UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Brian Shaw

v. Civil No. 19-cv-730-LM Opinion No.

Andrew Saul1, Commissioner, U.S. Social Security Administration

O R D E R

Pursuant to

(g), Brian Shaw seeks judicial

review of the decision of the Commissioner of the Social

Security Administration denying his applications for disability

insurance benefits and for supplemental security income. Shaw

moves to reverse the Commissioner’s decision, contending that

the Administrative Law Judge (“ALJ”) erred by assigning improper

weight to the medical opinions in the record. The

Administration moves to affirm. For the reasons discussed

below, the decision of the Commissioner is affirmed.

STANDARD OF REVIEW

In reviewing the final decision of the Commissioner under

Section 405(g), the court “is limited to determining whether the

ALJ deployed the proper legal standards and found facts upon the

1 On June 17, 2019, Andrew Saul was sworn in as Commissioner of Social Security. Pursuant to Fed. R. Civ. P. 25(d), he automatically replaces the nominal defendant, Nancy A. Berryhill, who had been Acting Commissioner of Social Security. proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st

Cir. 2001). The court defers to the ALJ’s factual findings as

long as they are supported by substantial evidence.

(g); see also Fischer v. Colvin,

(1st Cir.

2016). “Substantial-evidence review is more deferential than it

might sound to the lay ear: though certainly ‘more than a

scintilla’ of evidence is required to meet the benchmark, a

preponderance of evidence is not.” Purdy v. Berryhill,

(1st Cir. 2018) (citation omitted). Rather, the court

“must uphold the Commissioner’s findings if a reasonable mind,

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

as adequate to support her conclusion.”

(citation, internal

modifications omitted).

DISABILITY ANALYSIS FRAMEWORK

To establish disability for purposes of the Social Security

Act (the “Act”), a claimant must demonstrate an "inability to

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

expected . . . to last for a continuous period of not less than

12 months."

(d)(1)(A). The Commissioner has

established a five-step sequential process for determining

whether a claimant has made the requisite demonstration. 20

(a)(4), 416.920(a)(4); see also Bowen v.

Yuckert,

(1987). The claimant “has the burden

of production and proof at the first four steps of the process.”

Freeman v. Barnhart,

(1st Cir. 2001). The

first three steps are: (1) determining whether the claimant is

engaged in substantial gainful activity; (2) determining whether

he has a severe impairment; and (3) determining whether the

impairment meets or equals a listed impairment.

.1520c(a)(4)(i)-(iii), 416.920(a)(4)(i)-(iii).

If the claimant meets his burden at the first two steps of

the sequential analysis, but not at the third, an ALJ assesses

the claimant’s residual functional capacity (“RFC”), which is a

determination of the most a person can do in a work setting

despite the limitations caused by his impairments.

§§

404.1520(e), 416.920(e), 404.1545(a)(1), 416.945(a)(1); see also

S.S.R. No. 96-8p,

(S.S.A. July 2, 1996). At the

fourth step of the sequential analysis, the ALJ considers the

claimant’s RFC in light of his past relevant work.

(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can

perform his past relevant work, the ALJ will find that the

claimant is not disabled. See

If the claimant cannot

perform his past relevant work, the ALJ proceeds to the fifth

step, at which it is the Administration’s burden to show that

3 jobs exist in the economy which the claimant can do in light of

his RFC. See

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

BACKGROUND

A detailed recital of the factual background can be found

in Shaw’s statement of facts (doc. no. 8) as supplemented by the

Commissioner’s statement of facts (doc. no. 10), and in the

transcript of the administrative record (doc. no. 6). The court

provides a brief summary of the case here and provides further

summary of Shaw’s medical history below, in connection with its

discussion of the issues raised by the parties.

Shaw filed an application for disability insurance benefits

and an application for supplemental security income on March 20,

2018, alleging a disability onset date of November 6, 2017.2

Shaw alleged that he was disabled due to seizures, muscle

weakness and loss of mobility in his left arm, chronic nerve

2 Shaw’s Statement of Material Facts contains a reference to Shaw’s “amended alleged disability onset date of December 31, 2014.” Doc. no. 8, ¶ 1. This reference appears to have been included in error. There is no other suggestion elsewhere in the record that Shaw ever amended his alleged disability onset date. Moreover, the medical record makes clear that Shaw’s allegedly disabling conditions were not present as of December 31, 2014, but rather arose in November 2017, nearly three years later. See Admin. Rec. at 278-379, 381-400. In addition, it is clear from the record that Shaw worked full time from 2014 through approximately November 2016, nearly two years after the referenced date. See id. at 47-48, 197-209. Finally, neither Shaw’s complaint nor the memorandum in support of Shaw’s motion suggests that Shaw was disabled prior to November 6, 2017. See doc nos. 1, 7. The court therefore disregards the reference.

4 pain, severe headaches, and posterior reversible encephalopathy

syndrome (“PRES”). Shaw met the insured status requirements of

the Act through December 31, 2017.

