crowley could sit upright or how long he would

need to lie down. Her opinion thus failed to reflect Crowley’s

maximum retained functioning, as a medical opinion ought to do.

See

§ 404.1527(a)(1) (medical opinion reflects the most an

individual can do despite impairments). As such, it was owed no

special deference.

Finally, the ALJ supportably found Dr. Benckendorf’s

opinion inconsistent with the doctor’s own treatment notes and

other medical records. See id. § 404.1527(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.”).

As the ALJ noted, Dr. Benckendorf’s examination of Crowley just

9 days prior to her opinion showed normal gait and station, no

acute distress, and no respiratory distress. See Tr. 1523.

Although he complained of low back pain that radiated down his

left leg with prolonged sitting or standing, he also reported

exercising through outdoor activities. See Tr. 1520, 1523. Dr.

Benckendorf’s examinations during a number of other visits

likewise documented normal gait and station despite complaints

of pain. See, e.g., Tr. 941, 2369, 2988, 2971. Further, the

ALJ noted that in December 2016, some two-and-a-half years after

rendering her opinion, Dr. Benckendorf wrote that Crowley was “a

lot better physically from when I first met him 5 y[ears] ago.”

Tr. 1997 (quoting Tr. 2370). He had normal gait and station at

that time and reported walking his dog. Tr. 2369. Accordingly,

the ALJ appropriately determined that Dr. Benckendorf’s opined

limitations, including that Crowley could stand only for a few

minutes at a time, were inconsistent with the evidence of record

and not entitled to deference.

Crowley contends that the ALJ impermissibly interpreted raw

medical data by relying upon normal gait and station findings to

discount Dr. Benckendorf’s opinion. The argument is unfounded.

The prohibition on interpreting raw medical data applies to

“inscrutable medical terminology that require[s] an expert to

interpret.” Guzman v. Colvin,

,

, at

*3 (D.N.H. Apr. 1, 2016). It does not preclude an ALJ from

10 making “common-sense judgments about functional capacity based

on medical findings,” within “the bounds of a lay person’s

competence.” Gordils v. Sec’y of Health & Human Servs.,

(1st Cir. 1990). Clinical observations concerning

gait and station are among medical findings that a lay

factfinder can understand without expert help and may rely upon

when evaluating a medical opinion. See Widlund v. Astrue, No.

11-CV-371-JL,

, at *9-10 (D.N.H. Apr. 16, 2012),

R. & R. adopted,

(D.N.H. May 14, 2012)

(collecting authorities). The ALJ thus properly found Crowley’s

normal gait and station to be inconsistent with the standing and

walking limitations reflected in Dr. Benckendorf’s opinion.

2. Dr. Rock’s Opinion

The ALJ accorded “little weight” to the opinion of treating

orthopedist Dr. Rock. The ALJ’s evaluation withstands scrutiny

because he gave “good reasons” for discounting the opinion. See

Purdy,

;

(c)(2).

Dr. Rock began treating Crowley in September 2012. An

addendum to his treatment notes dated April 16, 2015, stated

that Crowley had lumbar disc degeneration and facet disease, as

well as comorbid factors of chronic pain, COPD, diabetes, upper

extremity problems, and cervical degenerative disc disease. Tr.

1921. Based on these conditions, Dr. Rock opined that Crowley

could not perform “even a sedentary job, considering his obvious

11 limitations.” Tr. 1921. Dr. Rock added that Crowley could not

do “any heavy lifting or physical labor” or “long hours of

sitting [or] standing.” Tr. 1921. Finally, Dr. Rock opined

that Crowley was “probably totally disabled and unable to get or

maintain any job situation.” Tr. 1921.

The ALJ supportably discounted much of Dr. Rock’s opinion,

including that Crowley was likely totally disabled and incapable

of sedentary work, on the basis that he opined on issues

reserved for the Commissioner. See

(d)

(opinions that would direct a determination of disability are

not medical opinions and are not entitled to “any special

significance”). In terms of Dr. Rock’s limitation of no heavy

lifting or physical labor, the ALJ correctly observed that the

restriction was not inconsistent with the limited range of light

work reflected in the ALJ’s RFC finding. See Tr. 1996.

Contrary to Crowley’s contention that the ALJ ignored Dr.

Rock’s remaining opinion that Crowley was incapable of prolonged

sitting or standing, a fair reading of the decision shows that

the ALJ found the opinion inconsistent with the evidence of

record. Specifically, the ALJ cited the treatment notes

discussed above documenting normal gait and station, as well as

Crowley’s conservative treatment, noting that although spinal

surgery was contemplated at the time of Dr. Rock’s opinion, it

was not performed. See Tr. 1996. In addition, the ALJ

12 considered Crowley’s subsequent report that he was going fishing

and using a metal detector to be incompatible with the doctor’s

opinion precluding lengthy sitting or standing. See Tr. 1997.

