UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Eric Douthitt

v. Civil No. 20-cv-451-JD Opinion No.

Andrew M. Saul, Commissioner Social Security Administration

O R D E R

Eric Douthitt seeks judicial review, pursuant to

(g), of the Commissioner’s decision that found he became

disabled as of August 23, 2018, but denied his application for

disability insurance benefits and supplemental security income

based on an alleged disability before that date. In support, he

contends that the Administrative Law Judge (“ALJ”) made legal

and factual errors in finding that he was not disabled until

August of 2018. The Commissioner moves to affirm the decision.

Standard of Review

For purposes of review, 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 Sacilowski v.

Saul,

(1st Cir. 2020). The court defers to

the ALJ’s factual findings if they are supported by substantial

evidence. § 405(g); Biestek v. Berryhill,

(2019). Substantial evidence is “more than a mere scintilla”

and means “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”

. The

court must affirm the ALJ’s findings, even if the record could

support a different conclusion, when “a reasonable mind,

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

as adequate to support [the ALJ’s] conclusion.” Irlanda Ortiz

v. Sec’y of Health & Human Servs.,

(1st Cir.

1991); accord Purdy v. Berryhill,

(1st Cir.

2018).

In making a disability determination, an ALJ follows a

five-step process, asking “questions that are sequential and

iterative, such that the answer at each step determines whether

progression to the next is warranted.” Sacilowski,

. The steps are as follows:

(Step 1) whether the claimant is currently engaging in substantial gainful activity; if not, (Step 2) whether the claimant has a severe impairment; if so, (Step 3) whether the impairment meets or medically equals an entry in the Listing of Impairments; if not, (Step 4) whether the claimant's residual functional capacity (“RFC”) is sufficient to allow her to perform any of her past relevant work; and if not, (Step 5) whether, in light of the claimant's RFC, age, education, and work experience, she can make an adjustment to other work available in the national economy.

(citing

(a)(4)(i)-(v) &

416.920(a)(4)(i)-(v)). The claimant bears the burden of showing

he is disabled through the first four steps, but at Step 5 the

2 Commissioner must provide evidence to show that there are jobs

in the national economy that the claimant can do. Id. at 434.

Background

Under the local rules in this district, the claimant is

required to file a statement of material facts, with each fact

supported by citation to the administrative record. LR 9.1(c).

The Commissioner then files a statement of material facts but

only to the extent facts were omitted from the claimant’s

statement. In this case, Douthitt included a section in the

memorandum in support of the motion to reverse, titled “Factual

Allegations,” which includes statements that are not supported

by citations to the record. To the extent the statements are

not properly supported, they are not considered.1 In response,

the Commissioner filed a properly supported statement of

material facts.

Douthitt alleges that he became disabled in March of 2012.

His application was denied initially, and after a hearing the

ALJ issued an unfavorable decision. His insured status for

disability insurance benefits ended on September 30, 2017. The

1 The court notes that Douthitt is represented by counsel. The factual statement provided is insufficient. In addition to the facts that are not supported by any citation to the record, in other instances, the page of the record cited does not support the fact stated.

3 ALJ determined that he became disabled on August 23, 2018, after

his insured status expired.

Douthitt previously worked at Sturm Ruger Manufacturing for

seventeen years. He had surgery for carpal tunnel problems and

had difficulty with his left shoulder. He had arthroscopic

surgery on his left shoulder in late June of 2010, but

experienced continuing pain well out of proportion to the injury

and procedure. He was allowed to return to light duty work in

September of 2010.2 At follow-up appointments, Douthitt

continued to complain of pain in his left shoulder, but on

examination he was found to have a full range of motion and

other normal results. Independent medical examinations

recommended conservative treatment.

He had a second surgery on his left shoulder in September

of 2011. The treatment notes post surgery indicate improvement

and full range of motion. Douthitt’s employment was terminated

on March 26, 2012.

He was examined in May of 2012 for pain in his left

shoulder. The examining provider, Cecilia Vicuna-Keady, DNP,

APRN, FNP, found that Douthitt had normal motor strength,

2 In his factual statement, Drouthitt states that he was given a note to return to light duty work in March of 2012, but the page of the record that he cites is a treatment note from September of 2010.

4 sensation, and gait.3 In June, Douthitt reported that his pain

was slowly improving, and on examination he was found to have

full motion but a decrease in strength. Subsequent physical

examinations produced reports of normal motor strength and range

of motion despite his complaints of pain in his shoulders.4 At

medical appointments in 2012 and 2013, Douthitt reported that he

was focusing on his art and was earning income from his artwork.