After the Administration denied Shaw’s application, Shaw

requested a hearing before an ALJ. The ALJ held a hearing on

February 13, 2019. Shaw testified at the hearing, as did

impartial vocational expert Elizabeth C. Laflamme.

The ALJ issued an unfavorable decision on February 26,

2019. She found that Shaw had a combination of severe

impairments consisting of status post PRES, degenerative disc

disease of the cervical spine with left C5-6 radiculopathy, left

carpal tunnel syndrome, post-traumatic stress disorder (“PTSD”),

and mild neurocognitive disorder.3 The ALJ did not find that

Shaw’s combination of impairments met or equaled the severity of

the impairments listed at

, Subpart P, Appendix

1.

The ALJ found that Shaw had the residual functional

capacity to perform light work as defined at

(b) and 416.967(b), with the following physical

limitations:

[Shaw] can lift and carry 20 pounds occasionally but he cannot lift more than 10 pounds with the upper

3 The ALJ did not find that Shaw was severely impaired in connection with his other diagnosed conditions, namely hypertension, high cholesterol, and possible postural orthostatic tachycardia syndrome.

5 extremity alone; he can frequently lift up to 10 pounds; he can sit for 6 hours in an 8-hour workday; [he can] stand and walk for 4 hours in an 8-hour workday; he cannot climb ladders, ropes, or scaffolds; he can occasionally climb ramps and stairs; he cannot crawl; he can occasionally balance, stoop, kneel, and crouch; he cannot perform overhead reaching with the dominant, left upper extremity; he is limited to frequent fingering and handline with his dominant, left upper extremity; he should not be exposed to vibrations (i.e., handheld power tools); and he should not be exposed to hazards (i.e., unprotected heights and dangerous moving machinery).

Admin. Rec. at 15. The ALJ assessed Shaw’s mental limitations

as follows:

[Shaw] is able to understand, remember, and carry out uncomplicated tasks (i.e., tasks typically learned in less than 30 days); instructions must be given orally and/or in writing; and he can maintain concentration, persistence, and pace for two-hour blocks of time throughout the workday, consistent with regularly scheduled breaks/lunch.

In assessing Shaw’s RFC, the ALJ found that Shaw’s

testimony regarding the intensity, persistence, and limiting

effects of his symptoms was not fully consistent with the

available medical evidence. The ALJ considered all of the

medical evidence of record, including the opinions of reviewing

consultative physician Stephanie Green, M.D., examining

neurologist Samhitha Rai, M.D., treating physician’s assistant

Marcy Starling, PA-C, reviewing consultative psychiatrist

Stephen Kleinman, M.D., examining consultative psychologist

Stefanie Griffin, Ph.D., and treating social worker Rachael

6 Wizwer. In connection with her assessment of Shaw’s physical

RFC, the ALJ found the opinion of reviewing consultative

physician Dr. Green to be persuasive, well-supported, and

consistent with the medical evidence of record, but found the

opinions of examining neurologist Dr. Rai and treating

physician’s assistant Starling to be less persuasive on both

supportability and consistency grounds. In connection with her

assessment of Shaw’s mental RFC, the ALJ similarly found the

opinion of reviewing consultative psychiatrist Dr. Kleinman to

be persuasive, well-supported, and consistent with the medical

evidence of record, but found the opinions of examining

consultative psychologist Dr. Griffin and treating social worker

Wizwer to be less persuasive on both supportability and

consistency grounds.

In response to hypothetical questions posed by the ALJ,

Laflamme, the impartial vocational expert, testified to her

opinion that a person with Shaw’s age, education, past work

experience, and RFC could perform the job duties of occupations

existing in significant numbers in the national economy,

including as representative examples laundry classifier, price

marker, and school bus monitor. Based on this testimony, the

ALJ found at Step Five of the sequential process that Shaw was

not disabled for purposes of the Social Security Act, and had

not been under a disability from November 6, 2017 (his alleged

7 disability onset date) through February 26, 2019 (the date the

ALJ’s decision issued).

On June 24, 2019, the Appeals Council denied Shaw’s request

for review. In consequence, the ALJ’s decision became the

Administration’s final order for purposes of judicial review.

(a); see also, e.g., Sims v. Apfel,

(2000). This action followed.

DISCUSSION

On appeal, Shaw argues that the ALJ erred in weighing the

medical opinions of record. Specifically, Shaw argues that the

ALJ erred in her assessment of his physical RFC when she found

the opinion of reviewing consultative physician Dr. Green more

persuasive than the contrary opinions of examining neurologist

Dr. Rai and treating physician’s assistant Starling. Shaw

further argues that the ALJ erred in her assessment of his

mental RFC when she found the opinion of reviewing consultative

psychiatrist Dr. Kleinman more persuasive than the contrary

opinions of examining consultative psychologist Dr. Griffin and

treating social worker Wizwer.

