UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Lynn M. Perry, Claimant Case No. 19-cv-522-SM v. Opinion No.

Andrew Saul, Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g), claimant, Lynn Perry, moves

to reverse the Commissioner’s decision denying her application

for Disability Insurance Benefits under Title II of the Social

Security Act (the “Act”),

, and Supplemental

Security Income Benefits under Title XVI of the Act,

(c). The Commissioner objects and moves for an

order affirming the decision.

For the reasons discussed below, claimant’s motion is

denied, and the Commissioner’s motion is granted.

Background

I. Factual Background

A detailed factual background can be found in the

claimant’s statement of facts (document no. 9), and the

Commissioner’s statement of facts (document no. 11). A brief summary is provided, with an emphasis on the history of Perry’s

physical impairments, because her appeal of the ALJ’s decision

is focused thereon.

Perry was born in 1972. Prior to July, 2015, she worked as

a bartender, a banquet waitress, and a waitress. In her

application for benefits, Perry stated that her ability to work

is limited by the following physical or mental conditions:

bipolar disorder, attention deficit disorder; “hip problems;”

and “disc problems” and arthritis in her back. Admin. Rec. at

271. In Perry’s Function Report, she reported she was unable to

work because she could not “stand, sit or walk for more than 10

minutes at a time.” Admin. Rec. at 280. She further noted that

she had some difficulties getting dressed, bathing, and shaving

her legs, and found cooking more difficult because she was

unable to stand for long periods of time. Id. at 281. Claimant

reported that she was able to do her laundry (but needed help to

carry the laundry basket), cook, wash dishes and light cleaning,

but could not rake, garden, sweep, mop or reach to dust. Id. at

282-283. Claimant further reported that she was able to drive

alone; shop for food, clothes and household products; and attend

family social gatherings, and weekly church services. Id. at

283-284.

2 A. Medical Evidence in the Record

Perry has been treated for her hip pain and lower back pain

for the past several years by several different practitioners.

Dr. Richard McKenzie has been claimant’s primary care physician

since at least December, 2014. Admin. Rec. at 435 et. seq.

Claimant frequently visited Dr. McKenzie requesting prescriptive

pain relief, which, she reported, allowed her to maintain

function. See, e.g., admin. rec. at 429 (Aug. 31, 2015, office

visit); R. at 426 (Oct. 23, 2015, office visit); R. at 422 (Feb.

11, 2016, office visit). For example, at an office visit on

March 24, 2017, claimant reported that she continued to “have

some intermittent breakthrough symptoms,” but her “analgesia is

helping her to maintain function.” Admin. Rec. at 470.

Similarly, at a September 20, 2016, office visit, claimant

reported that her “analgesics are working reasonably well, but

she does have some breakthrough symptoms.” Admin. Rec. at 473.

On physical examination of claimant’s “osteopathic/

musculoskeletal” system, Dr. McKenzie frequently observed:

“There is no kyphoscoliosis. The cervical, thoracic and lumbar

curves are normal. There is full range of motion of all four

extremities. No evidence of cyanosis, clubbing, or edema.”

See, e.g., id. (Dec. 23, 2014, office visit). See also admin.

rec. at 422 (Feb. 11, 2016, office visit); 473 (Sept. 20, 2016,

office visit); 470 (Mar. 24, 2017, office visit); 567 (Sept. 25,

3 2017, office visit). Dr. McKenzie occasionally observed that

claimant had “decreased range of motion in her lumbar spine with

hypertonicity of paraspinal muscles.” See, e.g., admin. rec. at

420 (May 12, 2016, office visit); 426 (Oct. 23, 2015, office

visit). For her pain, Dr. McKenzie prescribed claimant

Oxycodone and Percocet. He also referred her to physical

therapy (which, claimant later reported, exacerbated her pain

(admin. rec. at 429)), and to a pain clinic for steroid

injections. See, e.g., admin. rec. at 567, 422. Dr. McKenzie’s

most recent treatment notes, from late-2017 and early-2018,

report that claimant’s back impairment was stable; he did not

recommend changing her treatment regimen. See admin. rec. at

472, 562, 565, 569.

Claimant received treatment from Littleton Hospital for her

back pain on two occasions: on July 12, 2015, and on August 28,

2015. On July 12, 2015, claimant visited the emergency room,

complaining of severe pain, and difficulty walking. Admin. Rec.

at 355. She was diagnosed with low back strain. Id. at 364.