In any event, the court agrees with the Commissioner that

Dr. Rock’s statement that Crowley was unable to sit or stand for

long periods is not an opinion reflecting what Crowley can still

do despite his impairments, which is how the Social Security

regulations define a medical opinion. See

(a)(1). Accordingly, this statement was not entitled

to special weight.

3. Dr. Turner’s Opinion

Crowley contends that the ALJ’s assignment of “substantial

weight” to the opinion of state agency physician Dr. Turner

requires remand because the opinion is based on a significantly

incomplete record. The court finds no merit in this argument.

It can be reversible error for an ALJ to rely on an opinion

of a non-examining consultant who has not reviewed the full

medical record. Brown v. Colvin,

,

,

at *3 (D.N.H. July 17, 2015); Ferland v. Astrue,

,

, at *4 (D.N.H. Oct. 31, 2011). But “the fact

that an opinion was rendered without the benefit of the entire

medical record does not, in and of itself, preclude an ALJ from

giving significant weight to that opinion.” Meldrem v. Colvin,

,

, at *2 (D.N.H. May 23, 2017)

13 (quoting Coppola v. Colvin,

,

, *8

(D.N.H. Feb. 21, 2014)). The ALJ may rely on such an opinion

where medical evidence unavailable to the reviewer “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.”

(quoting Ferland,

, at *4).

The ALJ bears the burden of showing that either of these

conditions is present and must make that determination

“adequately clear.” Giandomenico v. U.S. Soc. Sec. Admin.,

,

, at *4 (D.N.H. Nov. 15, 2017).

Dr. Turner reviewed Crowley’s records in April 2017, in

connection with his second SSI application with an alleged onset

date of September 4, 2015. See Tr. 2115, 2121-23. The records

she reviewed began in May 2016 and included three office visits,

a lumbar MRI, and a consultative examination. In February 2014,

Dr. Fairley, another state agency physician, reviewed Crowley’s

then-existing records for his November 2013 SSI and DIB

applications with an alleged onset date of August 29, 2012. See

Tr. 105-06, 113-15. The two sets of applications were combined

after the court remanded the ALJ’s decision on Crowley’s initial

applications. See Tr. 2148.

Both Dr. Turner and Dr. Fairley opined that Crowley was

capable of performing light work, subject to similar postural

14 and environmental limitations. Dr. Turner further limited him

to only four hours of standing or walking in an eight-hour day,

compared to Dr. Fairley’s restriction of six hours. See Tr.

113-15, 2121-23. The ALJ explained that the two opinions were

consistent with the medical evidence, but he gave the benefit of

the doubt to Crowley and considered objective imaging findings

in adopting Dr. Turner’s more conservative opinion. Tr. 1997.

Crowley is correct that the record before Dr. Turner was

significantly limited, as it did not include his medical records

prior to May 2016. This, however, did not preclude the ALJ from

assigning her opinion substantial weight for two reasons.

First, Dr. Fairley reviewed a significant volume of the earlier

records that were unavailable to Dr. Turner, including the

results of a pulmonary function test that Crowley maintains

shows the severity of his COPD and that Dr. Turner noted was

lacking from her records. See Tr. 113. Dr. Fairley’s opined

limitations are substantially identical to Dr. Turner’s, with

the exception of standing/walking, where Dr. Turner in fact

offered a more restrictive RFC. The consistency of their

opinions, which the ALJ noted, is an adequate basis to conclude

that the records predating Dr. Turner’s review did not document

“a material change for the worse in the claimant’s limitations.”

Gruhler v. Berryhill,

,

, at *5

(D.N.H. Dec. 20, 2017). Second, the ALJ himself reviewed the

15 medical records unavailable to Dr. Turner and concluded that

they did not establish any greater limitations than those she

assessed. See Byron v. Saul,

,

, at

*6 (D.N.H. Aug. 14, 2019) (the ALJ did not err in relying on a

non-examining source’s opinion that was based on an incomplete

record where the ALJ independently considered subsequent

treatment notes); Marino v. U.S. Soc. Sec. Admin.,

,

, at *6 (D.N.H. Sept. 19, 2018) (same); Ferland,

, at *4 (same). Accordingly, the court finds no

error in the ALJ’s reliance on Dr. Turner’s opinion.

B. Evaluation of Subjective Complaints

Crowley next argues that the ALJ did not properly evaluate

his subjective complaints. The court concludes that the ALJ

supportably discounted his subjective reports regarding the

severity of his pain and other symptoms as not fully consistent

with the record evidence.