For applications like this one, filed on or after March 27, 2017, the [Administration] has fundamentally changed how adjudicators assess opinion evidence. The familiar and longstanding requirements—that adjudicators must assign “controlling weight” to a well-supported treating source’s medical opinion that is consistent with other evidence, and, if controlling

8 weight is not given, must state the specific weight that is assigned—are gone.

Nicole C. v. Saul, Case No. CV 19-127JJM,

, at *4

(D.R.I. Jan. 6, 2020) (citing

.1520c(a)). Under

the newly applicable regulations, which (as noted) govern

applications filed on or after March 27, 2017, an ALJ does not

assign specific evidentiary weight to any medical opinion and

does not defer to the opinion of any medical source (including

the claimant’s treating providers).

.1520c(a),

416.920c(a). Instead, the ALJ evaluates the relative

persuasiveness of the medical evidence in terms of five

specified factors.

The five factors the ALJ considers in evaluating the

persuasiveness of a medical opinion are supportability (the

relevance of the opinion’s cited objective medical evidence),

consistency (how consistent the opinion is with all of the

evidence from medical and non-medical sources),

treatment/examining relationship (including length of treatment

relationship, frequency of examinations, purpose of treatment

relationship, and existence and extent of treatment/examining

relationship), specialization (the relevance of the source’s

specialized education or training to the claimant’s condition),

and what the Administration refers to as “other factors” (the

medical source’s familiarity with the claimant’s medical record

9 as a whole and/or with the Administration’s policies or

evidentiary requirements).

§§ 404.1520c(c)(1)-(5),

416.920c(c)(1)-(5) (emphasis supplied). Of the five factors,

the “most important” are supportability and consistency. Id. §§

404.1520c(a), 404.1520c(b)(2), 416.920c(a), 416.920c(b)(2).

Although the ALJ must consider all five of the factors in

evaluating the persuasiveness of medical evidence, when

preparing the written decision the ALJ is, in most cases, only

required to discuss application of the supportability and

consistency factors. Id. §§ 404.1520c(b)(2), 416.920c(b)(2).

Only where contrary medical opinions are equally persuasive in

terms of both supportability and consistency is the ALJ required

to discuss their relative persuasiveness in terms of the

treatment/examining relationship, specialization, and other

factors. Id. §§ 404.1520c(b)(3), 416.920c(b)(3). In addition,

where a single medical source offers multiple opinions, the ALJ

is not required to discuss each opinion individually, but

instead may address all of the source’s opinions “together in a

single analysis.” Id. §§ 404.1520c(b)(1), 416.920c(b)(1).

Moreover, while the ALJ must consider all of the relevant

evidence in the record, id. §§ 404.1520b(a)-(b), 416.920b(a)-

(b), the ALJ need not discuss evidence from nonmedical sources,

including, e.g., the claimant, the claimant’s friends and

family, educational personnel, and social welfare agency

10 personnel. Id. §§ 404.1502(e), 404.1520c(d), 416.902(j),

416.920c(d). And while the regulations require the ALJ to

discuss the relative persuasiveness of all medical source

evidence, id. §§ 404.1520c(b), 416.920c(b), the claimant’s

impairments must be established specifically by evidence from an

acceptable medical source, id. §§ 404.1521, 416.921.

“Acceptable medical sources” are limited to physicians and

psychologists, and (within their areas of specialization or

practice) to optometrists, podiatrists, audiologists, advanced

practice registered nurses, physician assistants, and speech

pathologists. Id. §§ 404.1502(a), 416.902(a). Evidence from

other medical sources, such as licensed social workers or

chiropractors, is insufficient to establish the existence or

severity of a claimant’s impairments. Id.

Finally, the ALJ need not discuss evidence that is

“inherently neither valuable nor persuasive,” including

decisions by other governmental agencies or nongovernmental

entities, findings made by state disability examiners at any

previous level of adjudication, and statements by medical

sources as to any issue reserved to the Commissioner. Id. §§

404.1520b(c), 416.920b(c).

11 I. Shaw’s Medical History

Shaw worked full time from 1991 through 2001, did not work

(or reported minimal earnings) from 2002 through 2007, worked

for part of 2008, and did not work (or reported minimal

earnings) from 2009 through 2013. Admin. Rec. at 197-209. He

worked full time from 2014 through approximately November 2016,

at which time he stopped working after suffering a knee injury

unrelated to his current impairments. Id. at 47-48. After he

recovered from his knee injury, he was unable to find work

through his alleged disability onset date of November 6, 2017.

Id.

Shaw attended physical therapy in connection with his knee

injury in January 2017. Id. at 727-745. At the conclusion of

that therapy, as of approximately January 26, 2017, Shaw and his

physicians determined that he was “ready to return to work.”

Id. at 743. As noted, he nevertheless did not return to work

thereafter.

