UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Samuel Brooks

v. Civil No. 19-cv-1060-LM Opinion No.

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

O R D E R

Pursuant to

(g), Samuel Brooks seeks

judicial review of the decision of the Commissioner of the

Social Security Administration denying his application for

disability insurance benefits (”DIB”). Brooks 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

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.

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

(1987). The claimant “has the burden of production and proof

2 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.

(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), 404.1545(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.

§ 404.1520(a)(4)(iv). If

the claimant can perform his past relevant work, the ALJ will

find that the claimant is not disabled. See id. 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 jobs exist in the economy which the claimant can do in

light of his RFC. See id. § 404.1520(a)(4)(v).

3 PROCEDURAL HISTORY

Brooks filed an application for disability insurance

benefits on May 16, 2016. He initially alleged a disability

onset date of January 1, 2016, which he subsequently amended to

December 31, 2015. He alleged that he was disabled due to

epilepsy, arthritis, “back issues,” and high blood pressure.

Brooks met the insured status requirements of the Act through

March 31, 2017.

After the Administration denied Brooks’s application on May

11, 2017, Brooks requested a hearing before an ALJ. The ALJ

held an initial hearing on March 16, 2018, and a second hearing

on December 12, 2018. Brooks testified at both hearings.

Brooks’s wife also testified at the first hearing, and reviewing

consultative physician John F. Kwock, M.D., and impartial

vocational expert Susan Howard also testified at the second.

The ALJ issued an unfavorable decision on December 27,

2018. She found that Brooks had a combination of severe

impairments consisting of degenerative disc disease,

degenerative joint disease, seizure disorder, depression,

obesity, and borderline intellectual functioning.1 She did not

1 The ALJ did not find that Brooks’s other medical conditions of record, specifically asymptomatic mitrial valve regurgitation and alcohol abuse in remission, caused or contributed to any severe impairments in Brooks’s functional capacities.

4 find that Brooks’s combination of impairments met or equaled the

severity of the impairments listed at

, Subpart

P, Appendix 1.

In addition to findings regarding Brooks’s mental RFC,

which Brooks does not now challenge, the ALJ found that:

[T]hrough [his] date last insured, [Brooks] had the [physical] residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except th[at he] can sit up to 6 hours and stand/walk up to 6 hours in an eight-hour day. He can frequently push/pull with the lower extremities. He can occasionally climb ramps and stairs, and never climb ladders, ropes or scaffolds. He can occasionally balance, stoop, kneel, and crouch, and can never crawl. He should avoid work around unprotected heights and heavy machinery.

Admin. Rec. at 24-25.

In connection with her assessment of Brooks’s physical RFC,

the ALJ afforded great weight to the opinion of reviewing

consultative physician Dr. Kwock. She afforded “partial” weight

to the opinion of reviewing agency physician Louis Rosenthall,

M.D., specifically affording “great weight” to his opinion

regarding Brooks’s physical RFC in general, but “little weight”

to his opinion that Brooks’s back-related impairments were not

severe. The ALJ afforded little weight to the opinion of

Brooks’s treating physician Dennis Badman, M.D. She did not

expressly address the opinion of examining consultative

physician Frank Graf, M.D.

5 In response to hypothetical questions posed by the ALJ,

Howard, the impartial vocational expert, testified to her

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

experience, and RFC could perform the job duties of a cleaner, a

price marker, and a garment folder. Based on this testimony,

the ALJ found at Step Five of the sequential process that Brooks

had not been disabled for purposes of the Social Security Act at

any time between his alleged onset date of December 31, 2015,

and his date last insured of March 31, 2017.

On August 26, 2019, the Appeals Council denied Brooks’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

Brooks argues that the ALJ erred in affording greater

weight to the opinions of reviewing consultative physician Dr.

Kwock and reviewing agency physician Dr. Rosenthall than to that

of treating physician Dr. Badman. Brooks further argues that

the ALJ erred in failing to address the opinion of examining

consultative physician Dr. Graf. The court addresses these

arguments below.

6 I. Background

A detailed recital of Brooks’s medical history can be found

in Brooks’s statement of facts (doc. no. 10) as supplemented by

the Commissioner’s statement of facts (doc. no. 12), and in the

transcript of the administrative record (doc. nos. 6, 8). The

court provides a summary of the material medical history and

other material background information here.2

A. Brooks’s Work History

Brooks owned and operated his own flooring installation

business from 1984 to 2011. Admin. Rec. at 212-220, 229-236.

From 2011 through at least March 16, 2018, the date of the first

hearing before the ALJ, he owned and operated his own firewood

business.

Brooks reported that as of January 2016, he was

working 8-10 hours per day and 5-6 days per week operating the

firewood business.

. This work entailed cutting down

trees, transporting felled trees on a skidder, delimbing the

trunks, transporting them by truck, and cutting and splitting

them for firewood.

As of March 16, 2018, Brooks reported

that he continued to perform such work as permitted by his pain

2 Brooks’s assignments of error exclusively address the ALJ’s consideration of medical opinions dating from after his date last insured. To provide context for discussion of Brooks’s arguments, the court summarizes the material medical records and other record evidence dating from prior to his date last insured.