In July of 2013, Douthitt was examined by Dr. Robert

Bassett for reevaluation of his ability to work. Dr. Bassett

found on examination that his left shoulder was nearly normal

although he had pain on certain tests. Douthitt had full range

of motion in both shoulders. Dr. Bassett provided a note that

allowed him to return to work with no use of his left arm.

During a follow-up examination in June of 2015, Dr. Bassett

3 Douthitt refers to NP Vicuna-Keady as “Dr. Keady”, but the record shows that her name is Vicuna-Keady and she is a nurse practitioner.

4 Douthitt states that Dr. Houde of Concord Orthopedics found that he would never be without pain and cites page 705 of the administrative record in support. The medical record at page 705, however, was prepared and signed by a physician’s assistant, Brian Lantz, PA-C, on January 10, 2013. Lantz wrote: “It is clear that Eric will never be without pain complaints in the left shoulder,” which is part of the history of his symptoms. On examination, however, PA-C Lantz found that Douthitt could “actively place his arm throught fulll [sic] ROM, even able to internally rotate to L3.” Admin. Rec. at 705. In addition, it appears that PA-C Lantz is employed at Valley Regional Orthopeadics, not Concord Orthopedics.

5 found that Douthitt had nearly full range of motion, strong

rotation, no instability, and no sign of weakness.

Dr. Gregory Korgeski did a mental health evaluation in

December of 2013 for the New Hampshire Disability Determination

Service. His diagnostic impression was that Douthitt had

depression, not otherwise specified, and panic disorder, not

otherwise specified. Dr. Korgeski suggested that Douthitt might

be assessed for memory or learning abilities and that he might

profit from therapy. He found that Douthitt had the ability to

function with only slight limitations.

Douthitt was diagnosed with diabetes in 2016. He reported

during a diabetes management meeting that his neuropathy would

be better if he remembered to take his midday dose of

medication.

In August of 2016, Douthitt had a consultative examination

with Dr. Peter C. Loeser. Dr. Loeser found that Douthitt had

normal findings, including normal range of motion in his left

shoulder. He also found nothing remarkable in his examination

of Douthitt’s legs, including no edema. Douthitt was able to

move around during the examination without pain, impairments, or

deficits. Dr. Loeser found that Douthitt had left shoulder pain

and mild diabetic neuropathy.

Douthitt reported right shoulder pain during an appointment

with NP Vicuna-Keady in July of 2017. NP Vicuna-Keady found

6 that he had a full range of motion with pain. At subsequent

appointments she found a more limited range of motion. X-rays

of his right shoulder were normal. Douthitt stated during a

medical appointment that Aleve helped with the pain. In 2018,

Douthitt reported that he was walking daily.

A hearing was held on Douthitt’s applications for benefits

on August 13, 2019. Douthitt was represented by counsel at the

hearing and testified. Dr. William Kwock, MD, a specialist in

orthopedic surgery, testified as a medical expert. Ruth Baruch

testified as a vocational expert.

Based on his review of Douthitt’s records, Dr. Kwock

testified that Douthitt had a chronic shoulder impingement in

his left shoulder and had undergone two routine arthroscopic

procedures for decompression.5 He explained that there were no

radiology findings about his shoulder and that the tests done on

Douthitt’s shoulder were based on his response to whether he

felt pain when his shoulder was moved in certain ways. Dr.

Kwock also noted the post-operative reports that Douthitt had a

full range of motion in his left shoulder and subsequent

examination reports with the same results. Dr. Kwock discussed

Douthitt’s diabetes and thought that the record did not show a

likelihood for severe peripheral neuropathy.

5 Dr. Kwock put the word “impingement” in quotes but was not asked to explain that designation.

7 Dr. Kwock testified that Douthitt’s records would support

an ability to work at the light exertional level. He found that

Douthitt could sit for a full eight-hour work day and could

stand and walk for six hours out of the day. He limited

Douthitt to only frequently lifting overhead with his left arm.

The ALJ posed a hypothetical to the vocational expert that

described a person who could do light work with additional

limitations. The vocational expert testified that, based on the

hypothetical, Douthitt’s past work as a collator was available.

She also testified about other jobs that he could do.

The ALJ issued her decision on October 1, 2019. She found

that Douthitt had severe impairments of diabetes mellitus,

peripheral neuropathy, obesity, degenerative changes of the

cervical spine, obstructive sleep apnea, depression, anxiety,

and left shoulder impingement. Despite those impairments, she

found that Douthitt retained the functional capacity to perform

light work with additional limitations, including an opportunity

to change positions, move around, or stretch two or three times

in an hour; no climbing, kneeling, or crawling; and only

occasional reaching with his left arm.