Shaw again sought physical therapy in March 2017 (prior to

his alleged disability onset date of November 6, 2017),

complaining of pain and weakness in his left arm and shoulder.

Id. at 746-756. Shaw told his physical therapists that these

symptoms had begun 18 months previously. Id. at 752. Shaw

thereafter attended physical therapy sessions on approximately a

weekly basis, and his therapists recorded steady improvement in

12 his weakness, pain, and range of motion over the following

months. Id. at 746-809. In June 2017, Shaw reported relief

from his symptoms, and his therapists recorded that his therapy

was complete, all recovery goals having been accomplished. Id.

at 805-809.

On November 6, 2017, Shaw reported to a hospital emergency

room reporting a severe headache, a mild persistent fever, and

recent rapid weight loss. Id. at 307. He received a CT scan of

the head which revealed no abnormalities and was sent home with

pain medications. Id. at 307, 367, 390-394. On November 10,

2017, he returned to the emergency room with similar symptoms,

and while under hospital supervision suffered two generalized

tonic-clonic seizures. Id. He received an MRI, following which

he was diagnosed with posterior reversible encephalopathy

syndrome (PRES), possibly related to alcohol withdrawal

syndrome. Id. at 307, 366-367.

After the seizures, he reported that his left arm was “much

weaker and clumsy.” Id. at 361. Post-seizure examination

revealed that he retained fine motor function and a strong grip,

but that the strength of his left upper arm was reduced to

“3/5.” Id. On November 16, 2017, when he returned to the

emergency room reporting continuing headaches, examination

indicated that he had equal grip strength in both hands and full

strength in both arms. Id. at 282.

13 Shaw returned once again to physical therapy on November

20, 2017, complaining of “minimal to no use of his left arm” and

specifically advising his therapists that this symptom had

started on November 6, 2017. Id. at 810-822. Shaw once again

began attending physical therapy sessions approximately weekly,

and his therapists again recorded steady progress (“weekly

improvements”) in his recovery. Id. at 810-892. By his final

session on July 30, 2018, he presented with full range of motion

in his left arm and shoulder, and significant progress toward

return to baseline strength. Id. at 887-892. However, he still

had significant weakness in some muscle groups, and his

therapists judged that his goal of independence in performing

household care tasks and in dressing himself was only partly

achieved. Id. His therapists opined that his progress had not

been either as rapid or as complete as would have been expected

in “patients with similar complexities and comorbidities.” Id.

at 892. Shaw was discharged from physical therapy on the

recorded ground that he had stopped making appointments. Id.

Shaw underwent an additional MRI study on January 13, 2018.

Id. at 1006, 1010. That study indicated “prominent resolution”

of the PRES condition “but with some minor flair changes still

present.” Id. at 1006. A follow-up MRI on February 7, 2019,

indicated that the previously noted abnormalities were

“essentially resolved.” Id. at 1010.

14 At the February 13, 2019, hearing before the ALJ, Shaw

testified that he was able use his left arm to feed himself, to

perform “smaller chores, like a load of laundry, [or washing]

dishes by hand,” and to “write for a limited period of time,”

apparently around ten minutes. Id. at 48-49, 55. However, he

indicated that he could not lift heavy items or carry loads with

his left arm, but rather needed to use his (non-dominant) right

arm to do so. Id. at 49. He stated that he had recently taken

up crocheting, but that he could only crochet for a few rows at

a time before he needed to rest. Id. at 49-50. He stated that

he served as a secondary caregiver to his brother, who needed

assistance remembering things due to a traumatic brain injury.

Id. at 58. He testified that he was able to use his right arm

to perform light gardening tasks. Id.

Contrary to the contemporaneous clinical findings recorded

by the emergency room physicians (discussed above), Shaw

testified that immediately after his seizures his left arm had

been entirely paralyzed. Id. at 53-54. He testified that it

had only been after a lengthy period of time that he began to

regain mobility in his left arm, at which point he began

experiencing pain symptoms in his left shoulder and neck. Id.

at 54. Shaw further testified that, since his seizures, he had

experienced frequent confusion and short-term memory loss. Id.

at 54-55.

15 II. Medical Opinions Relating to Shaw’s Physical RFC

A. Treating Physician Assistant Starling

Shaw began consulting with treating physician assistant

Starling in March 2016, in connection with conditions not at

issue in this action. Id. at 963, 650-666. After Shaw’s PRES

diagnosis, Starling continued treating him for those prior

conditions and, in addition, for his reported upper left arm

weakness. Id. Shaw consulted with Starling every few months

during the period between his November 2017 PRES diagnosis and

November 29, 2018 (the date of the latest treatment note

appearing in the record).

On November 15, 2017—the date of Shaw’s first consultation

with Starling following his PRES diagnosis—she recorded that he

presented with “limited ambulation,” “irregular gait,” and

significant weakness in his left arm (rated at “maybe 2/5”).