7 symptoms, or approximately 20-30 hours per month.

at 829-

831, 839, 844.

B. Brooks’s Medical History: Prior to His Alleged Disability Onset Date

The record suggests that Brooks may have begun suffering

chronic lower back pain beginning in or around 2001. During a

June 2017 consultation at a pain clinic, Brooks reported to his

treating nurse that although his condition had recently worsened

after he suffered a fall, he “ha[d] had th[e] pain [in his lower

back] for over 15 years.” Id. at 404. Moreover, although the

earliest available medical record that addresses Brooks’s back

pain symptoms is dated May 18, 2015, id. at 306, at that time

Brooks was already on an established regimen of oxycodone for

control of those symptoms, id. at 306-309.

On January 6, 2015, Brooks reported to his treating nurse

that he had recently begun experiencing a metallic taste in his

mouth. Id. at 319-322, 347-350. As discussed below, Brooks’s

treatment providers later determined that this symptom was

indicative of a possible seizure disorder.

On May 18, 2015, Brooks reported to his nurse that his

lower back pain had worsened to the point that he was

considering applying for disability benefits. Id. at 306.

8 Following an imaging study that same day, Brooks was diagnosed

with degenerative disc disease of the lumbar spine. Id. at 340.

On June 22, 2015, Brooks reported that he had been

experiencing episodes of “spacing out,” during which he would

stop talking mid-conversation and stare into space. Id. at 276-

279, 302-305, 342-346. On September 1, 2015, he reported that

these episodes were occurring in conjunction with his experience

of a metallic taste in his mouth. Id. at 299-301.

On October 14, 2015, Brooks consulted with neurologist

Rohit Marawar, M.D. Id. at 272-275, 332-335. Although at that

time Brooks had never suffered a classic seizure, Dr. Marawar

advised him that his symptoms of “spacing out” with a metallic

taste in his mouth were consistent with a diagnosis of epilepsy.

Id.

C. Brooks’s Medical History: Between His Alleged Disability Onset Date and His Date Last Insured

As noted, Brooks applied for disability benefits on May 16,

2016. Id. at 176-182. He initially alleged disability as of

January 1, 2016, later amending his alleged onset date to

December 31, 2015.

On June 16, 2016, Brooks had a seizure while driving—his

first “classic” seizure—in the course of which he crashed his

car into a telephone pole. Id. at 352-357, 372. After

9 recovering consciousness, he was highly confused for several

minutes. Id. His driver’s license was suspended after the

incident. Id.

On June 20, 2016, Brooks’s wife filled out a Function

Report in support of Brooks’s DIB application. Id. at 221-228.

In that report, she indicated that Brooks’s daily routine was to

drive to a job site, cut trees, load cut wood into trucks, drive

the load home, and cut the load into firewood. Id. at 222. She

expressed her concern that, in light of his seizure four days

previously, it was no longer safe for him to drive on the roads,

to operate a log skidder, or to be alone out in the woods

operating a chain saw. Id. at 221, 228. She indicated that

while he had always been able to work through pain symptoms in

the past, the seizure and his resulting inability to drive

marked a “turning point” that she felt prevented him from being

able to work. Id. at 226, 228.

Brooks had a second seizure on July 23, 2016. Id. at 372-

375, 430-445. That same day, Brooks underwent an MRI study, the

findings of which were broadly normal. Id. Blood tests

established that he was extremely low in sodium. Id. After

Brooks reported to emergency room care providers that he had

consumed at least 18 beers a day for the last several years,

those care providers opined that his hyponatremia (low sodium)

was likely a consequence of his excessive beer consumption. Id.

10 They further opined that his seizures might have been caused by

hyponatremia rather than by epilepsy or another seizure

disorder. Id.

In September 2016, Brooks consulted with examining

neurologist George P. Thomas, M.D. Id. at 372-375. Dr. Thomas

opined that it was possible that Brooks’s “staring spells,” in

which he would stop talking mid-conversation, “might be absence

seizures or very well could be behavioral” in origin, while his

more recent experience with classic seizures “sounds very much

like an epileptic seizure[], but seems to have been provoked by

hyponatremia.” Id. at 374.

On February 7, 2017, Brooks underwent an X-Ray study of his

lumbar spine. Id. at 402, 514. That study showed “slight

interval compression” relative to the study of May 18, 2015,

which underlay his diagnosis with degenerative disc disease.

Id.

As noted, Brooks’s date last insured was March 31, 2017.

D. Brooks’s Medical History: After His Date Last Insured

On May 3, 2017, consultative physician Dr. Frank Graf

examined Brooks. Id. at 398-400. Although his examination was

largely orthopedic and focused on symptoms and impairments

associated with Brooks’s degenerative disc disease, Dr. Graf

additionally noted that Brooks presented with irregularities in

11 his extraocular eye motions and in ocular responsiveness to

light. Id. at 399. Dr. Graf opined that these irregularities

were indicative of underlying neurological abnormalities. Id.