On August 28, 2015, claimant returned to the emergency room,

reporting back and leg pain. The medical records from that

visit report the following result of a musculoskeletal exam:

Back was nontender to palpitation over the posterior spinous processes of the thoracic spine and the paraspinal musculature. She had no palpable

4 paraspinal spasm. Low back was nontender to palpation over the posterior spinous processes of the lumbar spine and paraspinal musculature. No palpable lumbar spasm. She moved quite well with exam.

Admin. Rec. at 380. Those records further state:

[Claimant] has filled 3 prescriptions for narcotics including March, April and July from 3 different providers only one of which appears to be her PCP. I had a long conversation with the patient stating that the policy in . . . emergency medicine is that we are not the prescribers of chronic pain medication and I referred her to her PCP. . . . The patient became somewhat argumentative and began to escalate and she became quite angry repeatedly requesting narcotic pain medicine. . . . She seemed to be ambulating with minimal difficulty at the time of discharge.

Admin. Rec. at 380.

In the autumn, 2015, claimant treated with orthopedic

surgeon Dr. Dougald MacArthur at the Alpine Clinic for leg pain

and associated weakness, with buckling of the leg. Admin. Rec.

at 346. Dr. MacArthur ordered an MRI, which showed “partial

sacralization of the L5 vertebra bilaterally (greater on the

right), severe hypertrophic facet changes at L4-5 (worse on the

right) with borderline to mild spinal canal stenosis and

moderate bilateral foraminal compromise, and mild degenerative

disc disease and bulging disc at L2-3 with borderline to mild

foraminal compromise (worse on the right).” Cl.’s Statement of

Material Facts at 4 (citing Admin. Rec. at 348-349). Claimant

was referred to a spine center.

5 Finally, claimant treated with AVH Surgical Associates’

Pain Management Clinic, for “spinal stenosis, unspecified spinal

region;” and “spondylosis of lumbar region without myelopathy or

radiculopathy.” Admin. Rec. at 549. At an office visit on May

19, 2016, claimant reported chronic low back pain, and posterior

and lateral thigh pain. Id. at 550. She further reported that

“her lower extremities give out” with any heavy lifting. Id.

Claimant’s physical examination revealed an abnormal gait and

station, as well as tenderness and pain upon examination of the

spine. 1 She was diagnosed with spinal stenosis and spondylosis

of the lumbar region, and, on June 2, 2016, received lumbar

spine injections at L3 through L5. Admin. Rec. 558-559.

1 At that visit, APRN Carmen Ackerson noted the following:

[Claimant] has violated [controlled substance agreement] in past . . . and she was weened down due to being late for pill count. She was previously being seen here and we were unable to reach for pill count and DUA. . . . She is NOT a candidate for opiates through this clinic. No [controlled substance agreement] done and patient refused DUA today. We will only treat her with non-narcotic and interventional procedures. She was belligerent at this [office visit] . . . At her last office visit here[,] it was noted “She was very upset and refused to leave exam room for several minutes, her [significant other] came back into area as well, security was notified, arrived, and patient and [significant other] left.” If this occurs again[,] patient will not be seen at this office.

Admin. Rec. at 549.

6 On October 25, 2016, Dr. Peter Loeser performed an

orthopedic consultative examination of claimant. Admin. Rec.

465-68. He noted that, “[o]ther than mild abdominal pain and

loss of lumbar lordosis,” “there [were] no significant findings

on physical examination.” Admin. Rec. at 467. He further noted

that claimant appeared “comfortable at rest and with activity,

and move[d] with ease around the examination room without any

apparent . . . impairment.” Admin. Rec. at 467-68.

Claimant received another MRI on June 27, 2018, which

showed a “transitional lumbrosacral junction; moderate

multifactorial L304 spinal stenosis and multifactorial neural

encroachment with probable exiting right L3 radicular

impingement; a shallow subligamentous mixed spondylitic

protrusion at L4-5 with facet arthrosis causing mild bilateral

neural foraminal encroachment; hypertrophic facet arthrosis and

slight synovial cyst formation at the right L3-4 facet joint; a

disc protrusion at L3-4 with annular tear and hypertrophic facet

arthrosis; and, thoracolumbar scoliosis and rotation.” Cl.’s

Statement of Material Facts at 6-7 (citing Admin. Rec. at 591-

592).