Id. at 452. In connection with all of their subsequent

consultations, however, Starling consistently noted that Shaw

“ambulat[ed] normally” without recording any further observation

regarding his gait. Id. at 436, 439, 442, 445, 448, 650, 658,

661, 988, 991. Beginning May 9, 2018, Starling consistently

recorded that Shaw was getting regular moderate exercise through

physical therapy and walking two miles daily. Id. at 433, 653,

16 656, 660, 986, 990. Starling’s treatment notes do not otherwise

reference Shaw’s capacity to stand, sit, or walk.

On May 9, 2018, Starling observed that Shaw presented with

“normal” muscle tone and motor strength, and opined that his

limb weakness was likely secondary to spinal stenosis rather

than to PRES. Id. at 436. Starling nevertheless continued

discussing Shaw’s symptoms of muscle weakness with him over

subsequent consultations, without recording the details or

content of those discussions. Id. at 649, 652, 655, 659. In

connection with their final consultation on November 29, 2018,

Starling recorded that Shaw presented with full strength and no

sensory deficits. Id. at 1007-1009.

On January 10, 2019, Starling filled out a form provided to

her by Shaw’s counsel.4 Id. at 963-967, 980-984. On that form,

Starling indicated her opinion that Shaw could stand for two

hours at a time before needing to sit down or walk, could stand

or walk for about four hours total during an 8-hour working day,

and would need approximately six ten-minute breaks to walk

around during a workday. Id. at 965. She indicated that Shaw

would need a job that permitted shifting at will between

4 The ALJ found Starling’s January 10, 2019, medical opinion unpersuasive on both supportability and consistency grounds. Shaw now challenges the ALJ’s evaluation of Starling’s opinion.

17 standing, walking, and sitting, as well as unscheduled breaks at

least hourly. Id. She further opined that Shaw could

occasionally lift and carry ten pounds, rarely twenty pounds,

and never fifty pounds. Id. at 983. She opined that Shaw was

limited in his left (dominant) arm to gripping and twisting for

50% of a workday, to fine manipulation with his fingers for 50%

of a workday, and to reaching for 25% of a workday. Id. She

opined that he had no such limitations in his right arm. Id.

B. Examining Neurologist Dr. Rai

On January 25, 2019, examining neurologist Dr. Rai

conducted a neurological examination of Shaw. Id. at 1006-1009.

This was her sole contact with him as a patient. Id. at 975.

She found that he presented as alert and oriented, with

“[n]ormal bulk and muscle tone throughout.” Id. at 1007. After

examination, she opined that Shaw’s prognosis was “Good-Fair.”

Id. at 975. She recommended that he consider coming off

medications in the event a subsequent MRI showed his PRES

condition to be resolved, id. at 1007, as the follow-up MRI of

February 7, 2019 (discussed above), did in fact indicate, id. at

1010.

18 That same day, Dr. Rai filled out the same form as P.A.

Starling, likewise provided to her by Shaw’s counsel.5 Id. at

975-979. Unlike Starling, Dr. Rai opined that Shaw would not

require breaks to walk around during an 8-hour working day, and

would not need to shift at will between standing, walking and

sitting. Id. at 977. Dr. Rai offered no opinion that Shaw had

any limitations in his capacity to stand, walk, or sit. Id.

Dr. Rai opined to still greater limitations in Shaw’s

ability to lift and carry than Starling did, indicating that

Shaw could only rarely lift ten pounds and should never lift or

carry weight of 20 pounds or more. Id. at 978. Dr. Rai further

opined that Shaw could only rarely look up or down or turn his

head, and that he could never hold his head still. Id. Dr. Rai

opined that it was “unclear” whether Shaw had any limitation in

the percentage of a workday he could spend using his arms. Id.

C. Reviewing Consultative Physician Dr. Green

On July 17, 2018, consultative physician Dr. Green prepared

a report based on her review of Shaw’s medical record.6 Id. at

5 The ALJ found Dr. Rai’s January 25, 2019, medical opinion unpersuasive on both supportability and consistency grounds. Shaw now challenges the ALJ’s evaluation of Dr. Rai’s opinion.

6 The ALJ found Dr. Green’s July 17, 2018, medical opinion persuasive on both supportability and consistency grounds. Shaw now challenges the ALJ’s evaluation of Dr. Green’s opinion.

19 87-102. On the basis of her review, Dr. Green offered an

assessment of Shaw’s physical RFC specifically with regard to

his expected prognosis as of November 5, 2018, 12 months after

the onset of Shaw’s symptoms. Id. at 97.

In the course of discussing and summarizing the entire

longitudinal medical record, Dr. Green expressly opined that

Starling’s assessment of Shaw’s capacities was inconsistent with

her own clinical findings, in particular the results of her May

9, 2018, examination. Id. at 93. As noted, on May 9, 2018,

Starling opined that Shaw had normal muscle tone and motor

strength, and suggested that his physical examination on that

date was otherwise unremarkable. Id. at 93.