On the basis of his physical examination, Dr. Graf

concluded that:

[Brooks] is substantially impaired in basic functional movement patterns referencing the lumbosacral spine and there is a disorder of concentration and pace and motor functions. This has not been specifically diagnosed but has been considered to be a seizure disorder.

Id. at 400. Brooks now observes, correctly, that the ALJ failed

to address Dr. Graf’s opinion in her written decision.

On May 11, 2017, agency physician Dr. Rosenthall reviewed

Brooks’s medical record.3 Id. at 69-79. On the basis of his

review, Dr. Rosenthall assessed Brooks’s physical RFC,

specifically with reference to the period between his amended

alleged disability onset date of December 31, 2015, and his date

last insured of March 31, 2017. Id. at 69-79. Dr. Rosenthall

found that Brooks’s impairments relating to his possible seizure

disorder were severe. Id. at 76-77. Dr. Rosenthall concluded,

however, apparently on the basis of Brooks’s activities of daily

living (including wood-cutting and walks of at least half a mile

3 Dr. Rosenthall expressly considered and gave weight to Dr. Graf’s medical opinion. Id. at 70, 73-74.

12 without assistance), that the impairments relating to his

degenerative disc disease were not severe. Id.

Dr. Rosenthall specifically opined that Brooks could

occasionally lift 20 pounds and frequently lift ten pounds, that

he could stand or walk for about six hours of an eight-hour

workday, and that he could sit for about six hours of a workday.

Id. at 75. He opined that Brooks could occasionally climb ramps

or stairs, balance, stoop, kneel, crouch, or crawl, but that,

due to his seizure disorder, he should never climb ladders,

ropes, or scaffolds or be exposed to hazards of any kind. Id.

The ALJ gave great weight to Dr. Rosenthall’s opinion,

except that she gave little weight to his opinion that Brooks’s

impairments related to his degenerative disc disease and

associated back pain were not severe. Brooks now argues that

the ALJ erred in affording great weight to any portion of Dr.

Rosenthall’s opinion.

Also on May 11, 2017, in part on the basis of Dr.

Rosenthall’s assessment of Brooks’s physical RFC, the

Administration found Brooks not disabled and denied his DIB

application. Id. at 80-81. The Administration’s stated basis

for the denial was that Brooks’s medical records supported the

determination that he was physically capable of work at the

light exertional level. Id. at 81. Brooks requested a hearing

before an ALJ to reconsider the Administration’s decision.

13 On June 9, 2017, Brooks began seeking treatment at a pain

clinic where, as noted, he reported that his chronic back pain

of 15 years had recently worsened after a fall.4 Id. at 404.

Brooks received treatment from the pain clinic from June 2017

through at least February 2018. Id. at 402-429, 634-659.

During that time, Brooks underwent regular physical examinations

by John Kane, A.P.R.N., C.R.N.A. Id. Nurse Kane consistently

and regularly found that Brooks’s gait and station were normal,

and that he had normal strength and normal range of motion in

both arms and both legs. Id. at 405-406, 409-410, 414, 417,

420-421, 423-424, 427, 635-636, 639-640, 643-644, 647-648, 651-

652, 655.

On June 26, 2017, Kane referred Brooks for an MRI of his

lumbar and sacral spine. Id. at 446-447. The study revealed

mild lumbar disc space narrowing and severe sacrolumbar disc

space narrowing, mild to moderate disc bulges, and normal

vertebral bodies without evidence of compression. Id.

On July 31, 2017, Brooks consulted with Dr. Badman. Id. at

717-718, 767-768. This was Brooks’s first consultation with Dr.

Badman following a 15- to 17-year hiatus in their treatment

relationship. Id. Brooks advised Dr. Badman that he was re-

establishing care because he had “been denied for disability and

4 There is no other mention of this fall elsewhere in the record.

14 was told it was because his current providers are not MD’s.”

Id. at 717, 767. At that consultation, Dr. Badman’s examination

did not disclose any material health issues. Id. at 718, 768.

To the contrary, Dr. Badman expressly noted that Brooks’s gait

was “good” without assistance. Id. However, Dr. Badman

recorded that he had “concerns” regarding Brooks’s reported

chronic low back pain. Id.

On September 10, 2017, Brooks suffered three “classic”

seizures, the third of which occurred while he was under

observation at the emergency room. Id. at 448-497. A CT scan

of the head following the seizures revealed no abnormalities.

Id. at 465, 478.

Brooks attended a follow-up appointment with Dr. Badman on

September 14, 2017. Id. at 715-716, 765-766. On physical

examination, Dr. Badman noted no material health issues but

rather observed that Brooks ambulated normally without

assistance and that his extremities were “unremarkable and

symmetric.” Id. On a return visit of October 11, 2017, Brooks

reported feeling well, and Dr. Badman again recorded no material

health issues, observing that Brooks was ambulating normally

without assistance and that he presented with unremarkable,

symmetric extremities. Id. at 712, 762. In connection with

both the consultation of September 14 and that of October 11,

2017, Dr. Badman expressly noted that he had not had the

15 opportunity to review any of Brooks’s medical records from his

other care providers. Id. at 712, 715-716, 762, 765-766.