Based on that RFC and the vocational expert’s testimony,

the ALJ concluded that prior to August 23, 2018, there were jobs

in the national economy that Douthitt could do. She further

found that as of August 23, 2018, Douthitt’s age category

8 changed so that there would then have been no jobs that he could

do. The ALJ concluded that Douthitt was disabled after August

23, 2018, but not before. The ALJ issued a revised decision on

October 1, 2019, in which she found that for purposes of his

Title II claim he had not established that he was disabled

before his last insured date but also found that he became

disabled for purposes of his Title XVI claim on August 23, 2018.

Douthitt sought review by the Appeals Council, which was

denied on February 14, 2020, making the ALJ’s decision the final

decision of the Commissioner.

Discussion

In his motion to reverse and remand, Douthitt contends that

the ALJ erred in her evaluation of the effects of his pain, in

weighing the medical opinions, and in assessing his RFC. The

Commissioner moves to affirm the Commissioner’s decision.

Douthitt filed a response to the Commissioner’s motion.6

6In his response, Douthitt states, citing page 83 of the administrative record, that athletes are treated based on the tests that Dr. Kwock deemed to be subjective and asks the court to take judicial notice “that athletes are given excellent care in our society.” Doc. 12, ¶ 24. On page 83, Dr. Kwock testified about tests used by sports medicine doctors to determine whether there is impingement and what an MRI would show. The issue in this case is whether Douthitt was disabled by his impairments, not whether he received excellent care. The request for judicial notice is denied.

9 A. Evaluation of Alleged Symptoms

The first issue Douthitt raises appears to be based on a

misunderstanding of the ALJ’s decision and the controlling legal

principles. Douthitt contends that the ALJ made a legal error

in assessing his impairments for purposes of the RFC assessment.

Specifically, Douthitt perceives a contradiction in the ALJ’s

finding that his “medically determinable impairments could

reasonably be expected to cause the alleged symptoms; however,

the claimant’s statements concerning the intensity, persistence

and limiting effects of these symptoms are not fully supported

for the reasons explained in this decision.” Admin. Rec. at 23.

As the ALJ stated in her decision, she was required to

follow a two-step process to assess a claimant’s impairments.

; Social Security Ruling 16-3p,

(March 16, 2016). At the first step, she must determine

whether the claimant has a medically determinable impairment

that could reasonably be expected to produce the symptoms the

claimant alleges. At the second step, she evaluates the

intensity, persistence, and limiting effects of those symptoms

to determine if and how they limit the claimant’s work

activities. See, e.g., Discordia v. Saul,

,

Because the administrative regulations applicable to Title II and Title XVI are the same in all relevant respects, the Title II regulations will be cited for both. See Sullivan v. Zevley,

(1990).

10 321236, at *5 (D.N.H. Feb. 1, 2021) (citing §§ 404.1529,

416.927, & SSR 16-3p).

Douthitt appears to be confused by the two-step process and

misunderstands the import of the first step. He contends that

ALJ’s determination was based on legal error: “The Judge’s

decision, beginning page 14, found the medically determinable

impairments could reasonably be expected to cause his symptoms,

page 23 but does not find them fully supported in contradiction

of the law and the regulations.” Doc. 7-1, ¶ 25. At the first

step, the ALJ determined that Douthitt’s impairments could

reasonably be expected to cause the symptoms that he alleged.

The ALJ did not find, as Douthitt appears to argue, that the

medical evidence in the record is consistent with the alleged

severity, persistence, and limiting effects of his symptoms.

The ALJ properly applied the two-step process in Douthitt’s

case. Because the ALJ applied the correct legal standard in

assessing Douthitt’s RFC, he has not shown the legal error that

he claims.

B. Statements About Symptoms

Douthitt also challenges the basis for the ALJ’s

determination that his statements about the severity,

persistence, and limiting effects of his symptoms were not fully

supported by the record. SSR 16-3p provides guidance for “the

11 proper way for an ALJ to assess a claimant’s symptoms, including

pain, under

(c)(3), 416.929(c)(3).” Coskery

v. Berryhill,

(1st Cir. 2018). Under SSR 16-3p,

the ALJ considers the entire record, including objective medical

evidence, the claimant’s statements about his symptoms,

information provided by medical sources and others, and other

relevant evidence in the record to assess the claimant’s

statements about his symptoms.

. Lack of Treatment

Douthitt notes that Dr. Kwock commented on the lack of

objective test results in the record and that the testing that

was done was based on Douthitt’s subjective statements of pain.

Douthitt interprets Dr. Kwock’s testimony to mean that the lack

of objective testing was due to his failure to seek treatment

for his pain. Based on that misperception, Douthitt argues that

the ALJ should have considered the factors provided in SSR 16-3p

that pertain to how an ALJ evaluates the record when a claimant

has not sought treatment to the extent that would be expected

for his subjective complaints. See SSR 16-2p, at *8-*9.