Differing from both Starling and Dr. Rai, Dr. Green opined

that Shaw could frequently lift or carry ten pounds and

occasionally lift or carry twenty pounds. Id. at 97. She

further opined that Shaw could stand or walk, with ordinary

opportunities for breaks, for more than six hours of an eight-

hour workday. Id. She also opined that Shaw was limited in his

ability to reach with his left arm, but was unlimited in his

ability to perform fine manipulation or to handle objects. Id.

at 97-98.

20 D. The ALJ’s Evaluation of the Opinions of Drs. Green and Rai and of Starling

As noted, the ALJ found that Dr. Green’s opinion was

supported by citations to relevant medical evidence and

consistent with the longitudinal evidence of record.7 Id. at 23.

The ALJ noted that Dr. Green’s assessment was as to Shaw’s

expected capacity as of a date twelve months after the alleged

disability onset date of November 6, 2017. Id. The ALJ noted

that Dr. Green supported her opinion with citations to medical

evidence, including the MRI evidence tending to indicate that

Shaw’s PRES had resolved. Id. In addition, the ALJ noted that

the medical evidence viewed as a whole tended to show fewer

deficits over time following the initial onset of symptoms. Id.

The ALJ further noted that the record established that Shaw

gradually ceased seeking medical care toward the end of the

twelve-month period. Id. Such evidence included the reported

progress Shaw made in physical therapy and his failure to

continue scheduling physical therapy appointments, id. at 810-

892, and the improvements in his MRI findings over time, id. at

307, 366-367, 1006, 1010. The ALJ concluded on supportability

7 Despite finding Dr. Green’s opinion persuasive overall, as noted the ALJ found that Shaw had greater limitations in his physical RFC than did Dr. Green. Id. at 15, 23. The ALJ found these greater limitations on the basis of Shaw’s testimony regarding his symptoms and of his primary treatment provider’s opinion that his left-arm weakness still persisted as of July 2018. Id. at 23.

21 and consistency grounds that Dr. Green’s opinion was persuasive.

Id.

The ALJ found Starling’s and Dr. Rai’s opinions less

persuasive. Id. at 23-25. As to P.A. Starling, the ALJ

evaluated her opinion as unpersuasive on both supportability and

consistency grounds. The ALJ found no indication of clinical

findings anywhere in the record to support Starling’s opinion as

to limitations on Shaw’s capacity to stand or walk, as to which

no other medical source offered a comparable opinion. Id. at

23-24. Indeed, the ALJ noted that the limitations on Shaw’s

ability to stand or walk were inconsistent with her own

treatment notes that he ambulated normally without indication of

abnormal gait (other than immediately following his seizures).

Id. at 24. He also found that her opinion as to significant

limitations in Shaw’s ability to manipulate objects and to

exhibit fine motor control was inconsistent with her own

clinical findings recorded after her last consultation with him.

Id. At that time (as noted), Starling found that Shaw presented

at full strength and without sensory deficits. Id. at 1007-

1009.

The ALJ also found Starling’s opinion to be inconsistent

with Shaw’s own self-reports of his daily activities. Id. at

24. The ALJ noted Shaw’s testimony that he was able to lift and

carry small loads of firewood with his right arm, id. at 49,

22 which he found inconsistent with the opinion that he could only

rarely lift twenty pounds, id. at 24.

As to Dr. Rai, the ALJ likewise found her opinion

unpersuasive on both supportability and consistency grounds.

Id. at 24-25. The ALJ noted that the deficits described in Dr.

Rai’s form opinion are not supported by corresponding clinical

findings in her neurological examination report, including in

particular her opinions as to the degree of weakness in Shaw’s

left arm and his near inability to move his neck. Id. at 24.

In addition, the ALJ found Dr. Rai’s opinion to be inconsistent

with Shaw’s reported activities of daily living, for the same

reasons discussed above in connection with Starling’s opinion.

Id. at 24-25.

Some of the evidence cited by the ALJ in support of her

evaluation of the relative persuasiveness of the opinions is

arguably equivocal, including perhaps in particular the ALJ’s

characterization of Shaw’s improvement in physical therapy.

However, the ALJ applied the proper legal standards in

evaluating the persuasiveness of the opinions and cited to

substantial evidence in support of her findings. As noted, the

role of the court on judicial review is strictly “limited to

determining whether the ALJ deployed the proper legal standards

and found facts upon the proper quantum of evidence.” Nguyen,

. To the extent there are conflicts in the

23 evidence, it is for the ALJ, and not for the court, to resolve

them. See Irlanda Ortiz v. Sec'y of Health & Human Servs.,

(1st Cir. 1991). Because a reasonable mind could,

on the evidence discussed by the ALJ, find that Dr. Green’s

opinion was better supported by citations to objective medical

evidence and more consistent with the medical record as a whole

than the opinions of Starling and Dr. Rai, no grounds exist for

the court to disturb the Commissioner’s final decision. See

Purdy,

.