Brooks returned to Dr. Badman on February 24, 2018, “to

review and complete disability paperwork for his attorney.” Id.

at 711, 761. Again, Dr. Badman’s treatment notes record no

observations of material health issues. Id. Dr. Badman also

expressly noted once again that he had not had an opportunity to

review any of Brooks’s other medical records. Id. That same

day, Dr. Badman filled out a medical opinion form provided by

Brooks’s attorney. Id. at 660-664.

On the attorney-provided form, Dr. Badman opined that, due

to his degenerative disc disease and associated back pain,

Brooks was able to sit or stand for only fifteen minutes before

needing to change his posture, that in an eight-hour work day

Brooks would be able to sit, stand, or walk for a total of less

than two hours, and that he would need to walk for five minutes

every fifteen minutes. Id. at 661-662. He opined that while

“engaging in occasional standing/walking,” Brooks would need to

use a cane or other assistive device, and that he could not walk

farther than a single city block “without rest or severe pain.”

Id.

Regarding the use of Brooks’s arms, Dr. Badman opined that

he could only reach with his right arm for 75% of a workday and

with his left arm for 50% of a workday. Id. at 663. He opined

16 that Brooks could occasionally carry ten pounds and never any

greater weight. Id. He further opined that Brooks could

occasionally twist or climb stairs, but never stoop, crouch, or

climb ladders. Id.

Dr. Badman opined that Brooks would need to take frequent

unscheduled five-minute breaks during a working day, id. at 662,

that he would likely require more than four absences from work

per month, id. at 664, and that he was capable of only “low

stress jobs,” id. at 661. He opined that Brooks’s “experience

of pain and other symptoms” would “frequently” interfere with

his ability to focus and concentrate on work-related tasks. Id.

at 661.

Finally, Dr. Badman opined that all of Brooks’s impairments

had “existed since the claimant’s alleged onset date of

12/31/2015.” Id. at 660. Brooks now argues that the ALJ erred

in affording little weight to Dr. Badman’s opinion of February

24, 2018.

The initial hearing before the ALJ took place on March 16,

2018. Id. at 820-875. At that hearing, Brooks testified (inter

alia) that he spent twenty or thirty hours per month cutting and

splitting firewood and operating a logging skidder. Id. at 829-

831, 839, 844.

On June 1, 2018, agency psychologist Thomas F. Burns,

Ph.D., performed IQ and other psychological testing on Brooks.

17 Id. at 719-725. Dr. Burns described Brooks as “very fit

looking” with “unremarkable” gait and posture. Id. at 719.

Brooks reported to Dr. Burns that, as of that time, he was happy

that “his work enable[d] him to be in the woods, generally by

himself, operating a skidder as a part of his own logging

operation.” Id. at 723.5

A second hearing took place before the ALJ on December 12,

2018. Id. at 41-68. At that hearing, reviewing orthopedic

surgeon Dr. Kwock testified. Id. at 46-55. Dr. Kwock opined

based on his review of Brooks’s medical records that Brooks

suffered from degenerative disc and joint disease of the lumbar

spine. Id. at 46-47. He noted that the MRI of June 2017 showed

only mild degenerative changes in Brooks’s lumbar spine, and

opined that because the “severe” disc narrowing of his

sacrolumbar spine had caused only a “mild” bulge, Brooks’s disc

disease would not be expected to prevent him from working at the

light exertional level. Id. at 48-49. Specifically, he offered

his opinion that, as of the alleged onset date of December 31,

2015, Brooks could lift ten pounds frequently and twenty pounds

occasionally and could sit or stand/walk for six hours of an

eight-hour work day. Id. at 49. He testified that Brooks had

5 On the basis of the tests he administered, Dr. Burns provided an opinion regarding Brooks’s mental RFC. The ALJ afforded great weight to Dr. Burns’ opinion, and Brooks does not challenge the ALJ’s assessment of his mental RFC.

18 no limitations in overhead or other reaching with his arms. Id.

He further testified that Brooks could frequently balance,

kneel, or climb stairs and ramps, occasionally crouch or climb

ladders or scaffolds, and never crawl. Id. He stated that

Brooks could occasionally work near heavy machinery or in

unprotected, exposed environments.

Dr. Kwock expressly opined that the record did not contain

any medical evidence “that would even come close” to supporting

Dr. Badman’s opinion that Brooks would be limited to sedentary

work or to sitting, standing, or walking for less than two hours

of an eight-hour work day. Id. at 50. He specifically noted

that Brooks’s MRI revealed none of the “[i]mpingements upon

neurological elements” that would be expected to cause severe

pain symptoms. Id. at 53-54. Dr. Kwock acknowledged, however,

that Brooks’s degenerative changes could cause pain, that pain

manifestation varies extremely widely across individuals, and

that pain is subjective. Id. at 51. He further acknowledged

that none of Brooks’s treating sources had ever suggested that

Brooks might be malingering or otherwise exaggerating his

subjective experience of pain. Id. at 54.