Finally, the record indicates that claimant was engaging in

a variety of physical activities (or at least told her health

care providers that she was engaging in those activities). For

7 example, at a May 12, 2016, office visit, claimant reported that

her pain had improved over the winter because she had been

“fairly inactive,” but, as she increased her activity — she had

gone to pick fiddlehead ferns a day prior — her pain had

increased. Admin. Rec. at 420. Claimant also told her health

care providers that she exercised twice a week (admin. rec. at

504), often “would go out in the evening until 3AM or later”

(admin. rec. at 451); went camping and swimming (admin. rec. at

522); engaged in “heavy lifting” (admin. rec. at 422); and

conducted seemingly strenuous home renovations, including

stripping wallpaper, lifting old linoleum, and tearing down

plasterboard (admin. rec. at 531, 534).

B. Opinion Evidence in the Record

There are two medical opinions in the record that assess

claimant’s physical limitations. The first is from Dr. Jonathan

Jaffe, a state agency consultant who did not treat or examine

claimant, but reviewed the evidence in the record. On October

26, 2016, Dr. Jaffe opined that claimant could occasionally lift

and carry 20 pounds; frequently lift and carry 10 pounds; and

stand, walk and sit about six hours in an eight hour work day.

Admin. Rec. at 101-102. He further opined that claimant could

occasionally climb ramps, stairs, ladders, ropes and scaffolds;

8 and could occasionally balance, stoop, kneel, crouch, and crawl.

Admin. Rec. at 101-102.

On December 14, 2017, Dr. McKenzie completed a “Multiple

Impairment Questionnaire,” in which he opined that claimant

could sit, stand and/or walk for less than an hour (on a

sustained and ongoing basis). Admin. Rec. at 489-493. He

further opined that her pain, fatigue, or other symptoms were

severe enough to frequently interfere with claimant’s attention

and concentration, and that claimant would need to take

frequent, unscheduled breaks to rest at unpredictable intervals

during an eight-hour workday. Id. Dr. McKenzie stated that

claimant’s limitations had been present since before December

23, 2014.

II. Procedural History

On February 12, 2016, claimant filed applications for

Supplemental Security Income and Disability Insurance Benefits,

respectively. She alleged that she was disabled and had been

unable to work since July 31, 2015. Her application was denied

on October 27, 2016, and claimant requested a hearing before an

Administrative Law Judge (“ALJ”).

On July 25, 2018, claimant, her attorney, and an impartial

vocational expert appeared before an ALJ, who considered

9 claimant’s application de novo. On October 4, 2018, the ALJ

issued her written decision, concluding that claimant was not

disabled, as that term is defined in the Act, through the date

of the decision. Claimant then requested review by the Appeals

Council. The Appeals Council denied claimant’s request for

review, finding no reason to review the ALJ’s decision.

Accordingly, the ALJ’s denial of claimant’s applications for

benefits became the final decision of the Commissioner, subject

to judicial review. Subsequently, claimant filed a timely

action in this court, asserting that the ALJ’s decision is not

supported by substantial evidence.

Claimant then filed a “Motion to Reverse Decision of the

Commissioner” (document no. 7). In response, the Commissioner

filed a “Motion for an Order Affirming the Decision of the

Commissioner” (document no. 10). Those motions are pending.

III. The ALJ’s Findings

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory

five-step sequential evaluation process described in

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, she first determined that

claimant had not been engaged in substantial gainful employment

since her alleged onset of disability, July 31, 2015. Admin

10 Rec. at 18. She next concluded that claimant suffers from the

following severe impairments: “degenerative disc disease, spinal

stenosis, labral tear of the hip, attention deficit

hyperactivity disorder, bipolar disorder, and depression with

anxiety.”

The ALJ then determined that claimant’s

impairments, whether considered alone or in combination, did not

meet or medically equal one of the impairments listed in Part

404, Subpart P, Appendix 1 of the regulations.

2

Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except that the claimant is limited to standing and walking up to six hours and sitting up to six hours in an eight hour workday. The claimant needs to alternate between sitting and standing every thirty minutes, but changes in her position would not take off her task. She must avoid work requiring the use of ladders, ropes, or scaffolds. She is limited to occasionally climbing ramps and stairs, balancing, stopping, kneeling, crouching, and crawling. The claimant must avoid concentrated exposure to dust, fumes, and poorly ventilated areas. She is capable of simple, routine tasks with occasional minor changes in

2 With respect to claimant’s mental impairments, the ALJ found that Perry had moderate limitations in understanding, remembering, or applying information; moderate limitation in interacting with others; moderate limitation with regard to concentrating, persisting, or maintaining pace; and moderate limitation in adapting or managing oneself.