III. Medical Opinions Relating to Shaw’s Mental RFC

A. Consultative Psychologist Dr. Griffin

On June 27, 2018, Shaw was examined by consultative

psychologist Dr. Griffin. Admin. Rec. at 506-511. Shaw arrived

unaccompanied and on time for the examination. Id. at 506. Dr.

Griffin found Shaw cooperative with the assessment process. Id.

at 508. On July 10, 2018, Dr. Griffin prepared an evaluation

report on the basis of her examination.8 Id. at 506-511.

In her report, Dr. Griffin noted Shaw’s self-reported

symptoms of confusion and short-term memory problems since

receiving his PRES diagnosis. Id. at 507. She further noted

8 The ALJ found Dr. Griffin’s July 10, 2018, medical opinion unpersuasive on both supportability and consistency grounds. Shaw now challenges the ALJ’s evaluation of Dr. Griffin’s opinion.

24 his description of struggles with depression and post-traumatic

stress disorder for which he had never sought therapy and which

he characterized as “in check” at the time of examination. Id.

at 508.

Dr. Griffin assessed Shaw’s thought processes as “generally

logical and goal-directed,” his verbal intellectual functioning

in the normal range, and his nonverbal intellectual functioning

as marginally within the normal range but borderline impaired.

Id. at 508-509. She found that his areas of cognitive weakness

involved measures of “auditory attention/working memory and

visuospatial reasoning,” and opined that his performance in

these areas was “significantly below expectations” based on his

performance in other areas. Id. at 509.

Dr. Griffin further opined that Shaw was “generally capable

of understanding and remembering verbal material (i.e., spoken

and written instructions) but does not appear capable of

understanding and remembering visual/nonverbal material

consistently.” Id. at 510. She opined that “this may have an

adverse impact upon his ability to learn and remember

information that is visual in nature.” Id.

Dr. Griffin additionally indicated her opinion that Shaw

“d[id] not appear capable of consistently attending to work-

related tasks at th[e] time [of examination],” although she

stated that he appeared “capable of adequate processing speed”

25 for purposes of the tasks he performed in connection with her

assessment. Id. at 511.

Dr. Griffin found that Shaw was “polite and cooperative”

throughout the evaluation. Id. at 510. She expressly opined

that he would be “able to relate to/work with individuals in a

work setting without significant difficulty.” Id.

Dr. Griffin stated that prognosis as to the length of

treatment Shaw would require was “unclear at th[e] time [of

examination].” Id. She stated that her evaluation of his

cognitive symptoms had been “very limited” and that his symptoms

should be “monitored over time.” Id.

B. Treating Social Worker Wizmer

Shaw began consulting with Wizwer, a social worker and an

associate of P.A. Starling, in July 2018. Id. at 721. She saw

Shaw weekly thereafter, through at least early January 2019.

Id.

On January 3, 2019, Wizwer filled out a form provided to

her by Shaw’s counsel in this action.9 Id. at 721-726. Through

her entries on the form, Wizwer described the clinical findings

that demonstrated the severity of Shaw’s mental impairments as

9The ALJ found Wizwer’s January 3, 2019, medical opinion unpersuasive on both supportability and consistency grounds. Shaw now challenges the ALJ’s evaluation of Dr. Griffin’s opinion.

26 “ruminating thoughts, anxiety, sleep distur[b]ance, and

nightmares.” Id. at 721. She offered her opinion that Shaw had

extreme limitations in concentration, persistence, and pace,

marked limitations in his ability to understand, remember, or

apply information and his ability to interact with others, and

moderate limitations in his ability to adapt or manage himself.

Id. at 723. In stark contrast with Dr. Griffin’s assessment of

Shaw’s social skills, Wizmer opined that he had extreme

limitations in his ability to travel in unfamiliar places,

marked limitations in his ability to interact appropriately with

the general public and to use public transportation, and

moderate limitations in his ability to maintain socially

appropriate behavior. Id.

Wizmer further opined that Shaw had extreme limitations in

his ability to understand and remember detailed instructions,

marked limitations in his ability to carry out detailed

instructions, and moderate limitations in his ability to make

independent plans and to deal with the stress of semiskilled or

skilled work. Id. at 724. She opined that Shaw was likely to

be absent from work approximately four days per month due to his

impairments and/or need for treatment. Id. at 725.

Wizmer expressly opined that Shaw’s symptoms had been

present since November 6, 2017. Id.

27 C. Consultative Psychiatrist Dr. Kleinman

On July 12, 2018, consultative psychiatrist Dr. Kleinman

prepared a report based on his review of Shaw’s medical record.10

Id. at 87-102. Dr. Kleinman offered an assessment of Shaw’s

mental RFC specifically with regard to his expected prognosis as

of November 5, 2018, 12 months after the onset of Shaw’s

symptoms. Id. at 98.