Dr. Kwock stated that his opinion testimony was offered

only as to limitations arising in connection with Brooks’s

degenerative disc disease, and not in connection with his

possible seizure disorder, which was outside Dr. Kwock’s area of

19 specialty. Id. at 55. Brooks now argues that the ALJ erred in

affording great weight to Dr. Kwock’s opinion testimony, in

large part because Dr. Kwock declined to opine as to limitations

caused by Brooks’s seizure disorder.

II. ALJ’s Consideration of Medical Opinions

“An ALJ is required to consider opinions along with all

other relevant evidence in a claimant’s record.” Ledoux v.

Acting Comm’r, Soc. Sec. Admin., Case No. 17-cv-707-JD,

, at *4 (D.N.H. June 12, 2018). “Medical opinions are

statements from acceptable medical sources that reflect

judgments about the nature and severity of [the claimant’s]

impairment(s), including [the claimant’s] symptoms, diagnosis

and prognosis, what [the claimant] can still do despite

impairment(s), and [the claimant’s] physical or mental

restrictions.”

(a)(1).

The ALJ analyzes the opinions of state agency consultants,

examining sources, and treating sources under the same rubric.

See id.;

(c). The ALJ must consider “the

examining relationship, treatment relationship (including length

of the treatment relationship, frequency of examination, and

nature and extent of the treatment relationship), supportability

of the opinion by evidence in the record, [and] consistency with

the medical opinions of other physicians,” along with the

20 doctor’s expertise in the area and any other relevant factors.

Johnson v. Berryhill, Case No. 16-cv-375-PB,

, at

*5 (D.N.H. Oct. 12, 2017).

A. Treating Physician Dr. Badman

The ALJ afforded little weight to Dr. Badman’s medical

opinion of February 24, 2018, on the ground that it was

inconsistent with other medical evidence of record and

unsupported by Dr. Badman’s own clinical findings and

examination notes. Admin. Rec. at 30-31. Brooks argues,

without significant analysis, that the ALJ’s asserted grounds

are legally insufficient to support the weight she assigned to

Dr. Badman’s medical opinion. The court disagrees.

“[T]reating physicians' opinions are ordinarily accorded

deference in Social Security disability proceeding.” Richards

v. Hewlett–Packard Corp.,

, 240 n. 9 (1st Cir.

2010). This is because “these sources are likely to be the

medical professionals most able to provide a detailed,

longitudinal picture of [the claimant’s] medical impairment(s)

and may bring a unique perspective to the medical evidence that

cannot be obtained from the objective medical findings alone or

from reports of individual examinations, such as consultative

examinations or brief hospitalizations.”

(c)(2). A treating-source opinion is entitled to

21 controlling weight if it is “well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is

not inconsistent with the other substantial evidence in [the

claimant’s] case record.”

(c)(2). If,

however, the treating-source opinion conflicts with other

opinions in the record, the ALJ “may reject the opinion of the

treating physician so long as an explanation is provided and the

contrary finding is supported by substantial evidence.”

Tetreault v. Astrue,

(D. Mass. 2012)

(internal quotation marks, citation omitted).6

Here, the ALJ considered the mandated factors, provided

good reasons for affording little weight to Dr. Badman’s

February 24, 2018, opinion, and supported her contrary findings

with substantial evidence. First, the ALJ noted that Brooks and

Dr. Badman had a previous treatment relationship, and that

Brooks re-established care with Dr. Badman after a 15-year

hiatus on July 31, 2017, four months after Brooks’s date last

insured. Admin. Rec. at 28. She discussed in detail each of

Brooks’s consultations with Dr. Badman between July 31, 2017,

6 An ALJ must give “good reasons” for rejecting a treating source’s opinion.

(c)(2); see also Polanco– Quinones v. Astrue,

(1st Cir. 2012) (unpublished disposition). Reasons are “good” for this purpose if they are specific, supportable, and provide a rationale that a reasonable mind could accept. See Dimambro v. U.S. Soc. Sec. Admin., Case No. 16-cv-486-PB,

, *10 (D.N.H. Jan. 5, 2018).

22 and February 24, 2018, summarizing Dr. Badman’s material

clinical findings from each examination during that period. Id.

at 28-29. The ALJ correctly noted that Dr. Badman had not

reviewed any of Brooks’s medical records from other providers at

the time he offered his opinion. Id. at 29.

The ALJ noted, also correctly, that Dr. Badman’s

contemporaneous treatment and examination notes did not contain

clinical findings that could have supported his opinion

regarding Brooks’s impairments. Id. at 31. As noted above, Dr.

Badman recorded no clinical findings indicative of any

significant impairments. Id. at 711-716, 761-766. To the

contrary, in connection with each examination he performed, he

recorded his observations that Brooks’s gait was normal and/or

that he ambulated without need for assistance, and that his

extremities were unremarkable and symmetric. Id. By contrast,

Dr. Badman opined on the attorney-provided form that Brooks

would need a cane or other assistive device to walk, that he

could not walk for more than a single city block without rest or

extreme pain, that despite this limitation he would need to walk

for five minutes out of every fifteen minutes during an eight-

hour work day, that he could sit still for less than two hours

out of eight and could stand or walk for less than two hours out

of eight, and that he had asymmetrical limitations in his

ability to reach with his arms. Id. at 660-664. The ALJ

23 correctly observed that Dr. Badman’s opinion as to Brooks’s

impairments finds no support in his own clinical findings—the

only medical evidence available to Dr. Badman at the time he

offered his opinion.