The ALJ then determined that the “paragraph B” criteria were not satisfied because the claimant’s mental limitations did not amount to two “marked” limitations or one “extreme” limitation. The ALJ further determined that the “paragraph C” criteria were not satisfied.

11 the work setting. She is unable to perform work that involves fast-paced production standards.

Admin. Rec. at 20-21. In light of those restrictions, and based

on the testimony of the vocational expert, the ALJ concluded

that claimant was not capable of performing her past relevant

work.

.

Finally, the ALJ considered whether there were any jobs in

the national economy that claimant might perform. Relying on

the testimony of the vocational expert, the ALJ concluded that

“the claimant is capable of making a successful adjustment to

other work that exists in significant numbers in the national

economy.”

. The ALJ then concluded that claimant was

not “disabled,” as that term is defined in the Act, through the

date of her decision.

Standard of Review

I. “Substantial Evidence” and Deferential Review

Pursuant to

(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” Factual findings and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

12 1383(c)(3). See also Ortiz v. Secretary of Health & Human

Services,

(1st Cir. 1991). Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated

Edison Co. v. NLRB,

(1938). Importantly, it

is something less than a preponderance of the evidence, so the

possibility of drawing two inconsistent conclusions from the

evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence. Consolo v.

Federal Maritime Comm’n.,

(1966). See also

Richardson v. Perales,

(1971).

This court’s review of the ALJ’s decision is, therefore,

both limited and deferential. The court is not empowered to

consider claimant’s application de novo, nor may it undertake an

independent assessment of whether she is disabled under the Act.

Rather, the court’s inquiry is “limited to determining whether

the ALJ deployed the proper legal standards and found facts upon

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

(1st Cir. 1999). Provided the ALJ’s findings are properly

supported by substantial evidence, the court must sustain those

findings even when there may also be substantial evidence

supporting the contrary position. Such is the nature of

judicial review of disability benefit determinations. See,

13 e.g., Tsarelka v. Secretary of Health & Human Services,

(1st Cir. 1988); Rodriguez v. Secretary of Health &

Human Services,

(1st Cir. 1981).

II. The Parties’ Respective Burdens

An individual seeking SSI and/or DIB benefits is disabled

under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months.”

(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The

Act places a heavy initial burden on the claimant to establish

the existence of a disabling impairment. See Bowen v. Yuckert,

(1987); Santiago v. Secretary of Health &

Human Services,

(1st Cir. 1991). To satisfy that

burden, the claimant must prove, by a preponderance of the

evidence, that her impairment prevents her from performing her

former type of work. See Gray v. Heckler,

(1st Cir. 1985); Paone v. Schweiker,

(D. Mass. 1982). If the claimant demonstrates an inability to

perform her previous work, the burden shifts to the Commissioner

to show that there are other jobs in the national economy that

she can perform, in light of her age, education, and prior work

14 experience. See Vazquez v. Secretary of Health & Human

Services,

(1st Cir. 1982). See also

(f) and 416.912(f).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). Ultimately, a claimant is disabled only if

her:

physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Commissioner’s motion to affirm the

decision.

15 Discussion

In support of her motion to reverse the ALJ’s decision,

claimant raises the following errors: (1) the ALJ erred in her

assessment of the medical opinion evidence, specifically the

opinion of Dr. McKenzie; (2) the ALJ erred by failing to

properly evaluate claimant’s testimony; and (3) the ALJ erred by

failing to reconcile conflicts between the testimony of the

vocational expert and the Dictionary of Occupational Titles.

I. The ALJ Properly Evaluated the Medical Opinion Evidence.

Perry first takes issue with the ALJ’s treatment of the

medical opinion evidence. More specifically, she argues that

the ALJ erred by giving little weight to the opinion of Perry’s

treating physician, Dr. McKenzie, and instead relied on the

opinion of the state agency physician, Dr. Jaffe.

A. Dr. McKenzie’s Opinion

The ALJ wrote the following regarding Dr. McKenzie’s

December, 2017, opinion:

The Undersigned considered an impairment questionnaire completed by Dr. McKenzie in December 2017. . . . The Undersigned grants little weight to this assessment because it is not consistent with the objective evidence or conservative course of treatment, discussed above. It is also inconsistent with her reported activities of daily living, including doing some cleaning and home renovation, as well as her work activity, [as] she worked as a waitress after September, 2014, and demonstrated more than a one-hour sedentary capacity.