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

the 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); 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

16 produce his 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 evidence in the record. Id.;

see Coskery v. Berryhill,

(1st Cir. 2018).

The ALJ cannot disregard the claimant’s statements about

his 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 are: (1) the claimant’s

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

intensity of any 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. Avery v. Sec’y of Health & Human

Servs.,

(1st Cir. 1986); see 20 C.F.R.

17 § 404.1529(c)(3). But the ALJ is not required to address every

Avery factor in his written decision. 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.

Crowley testified that he experienced chronic daily pain in

his neck, lower back, and left leg, as well as difficulty

breathing with exertion, including lifting weight, standing, or

walking for prolonged periods. See Tr. 2168-72, 2174. He also

testified that he needed to lie down or sit in his recliner with

his feet elevated throughout the day to relieve pain. See Tr.

2176. The ALJ determined that Crowley’s medically determinable

ailments could cause the alleged symptoms, but he discounted

Crowley’s testimony as to their severity.

The ALJ concluded that the objective medical evidence falls

short of substantiating Crowley’s subjective complaints. First,

the ALJ acknowledged that the results of two MRIs of the lumbar

spine establish that Crowley suffers from degenerative disease

of the spine but noted that the imaging showed mild to moderate

changes. See Tr. 1993. Crowley contends that the ALJ either

18 misconstrued the evidence by failing to include a full

recitation of all the imaging findings or translated raw medical

data into functional terms. Neither point is well taken. The

ALJ supportably concluded that, on the whole, the imaging

results documented no more than moderate impairment. This is

consistent with the functional assessments of Drs. Turner and

Fairley, who between them reviewed the relevant studies. See

Tr. 113 (June 2013 MRI discussed in Dr. Fairley’s assessment);

Tr. 2133, 2373 (May 2016 MRI results contained in December 2016

treatment record reviewed by Dr. Turner). As discussed above,

the ALJ afforded substantial weight to their opinions and thus

did not render an impermissible lay opinion on the imaging data.5

Second, the ALJ correctly noted that, throughout the

relevant period, Crowley generally presented with normal gait,

normal motor strength, normal sensation, and normal deep tendon

responses. See Tr. 1993. The ALJ supportably found those

objective findings inconsistent with disabling symptoms.

Third, the ALJ acknowledged that pulmonary function tests

confirmed that Crowley had COPD but concluded that the resulting

5 In a single sentence, Crowley notes that the nerve root compression from the 2016 MRI is significant because it is a factor in assessing whether an impairment meets or equals Listing 1.04. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. Given that Crowley did not challenge the ALJ’s step three finding that his impairments did not meet all the criteria of the listing, the court deems this undeveloped argument waived. See United States v. Zannino,

(1st Cir. 1990). 19 limitations were consistent with the RFC finding. The ALJ

reasoned that Crowley did not constantly experience symptoms

from this condition and his respiration was typically recorded

as normal during office visits. Tr. 1994; see, e.g., Tr. 717,

741, 767, 1039, 1095, 1242, 1873, 2735) (normal respiration in

recorded vital signs). The ALJ also noted that consultative

examiner Peter Loeser, MD, reported moderate diffuse wheezes and

sporadic coughing as the only objective findings relating to

COPD. Tr. 1998; see 2408-10.6 Finally, the ALJ credited the

opinions of state agency physicians who considered the symptoms

of Crowley’s COPD and found them consistent with a capacity for

a restricted range of light work. Indeed, Dr. Fairley

specifically referenced the results of a February 2014 pulmonary

function test, which Crowley claims supports his complaints.

See Tr. 113.7

6 Crowley contends that the ALJ mischaracterized Dr. Loeser’s findings, because earlier in the decision he stated that Dr. Loeser found Crowley’s respiratory system to be “normal.” See Tr. 1993. Crowley acknowledges, however, that the ALJ subsequently discussed the doctor’s abnormal findings. See Tr. 1998. The ALJ’s decision makes apparent that he deemed Crowley’s moderate diffuse wheezes and sporadic coughs to be consistent with the limitations included in the RFC finding. 7 Contrary to Crowley’s assertion that his COPD was a fundamental factor in his treating providers’ opinions, even they did not tie any functional limitations to this condition. Although Dr. Benckendorf stated that Crowley had “bad COPD” that caused cough and shortness of breath, she explained that her opined limitations resulted from pain. See Tr. 1542-45. 20 Crowley acknowledges that the medical record in his case

spans over 2,400 pages, and yet he faults the ALJ for not

discussing certain records supportive of his testimony. It is

not administratively feasible for an ALJ to discuss each and

every piece of evidence in the record, and the law does not

require it. See Lord v. Apfel,

(D.N.H.