Dr. Kleinman noted the results of Dr. Griffin’s

consultative examination, and observed that the record contained

indications that Shaw was “continuing to improve as expected”

from PRES. Id. at 96. He broadly agreed with Dr. Griffin that

the medical evidence established that Shaw had limitations in

understanding and memory, but disagreed with Dr. Griffin as to

the severity of those limitations. Id. at 98. Specifically, he

opined that Shaw had marked limitations in his ability to

understand and remember detailed instructions, and moderate

limitations in his ability to understand and remember short,

simple instructions. Id. at 99. In addition, he opined that

Shaw had only moderate limitations in concentration,

persistence, and pace, no social interaction limitations, and no

adaptation limitations. Id.

10The ALJ found Dr. Kleinman’s July 12, 2018, medical opinion persuasive on both supportability and consistency grounds. Shaw now challenges the ALJ’s evaluation of Dr. Kleinman’s opinion.

28 D. The ALJ’s Evaluation of the Opinions of Drs. Kleinman and Griffin and of Wizmer

As noted, the ALJ found that Dr. Kleinman’s opinion was

well supported by citations to relevant medical evidence and

consistent with the longitudinal evidence of record.11 Id. at

23. The ALJ noted that Dr. Kleinman’s assessment was of Shaw’s

expected capacity as of a date twelve months after his alleged

disability onset date of November 6, 2017, and therefore took

into account expected improvement in Shaw’s cognitive capacities

as he continued to recover from the effects of PRES. Id. The

ALJ noted that Dr. Kleinman supported his opinion with citations

to medical evidence, including evidence of unremarkable mental

status examinations. Id. In addition, the ALJ stated that Dr.

Kleinman’s opinion was consistent with the absence of any

clinical findings of record regarding significant cognitive or

memory defects. Id.

The ALJ found Dr. Griffin’s opinion less persuasive,

although, as noted, she incorporated portions of Dr. Griffin’s

opinion into her assessment of Shaw’s mental RFC. Id. at 25.

Despite finding Dr. Kleinman’s opinion persuasive 11

overall, the ALJ found more persuasive some of Dr. Griffin’s findings not incorporated into Dr. Kleinman’s opinion, id., specifically her findings regarding Shaw’s limitations in his ability to understand spoken instructions, id. at 510. As noted, the ALJ included those limitations in her assessment of Shaw’s mental RFC. Id. at 15.

29 However, she found Dr. Griffin’s opinion as to the severity of

Shaw’s memory and verbal comprehension deficits to be

inconsistent with Shaw’s score within the normal range on the

mini-mental status examination that Dr. Griffin herself

administered, id. at 508. Id. at 25. She also found that same

portion of Dr. Griffin’s opinion to be inconsistent with Shaw’s

self-reported abilities to act as a secondary care-giver to his

brother and to garden. Id. In addition, she found Dr.

Griffin’s opinion as to Shaw’s limitations in concentration,

persistence, and pace to be inconsistent with Shaw’s self-

reported ability to crochet. Id.

As to Wizmer, the ALJ found her opinion to be simply

unpersuasive. Id. The ALJ noted that Wizmer’s opinion did not

include express references to supporting medical evidence. Id.

Indeed, the ALJ found that Wizmer’s opinion was internally

inconsistent, in that Wizmer opined that Shaw’s symptoms had

been present some eight months before Shaw began consulting with

her. Id. at 25-26.

In addition, the ALJ found Wizmer’s opinion to be

inconsistent with other evidence of record. Id. In particular,

the ALJ found that Wizmer’s opinion as to limitations in Shaw’s

ability to conduct himself socio-emotionally were entirely

inconsistent with the findings of all other medical sources of

record, with all relevant clinical findings in the record, with

30 Shaw’s reports to his caregivers, and with his reported daily

activities. Id. The ALJ found that Wizmer’s opinion regarding

limitations in Shaw’s concentration, persistence, and pace and

in his ability to adapt and manage himself was inconsistent with

Shaw’s self-reported activities and with his performance on

mental status examinations of record. Id. at 26.

Again, some of the evidence cited by the ALJ in support of

her evaluation of the relative persuasiveness of the opinions is

arguably equivocal. Nevertheless, it is clear that the ALJ

applied the proper legal standards to evaluating the

persuasiveness of the opinions and cited to substantial evidence

in support of her findings. Because a reasonable mind could, on

the evidence discussed by the ALJ, find that Dr. Kleinman’s

opinion was better supported by citations to objective medical

evidence and more consistent with the medical record as a whole

than the opinions of Dr. Griffin and Wizmer, no grounds exist

for the court to disturb the Commissioner’s final decision. See

Purdy,

.

CONCLUSION

For the foregoing reasons, Shaw’s motion to reverse (doc.

no. 7) is denied, and the Commissioner’s motion to affirm (doc.

31 no. 9) is granted. The clerk of the court shall enter judgment

in accordance with this order and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

June 10, 2020

cc: Counsel of Record

32