16 Admin. Rec. 30-31.

Perry argues that, because Dr. McKenzie is her treating

physician, his opinion should have been given controlling

weight. Claimant further argues that, contrary to the ALJ’s

findings, Dr. McKenzie’s opinion is well-supported by the

objective medical evidence, and is not inconsistent with

claimant’s activities of daily living.

In discussing the weight that will be ascribed to the

opinions of “treating sources,” the regulations applicable to

claimant’s appeal provide that, “Generally, we give more weight

to medical opinions from [the claimant’s] treating sources,

since these sources are likely to be the medical professionals

most able to provide a detailed, longitudinal picture of [the

claimant’s] medical impairment(s).”

(c)(2).

See also Social Security Ruling, Policy Interpretation Ruling

Titles II and XVI: Giving Controlling Weight to Treating Source

Medical Opinions, SSR 96-2p,

(July 2, 1996).

Importantly, however, there is no per se rule requiring the ALJ

to give greater weight to the opinion of a treating source. To

be entitled to controlling weight, a treating source’s opinions

must be “well-supported by medically acceptable clinical and

laboratory diagnostic techniques and [cannot be] inconsistent

17 with the other substantial evidence in [the] case record.”

(c)(2).

Claimant contends that, contrary to the ALJ’s determination

that Dr. McKenzie’s opinion is unsupported by the objective

medical evidence, the opinion “expressly stated that the

limitations . . . were based on x-rays of the spine and hip and

MRI findings of the spine.” Cl.’s Mem. in Supp. of Mot. to

Reverse at 3 (citing Admin. Rec. at 484, 488). And, claimant

contends, those findings are correlated by physical examinations

documenting decreased motion in the lumbar spine, with

hypertonicity of the paraspinal muscles.

As the Commissioner points out, claimant’s argument

slightly mischaracterizes the record. In his opinion, Dr.

McKenzie cited to the x-rays and MRI as “findings that support

[his] diagnosis,” (spinal stenosis, left hip pain and

degenerative disc disease of the lumbar spine), not as findings

that support the limitations he assessed in his December, 2017,

opinion. Admin. Rec. at 484 (Question 2b). And, as the

Commissioner further notes, a significant percentage of the

findings in the medical record following physical examination of

the claimant — particularly those findings made by Dr. McKenzie

18 — were normal. 3 See, e.g, Admin. Rec. at 420-21, 424, 427, 471,

474, 562, 565, 569; see also Admin. Rec. at 346, 381, 467-68.

The claimant’s additional arguments regarding the weight

the ALJ afforded Dr. McKenzie’s opinion are unpersuasive.

Claimant takes issue with the ALJ’s finding that Perry’s

activities of daily living were not consistent with Dr.

McKenzie’s opinion. The court agrees, however, with the ALJ:

the record regarding claimant’s activities (e.g., tearing down

plasterboard, lifting old linoleum, stripping wallpaper) is not

consistent with the limitations Dr. McKenzie described in his

opinion. See, e.g., Admin. Rec. at 419, 423, 451, 522, 531,

534.

But, claimant continues, there is no evidence that she

engaged in those activities for a prolonged period. That

argument is similarly unavailing. As the ALJ pointed out, Dr.

McKenzie noted in his opinion that claimant’s limitations had

existed since “before 12/23/2014.” Admin. Rec. 488 (Question

3 For example, at claimant’s office visit on December 14, 2017, (the date on which Dr. McKenzie’s opinion was rendered), claimant informed Dr. McKenzie that “her back pain and hip pain prevent her from doing any lifting, standing or sitting for extended periods.” Admin. Rec. at 564. But, the “Review of Systems” from the visit states: “Back pain/problems none. Joint pain none. Joint swelling none. Muscle weakness none.” Id. at 565 (emphases added).

19 14a-b). Claimant continued to work as a bartender/waitress for

several months after December 23, 2014, at least until July

2015, work which required “a lot of bending and standing.”

Admin. Rec. at 429. Performing that sort of work on a regular

basis would, of course, be considered prolonged. See also

Admin. Rec. at 380 (claimant stating that she had been

“travel[ling] about town for several hours . . . running some

errands”). Moreover, the ALJ did not find that claimant was

capable of employment based entirely on her activities.