The ALJ also correctly noted that Dr. Badman’s opinion was

inconsistent with other medical evidence of record, perhaps in

particular the opinions of reviewing agency physicians Drs.

Kwock and Rosenthall. Id. at 31. Both of those physicians

opined, on the basis of supporting medical evidence, that Brooks

was capable of work at the light exertional level and could sit,

stand, or walk for six hours out of eight. Id. at 46-55, 69-79.

The ALJ also noted that Nurse Kane’s physical examinations from

June 2017 through February 2018 were inconsistent with Dr.

Badman’s opinion. Id. at 27-28. Kane consistently found that

Brooks presented with normal gait and station, and normal

strength and range of motion in both arms and both legs. Id. at

405-406, 409-410, 414, 417, 420-421, 423-424, 427, 635-636, 639-

640, 643-644, 647-648, 651-652, 655.

Finally, the ALJ supported her contrary findings regarding

Brooks’s physical RFC with substantial medical evidence. As

discussed in greater detail below, the ALJ assessed Brooks’s

physical RFC consistently with portions of the medical opinions

of Drs. Kwock and Rosenthall. Id. at 24-27, 29-30. The ALJ

discussed those physicians’ opinions in detail, as well as the

24 clinical findings that supported them (including the June 2017

MRI study). Id.

Brooks has not shown that the ALJ erred in weighing Dr.

Badman’s medical opinion. To the contrary, the ALJ provided

good reasons for rejecting Dr. Badman’s opinion and provided

record evidence to support her contrary findings. Because the

ALJ deployed the proper legal standards and based her

conclusions on substantial medical evidence of record, no

grounds exist for disturbing the Commissioner’s final decision

based on the weight the ALJ afforded Dr. Badman’s February 24,

2018, opinion.

B. Reviewing Agency Physician Dr. Rosenthall

The ALJ afforded little weight to one portion of Dr.

Rosenthall’s opinion of May 11, 2017, and great weight to the

remainder. Specifically, to the extent that Dr. Rosenthall

opined that Brooks’s impairments in connection with his

degenerative disc disease were not severe, the ALJ found that

the opinion was inconsistent with other medical evidence in the

record, and afforded little weight to his opinion to that extent

only. Id. at 29-30. She otherwise found that Dr. Rosenthall’s

opinion was well supported and consistent with the longitudinal

record. Id.

25 Brooks argues on two grounds that the ALJ erred by

crediting any portion of Dr. Rosenthall’s opinion. First, he

argues that the ALJ could not properly rely on Dr. Rosenthall’s

opinion because as of May 11, 2017, Dr. Rosenthall did not have

the benefit of the entire medical record (that is, he did not

have the benefit of medical evidence dating from after he wrote

his opinion). Second, Brooks argues that, because the ALJ found

one portion of Dr. Rosenthall’s opinion to be inconsistent with

the medical evidence, she could not properly rely on any portion

of the opinion. Again, the court disagrees with Brooks’s

arguments.

The opinion of a reviewing agency physician must be

assessed in light of the absence of a treating or examining

relationship between the physician and the claimant, the support

given for the opinion, the consistency of the opinion with the

record as a whole, and the reviewer’s relevant expertise. See

(c)(2)-(6). Each statement by a medical

source reflecting that source’s judgment regarding a claimant’s

impairments constitutes a medical opinion that may properly be

weighed independently of the source’s other such statements.

See

(a), (c).

Here, the ALJ noted that Dr. Rosenthall based his opinion

solely on review of Brooks’s medical records as they then

existed. The ALJ evaluated the opinion in terms of the support

26 it received from cited medical evidence and its consistency with

other medical evidence of record. The ALJ found Dr.

Rosenthall’s opinion regarding the non-severity of Brooks’s

back-related impairments to be inconsistent both with Dr.

Kwock’s opinion testimony and with the evidence that had been

available to Dr. Kwock but not to Dr. Rosenthall. Id. at 30.

As noted, that evidence included the MRI study of June 2017.

Id. at 446-447. The ALJ found that Dr. Rosenthall’s opinion as

to Brooks’s physical impairments was otherwise well supported

and consistent with the medical evidence. Id. at 29-30. The

ALJ thus assessed Dr. Rosenthall’s opinion according to the

appropriate metric and supported her findings with substantial

medical evidence of record.

Brooks’s arguments in support of his assignment of error do

not persuade the court to the contrary. First, as discussed

above, the ALJ gave good reasons for crediting the portions of

Dr. Rosenthall’s opinion to which she afforded great weight.

Indeed, it is precisely the portion of Dr. Rosenthall’s opinion

that conflicted with the later-developed evidence that the ALJ

declined to credit.