2000) (discussing cases). The court is satisfied that the ALJ’s

decision sufficiently considered “whatever in the record fairly

detracts from its weight” in assessing whether the objective

medical evidence supports the severity of Crowley’s subjective

complaints. See

(internal quotation marks omitted).8

Although “the record arguably could support a different

conclusion,” the ALJ’s assessment is supported by evidence that

a reasonable person would accept as adequate. See Irlanda

Ortiz,

. Thus, the court must uphold it.

The ALJ next found that Crowley’s reported activities were

inconsistent with the severity of his self-described symptoms.

The ALJ noted that Crowley reported using a snow blower and lost

15-20 pounds in a 7-month period in 2016 due to increased

Similarly, Dr. Rock only listed COPD as a comorbid factor without providing any resulting limitations. See Tr. 1921. 8 For example, although the ALJ did not cite the records documenting instances of an antalgic gait and inability to toe or heel walk, the ALJ relied upon Dr. Turner’s opinion, which discussed those findings. See Tr. 1997, 2122.

21 exercise. Tr. 1993; see Tr. 2366. Further, Crowley told one of

his providers that he was fishing and occasionally using a metal

detector during the relevant period, which the ALJ noted

requires physical exertion incompatible with his alleged

symptoms. See Tr. 1997. Although Crowley now maintains that

his medical records misstate his activities and that the ALJ

should have relied instead on his testimony about the limited

nature of those activities, conflicts in the evidence are for

the ALJ to resolve. See Purdy,

.

Finally, the ALJ found Crowley’s treatment at odds with his

testimony. He noted that Crowley was treated conservatively

with narcotic medication and injections for pain relief. Tr.

1993. Although spinal surgery was contemplated at one point, it

was never performed. See Tr. 1994, 1996. The ALJ also noted

that Crowley continued smoking despite its negative impact on

his COPD. See Tr. 1994. The fact that Crowley continued

smoking against medical advice is a factor the ALJ properly

considered in discounting his subjective complaints of disabling

conditions. See Collard v. Colvin,

,

,

at *5 (D.N.H. Jan. 7, 2015) (claimant’s continued smoking

despite its adverse effect on his impairment supported the ALJ’s

credibility finding); Russell v. Barnhart,

,

, at *7 (D.N.H. Jan. 9, 2004), aff’d,

(1st

Cir. 2004) (same); Mooney v. Shalala,

(D.N.H.

22 1994) (same); see also SSR 16-3p,

, at *8 (“if

the individual fails to follow prescribed treatment that might

improve symptoms, we may find the alleged intensity and

persistence of an individual’s symptoms are inconsistent with

the overall evidence of record”). In sum, substantial evidence

supports the ALJ’s decision to discount Crowley’s statements

concerning the limiting effects of his pain and other symptoms.

C. Other Evidence

Crowley also argues that the ALJ erroneously ignored

evidence that Crowley would be absent from work too frequently

to sustain work. To the extent he points to evidence of his

intolerance to prolonged standing or sitting, the court rests on

its previous discussion of the ALJ’s consideration of this

evidence. Additionally, Crowley argues that he must attend

medical appointments at least two days every month, a level of

absenteeism that the vocational expert testified most employers

would not tolerate. See Tr. 2042. Although the record indeed

shows he attended several appointments on a monthly basis,

Crowley has failed to demonstrate that he would have to miss

work on multiple days each month. As the Commissioner notes,

Crowley did not work during the period in question and thus had

the flexibility to schedule appointments at his convenience. It

is plausible that he could combine several appointments into one

day so as to miss only one day of work or attend appointments

23 during non-working hours. Further, neither of his treating

providers opined that his medical appointments would interfere

with a normal work schedule. See Tr. 1542-46, 1921. The court

therefore finds no error in the ALJ’s failure to account for

Crowley’s potential absenteeism.

The court likewise finds no merit in Crowley’s argument

that the ALJ should have found him disabled based on the

vocational expert’s testimony that a hypothetical claimant who

can sit or stand for only six hours combined and needs to lie

down at an unpredictable time for a half hour, would be

unemployable. As discussed above, substantial evidence supports

the ALJ’s rejection of each of those limitations.

IV. CONCLUSION

Pursuant to sentence four of

(g), the court

grants the Commissioner’s motion to affirm (Doc. No. 10) and

denies Crowley’s motion for an order reversing the

Commissioner’s decision (Doc. No. 9). The clerk is directed to

enter judgment accordingly and close the case.

SO ORDERED.

__________________ Joseph N. Laplante United States District Judge

February 10, 2020

cc: Ruth Heintz, Esq. Jessica Tucker, Esq.

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