Instead, the ALJ determined that claimant’s activities were not

consistent with the limitations assessed by Dr. McKenzie. See

(c)(4) (“Generally, the more consistent a

medical opinion is with the record as a whole [including

activities of daily living], the more weight [an ALJ] will give

to that medical opinion.”).

The ALJ thoroughly explained his reasons for discounting

Dr. McKenzie’s opinion. Those reasons are well-supported by the

record. Thus, claimant’s criticisms of the ALJ’s treatment of

Dr. McKenzie’s opinion do not warrant remand.

20 B. Dr. Jaffe’s Opinion

Claimant takes issue with the ALJ’s reliance on the opinion

of Dr. Jaffe because, she says, Dr. Jaffe reviewed claimant’s

file on October 26, 2016, when it included treatment notes only

through October, 2015. Therefore, she says, Dr. Jaffe reviewed

only three months of treatment notes, notes that ended three

years prior to the date of the ALJ’s decision.

The Commissioner responds that claimant is incorrect: Dr.

Jaffe, in fact reviewed more recent records, including an

October 25, 2016, consultative exam. See Admin. Rec. at 102-3.

Moreover, the Commissioner says, plaintiff fails to establish

that the medical evidence post-dating Dr. Jaffe’s review

demonstrated a sustained worsening in her condition.

“It can indeed be reversible error for an administrative

law judge to rely on an RFC opinion of a non-examining

consultant when the consultant has not examined the full medical

record.” Ferland v. Astrue, No. 11-CV-123-SM,

,

at *4 (D.N.H. Oct. 31, 2011) (quoting Strout v. Astrue, Civil

No. 08–181–B–W,

, at *8 (D. Me. Jan. 28, 2009))

(further citations omitted). However, as the court has

previously stated:

21 an ALJ may rely on such an opinion where the medical evidence postdating the reviewer's assessment does not establish any greater limitations, see Strout v. Astrue at *8–9, 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. See Torres v. Comm'r of Social Security, Civil No. 04–2309,

, at *1 (D.P.R. Sept. 6, 2005) (upholding ALJ's reliance on RFC assessment of non-examining reviewer where medical records of treating providers were not “in stark disaccord” with the RFC assessment). See also McCuller v. Barnhart, No. 02–30771,

, at *4 n.5 (5th Cir. 2003) (holding ALJ did not err in relying on non-examining source's opinion that was based on an incomplete record where he independently considered medical records dated after the non- examining source's report).

Ferland,

, at *4.

In her decision, the ALJ acknowledged that there was

additional medical evidence in the records following Dr. Jaffe’s

review, but concluded “there was no significant decline or

change in the physical or mental impairments, including reported

symptoms, objective findings or course of treatment, as

discussed above.” Admin. Rec. at 30. Substantial evidence

supports that conclusion. The ALJ’s review of the medical

evidence in her decision includes a thorough discussion of

claimant’s medical treatment post-dating Dr. Jaffe’s review

which support her finding that that claimant’s symptoms remained

generally stable, and that claimant’s treatment was unchanged.

See, e.g., Admin. Rec. at 25-29; see also Admin. Rec. at 472,

22 562, 565, 569. Accordingly, claimant’s argument that the ALJ

erred in relying on Dr. Jaffe’s opinion is unpersuasive.

In sum, for all the above reasons, the ALJ did not err in

her treatment of the medical opinion evidence.

II. The ALJ Properly Evaluated Claimant’s Testimony.

Claimant next argues that the ALJ’s evaluation of Perry’s

subjective statements is not supported by substantial evidence.

More specifically, claimant finds fault with the ALJ’s findings

regarding claimant’s activities of daily living and her course

of treatment.

With respect to claimant’s argument concerning her

activities of daily living, that argument is substantially

similar to claimant’s argument concerning the ALJ’s findings

with respect to Dr. McKenzie’s opinion. In her Function Report,

claimant reported that she was unable to “stand, sit or walk for

more than 10 minutes at a time.” Admin. Rec. at 280. But, as

noted, there is, at a minimum, evidence in the record that

claimant went camping (admin. rec. at 522), performed

substantial home renovations (admin. rec. at 531, 534); went out

all night until three in the morning (admin. rec. at 451), and

exercised twice a week for thirty minutes (admin. rec. at 494,

504). Performance of such activities is not consistent with the

23 ability to stand or sit for only ten minutes at a time. See

Bourinot v. Colvin,

(D. Mass. 2015) (“It

is not unreasonable to infer that Plaintiff's capacity to engage

in these recreational activities [including going to the beach,

and playing pool and darts] is inconsistent with her testimony

that she can only walk a couple blocks, stand for only 10–15

minutes, and lift only five pounds.”) See also Blackette v.