Second, there is no support in the regulations or case law

for Brooks’s position that an ALJ must credit either all or none

of a medical source’s statements. To the contrary, the

regulations make clear that each statement is to be evaluated

27 for supportability and consistency independently of a source’s

other statements. See

(a), (c).

The ALJ deployed the proper legal standards in assessing

Dr. Rosenthall’s opinion and based her conclusions on

substantial medical evidence of record. It follows that no

grounds exist for disturbing the Commissioner’s final decision

based on the weight the ALJ afforded Dr. Rosenthall’s opinion of

May 11, 2017.

C. Reviewing Agency Physician Dr. Kwock

The ALJ gave great weight to Dr. Kwock’s opinion testimony

of December 12, 2018. Brooks argues that the ALJ could not

properly rely on Dr. Kwock’s opinion because Dr. Kwock testified

only to impairments caused by Brooks’s degenerative disc

disease, and not to those caused by his possible seizure

disorder. Brooks further argues that it was independent error

for the ALJ to credit Dr. Kwock’s opinion over that of Dr.

Badman because Dr. Kwock’s reasons for disagreeing with Dr.

Badman’s opinion were inadequate. Finally, Brooks argues that

the ALJ independently erred in assigning great weight to any

portion of Dr. Kwock’s opinion because the ALJ purportedly

disagreed with one of Dr. Kwock’s statements. None of Brooks’s

arguments is persuasive.

28 First, it is a commonplace for a medical source to opine

only as to a claimant’s impairments falling within his or her

area of specialty, and this does not constitute grounds for

discrediting the source’s opinion. Indeed, it would be grounds

for discrediting Dr. Kwock’s opinion if he had offered testimony

as to impairments he had no knowledge of or expertise regarding.

See

(c). Moreover, it is clear from the

transcript of Dr. Kwock’s testimony that he did not opine that

Brooks’s possible seizure disorder could not have caused severe

impairments, but rather merely refrained from testifying to the

nature or severity of any such impairments. Admin. Rec. at 46-

55. The ALJ credited Dr. Kwock’s testimony as to impairments

caused by Brooks’s degenerative disc disorder, but did not infer

from his testimony that Brooks had no other impairments,

including impairments caused by the possible seizure disorder.

Instead, the ALJ credited other medical opinions of record

regarding severe impairments caused by the seizure disorder—

including the opinion of Dr. Rosenthall—and expressly accounted

for them in her assessment of Brooks’s physical RFC.

at 24-

31. There was no error in the ALJ’s treatment of Dr. Kwock’s

testimony.

Second, the Administration’s regulations impose no

obligation on Dr. Kwock to provide any particular quantum of

proof in support of his difference of opinion with Dr. Badman.

29 Nor was the ALJ obliged to credit Dr. Kwock’s opinion only to

the extent Dr. Kwock’s reasoning mirrored the standards by which

an ALJ must assess the relative weight of record evidence. It

is the ALJ, and not any individual medical source, who is

obliged to apply the correct standards in assigning weight to a

medical opinion.

Here, as noted, the ALJ was required to assess the

credibility of Dr. Kwock’s opinion in light of the absence of a

treating or examining relationship, the support Dr. Kwock

provided for his opinion, the consistency of the opinion with

the record as a whole, and Dr. Kwock’s relevant expertise. See

(c)(2)-(6). In addition, the ALJ (and not

Dr. Kwock) was required to adhere to the principles set forth in

Social Security Ruling 16-3p. That Ruling provides in relevant

part as follows:

In determining whether there is an underlying medically determinable impairment that could reasonably be expected to produce an individual's symptoms, we do not consider whether the severity of an individual's alleged symptoms is supported by the objective medical evidence. For example, if an individual has a medically determinable impairment established by a knee x-ray showing mild degenerative changes and he or she alleges extreme pain that limits his or her ability to stand and walk, we will find that individual has a medically determinable impairment that could reasonably be expected to produce the symptom of pain. We will proceed to step two of the two-step process, even though the level of pain an individual alleges may seem out of proportion with the objective medical evidence.

30 Soc. Sec. Ruling 16-3p,

, S.S.R. 16-3P (S.S.A.

Mar. 16, 2016).

The ALJ proceeded precisely in accordance with Ruling 16-

3p. Although she credited Dr. Kwock’s opinion that Brooks’s

condition, while likely to be painful, was unlikely to cause

extreme pain, she nevertheless found that Brooks’s condition

“could reasonably be expected to cause the alleged symptoms” of

pain. Admin. Rec. at 25. She then proceeded to the next step

of the process, without regard to whether Brooks’s reported

subjective pain symptoms might “seem out of proportion with the

objective medical evidence.” S.S.R. 16-3p. The ALJ did not err

in considering Dr. Kwock’s opinion regarding Brooks’s subjective

experience of pain.

Third and finally, Brooks argues that it was error for the

ALJ to assign great weight to any portion of Dr. Kwock’s opinion

in light of her finding that Brooks’s condition could reasonably

be expected to cause symptoms of severe pain. It is Brooks’s

apparent position that Dr. Kwock opined directly to the

contrary, and that because the ALJ rejected that portion of his

opinion she was obliged to reject the opinion in its entirety.

This argument fails as to both its premises. As discussed

above, Dr. Kwock did not opine that Brooks’s condition could not

cause extreme pain. Instead, Dr. Kwock emphasized that pain is

subjective, that different patients experience pain differently,

31 and that the same condition can cause differing levels of pain

in different individuals. Admin. Rec. at 50-52. Moreover, he

testified that degenerative changes such as Brooks’s would be

expected to cause pain. Id. at 51. And he declined to offer

testimony as to what Brooks’s subjective experience of pain

might be. Id. His testimony that extreme pain associated with

degenerative disc disease is generally caused by neurologic

impingements not observed in the MRI of Brooks’s spine, id. at

48, simply did not constitute denial of the possibility that

Brooks might have experienced severe pain. Perhaps more

critically, an ALJ is not limited to crediting either all or

none of a medical source’s statements, but rather is both

authorized and obliged to consider each statement of medical

opinion separately. See

(a), (c).

For the reasons discussed above, Brooks has not shown that

the ALJ erred in weighing Dr. Kwock’s medical opinion. Because

the ALJ deployed the proper legal standards and based her

conclusions on substantial medical evidence of record, no

grounds exist for disturbing the Commissioner’s final decision

based on the weight the ALJ afforded Dr. Kwock’s opinion of

December 12, 2018.

32 D. Examining Consultative Physician Dr. Graf

The ALJ did not address the May 3, 2017, opinion of

examining consultative physician Dr. Graf. It is well

established that an ALJ is required to consider all of the

medical opinions of record. See

(b). It

was, therefore, clear error for the ALJ to fail to address Dr.

Graf’s opinion in her written decision.

The court does not lightly find that an ALJ’s failure to

discuss an examining physician’s medical opinion of record could

constitute harmless error. As a general rule, such error

provides sufficient ground for issuing an order of remand. See

Here, however, remand would amount to an empty exercise,

and therefore is not mandated. See, e.g., Ward v. Comm'r of

Soc. Sec.,

(1st Cir. 2000).

Dr. Graf offered no opinion as to any specific impairments

caused by Brooks’s conditions. The entirety of Dr. Graf’s

medical judgment regarding Brooks’s impairments was, as noted,

as follows:

[Brooks] is substantially impaired in basic functional movement patterns referencing the lumbosacral spine and there is a disorder of concentration and pace and motor functions. This has not been specifically diagnosed but has been considered to be a seizure disorder.

Admin. Rec. at 400. In assessing Brooks’s physical RFC, the ALJ

found, consistently with Dr. Graf’s opinion, that Brooks

33 suffered substantial impairments in connection with his

degenerative disc disease of the lumbar spine, and that he

suffered from a seizure disorder. Id. at 24-31.

Because the ALJ incorporated the entire substance of Dr.

Graf’s medical opinion into her assessment of Brooks’s physical

RFC, and because the ALJ’s assessment of Brooks’s physical RFC

is otherwise adequately supported by substantial record

evidence, remand to require the ALJ to consider the opinion

expressly would be futile. See, e.g., Van Ngo v. Saul,

, 145 (D. Mass. 2019) (“failure to consider a

medical opinion in the record may constitute error,” but unless

the claimant can show “that this error prejudiced his case . . .

it is harmless”); Hodgson v. Berryhill, Case No. 18-CV-87-PB,

, at *4 (D.N.H. Oct. 29, 2018), report and

recommendation adopted sub nom. Hodgson v. US Soc. Sec. Admin.,

Acting Comm'r, Case No. 18-CV-87-PB,

(D.N.H.

Mar. 4, 2019) (unpublished disposition); Dubord v. Colvin, Case

No. 2:16-CV-00035-JHR,

, at *2 (D. Me. Dec. 20,

2016) (unpublished disposition); Wilner v. Astrue, Case No.

2:11-CV-21-GZS,

, at *5 (D. Me. Jan. 26, 2012),

aff'd, Case No. 2:11-CV-21-GZS,

(D. Me. Feb. 14,

2012) (unpublished disposition); Baez-Rivera v. Comm'r of Soc.

Sec., Case No. 12-1390 MEL,

, at *3 (D.P.R. Mar.

27, 2014) (unpublished disposition); see also Jennings v. Saul,

34

, 462 (9th Cir. 2020) (harmless error to fail to

evaluate a medical opinion of record where the ALJ’s assessment

of the claimant’s RFC was consistent with the unaddressed

opinion and contained those limitations that the opinion tended

to support) (unpublished disposition). Accordingly, the court

finds that the ALJ’s error was necessarily harmless, see Ward,

, and therefore declines to disturb the

Commissioner’s final decision on the basis of the ALJ’s failure

to address Dr. Graf’s opinion.

CONCLUSION

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

no. 9) is denied, and the Commissioner’s motion to affirm (doc.

no. 11) 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 23, 2020

cc: Counsel of Record

35