Colvin,

(D. Mass. 2014) (“While

Blackette is correct that such activities cannot, by themselves,

demonstrate an ability to work, they can be used — as the

hearing officer used them here — for credibility

determinations.”) (citing cases). And, claimant has not argued

— nor does the record support a finding — that her pain was

intermittent in nature, such that she could occasionally

participate in such physical activities, but was other times

largely incapacitated. Based on the court’s review of the

record, there is substantial evidence supporting the ALJ’s

findings concerning the claimant’s ADLs.

The claimant further assigns error to the ALJ’s findings

concerning the course of her treatment for her impairment, and

claimant’s response to that treatment. However, the ALJ’s

findings are well-supported by both the record, and the relevant

case law. See, e.g., Admin. Rec. at 400-01, 421, 424, 427, 430-

24 31, 472, 550, 560 - 569; see also Anderson v. Berryhill,

(D. Mass. 2019) (characterizing

claimant’s treatment with pain medications and physical therapy

as conservative, and affirming ALJ’s decision to discount

medical opinion on that basis).

Substantial evidence supports the ALJ’s evaluation of the

claimant’s testimony.

III. The Vocational Expert’s Testimony Does Not Conflict With the Dictionary of Occupational Titles.

Claimant’s final argument is that the ALJ erred by failing

to reconcile conflicts between the testimony of the vocational

expert and the description of the jobs found for claimant in the

Dictionary of Occupational Titles (“DOT”). Pl.’s Mem. in

Support of Mot. to Reverse at 9.

The vocational expert testified that claimant could perform

the following jobs: laundry classifier, price marker, and

mailroom clerk. But, says claimant, she could not perform those

jobs with the mental limitations found by the ALJ in her RFC,

because those jobs require “Level 2” reasoning, according to the

DOT’s job descriptions.

As the Commissioner points out, the court has previously

held that there is no conflict between a limitation to simple,

25 routine work, and reasoning Level 2 jobs. See Hebert v. Colvin,

No. 13-CV-102-SM,

, at *6 (D.N.H. Aug. 6, 2014)

(“This court joins the majority of district and circuit courts

in holding that an RFC limiting a claimant to jobs involving

‘simple instructions’ does not, standing alone, eliminate

positions identified in the DOT as requiring ‘Level 2’

reasoning.”) (citing cases). Accordingly, there is no conflict,

and claimant’s final argument is unpersuasive.

Conclusion

This court’s review of the ALJ’s decision is both limited

and deferential. The court is not empowered to consider

claimant’s application de novo, nor may it undertake an

independent assessment of whether she is disabled under the Act.

Rather, the court’s inquiry is “limited to determining whether

the ALJ deployed the proper legal standards and found facts upon

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

(1st Cir. 1999). Provided the ALJ’s findings are properly

supported by substantial evidence — as they are in this case —

the court must sustain those findings even when there may also

be substantial evidence supporting the contrary position. Such

is the nature of judicial review of disability benefit

determinations. See, e.g., Tsarelka v. Secretary of Health &

Human Services,

(1st Cir. 1988) (“[W]e must

26 uphold the [Commissioner’s] conclusion, even if the record

arguably could justify a different conclusion, so long as it is

supported by substantial evidence.”); Rodriguez v. Secretary of

Health & Human Services,

(1st Cir. 1981) (“We

must uphold the [Commissioner’s] findings in this case if a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support his conclusion.”).

Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant, the

court necessarily concludes that there is substantial evidence

in the record to support the ALJ’s determination that claimant

was not “disabled,” as that term is used in the Act, at any time

prior to the date of her decision.

For the foregoing reasons, as well as those set forth in

the Commissioner’s legal memorandum, claimant’s motion to

reverse the decision of the Commissioner (document no. 7) is

denied, and the Commissioner’s motion to affirm her decision

(document no. 10) is granted. The Clerk of the Court shall

enter judgment in accordance with this order and close the case.

27 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

January 28, 2020

cc: Daniel S. Jones, Esq. Brenda M. Golden Hallisey, Esq. Luis A. Pere, Esq.

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