The ALJ did not consider a lack of treatment as a reason

for finding that Douthitt’s complaints of pain were not fully

12 supported by the record.8 Therefore, she had no reason to

consider the cited factors in SSR 16-3p. While Dr. Kwock

commented about the absence of objective test results in the

record, his point was that the record did not provide an

objective basis to support Douthitt’s claimed symptoms. There

is no suggestion that the lack of objective testing was the

result of a lack of treatment, and the record shows that

Douthitt consistently sought medical treatment during the

relevant period. Therefore, Douthitt has not shown that the

factors provided in SSR 16-3p to evaluate a lack of treatment

are relevant to the ALJ’s evaluation.

2. Daily Activities

Douthitt contends that the ALJ did not properly consider

his daily activities in assessing his allegations of severe

neuropathic pain due to diabetes. Under § 404.1529(c), the ALJ

considers the claimant’s daily activities, along with other

evidence, in assessing the effects of his symptoms. SSR 16-3p,

at *7.

The ALJ noted that Douthitt had only mildly decreased fine

touch sensation in his feet when he was examined by Dr. Loeser

8 The ALJ did note that NP Vicuna-Keady suggested a referral to a shoulder specialist but Douthitt refused. Douthitt, however, does not contest that issue.

13 in August of 2016. He was able to walk without pain. Douthitt

also reported that he had not taken his medication for

neuropathy that morning. The ALJ noted that he reported to

health care providers that he dances and does housework for

exercise and that he shops with his wife and walks daily. He

also reported doing artwork consistently.

Although Douthitt argues that he experiences pain when

doing those activities, that was not included in the reports the

ALJ relied on. Further, the ALJ considered his testimony about

pain and his activities. Therefore, the ALJ’s assessment was

not erroneous.

3. Other Factors for Assessing Symptoms

Douthitt argues that the ALJ mentioned the factors for

assessing pain, known as the Avery factors, in only a conclusory

manner. The Avery factors are: “(1) the claimant's daily

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

of the pain or symptom; (3) any precipitating and aggravating

factors; (4) the effectiveness of any medication currently or

previously taken; (5) the effectiveness of non-medicinal

treatment; (6) any other self-directed measures used to relieve

pain; and (7) any other factors concerning functional

limitations or restrictions.” Discordia,

, at *5.

An ALJ is not required to address each factor as long as the

14 decision states the reasons for the weight given to the

claimant’s allegations of symptoms, the decision is consistent

with and supported by the record evidence, and the decision is

clear as to how the claimant’s symptoms were evaluated.

The ALJ addressed Douthitt’s alleged symptoms and the

medical evidence pertaining to them on pages 24 through 28 of

the administrative record. In that discussion, the ALJ

considered Douthitt’s allegations of depression and anxiety and

of shoulder pain and neuropathic pain. She reviewed the

treatment and evaluations he had received, the medications he

was taking, and the opinion evidence. She also considered other

diagnoses that Douthitt had received. She explained her

reasoning as to the severity of the symptoms alleged. In

conclusion, the ALJ found that Douthitt had the RFC to do light

work with certain additional limitations.

Douthitt has not shown any error in the ALJ’s evaluation of

his symptoms and pain under the governing law and in light of

the record evidence.

C. Medical Opinions

Douthitt challenges the weight the ALJ gave to the medical

opinion evidence. An ALJ is required to consider medical

opinions along with all other relevant evidence in a claimant’s

record.

(b). “Medical opinions are

15 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.” § 404.1527(a)(1). The ALJ evaluates medical

opinions based upon the nature of the medical source’s

relationship with the claimant, the extent to which the source

provides evidence to support the opinion, the extent the opinion

is consistent with other evidence in the record, the

specialization of the medical source, and other factors

including the understanding the source has of the social

security system. § 404.1527(c); see also Brunnell v.

Commissioner of Social Security, 18-cv-569-LM,

,

at *4 (D.N.H. Sept. 5, 2019).

1. Dr. Kwock9

Douthitt contends that the ALJ erred in relying on the

opinions provided by Dr. Kwock but the grounds are not clear.

Douthitt does not dispute Dr. Kwock’s qualifications. It

appears that his primary issue is Dr. Kwock’s statements about

the lack of objective test results to confirm Douthitt’s

9 Douthitt refers to Dr. Kwock as Dr. Kwork.

16 allegations of pain. Douthitt has not shown that Dr. Kwock was

wrong about the lack of objective testing or that his opinion is

undermined by that observation.

To the extent Douthitt argues that Dr. Kwock disagrees with

the treatment he received for his shoulder condition, that does

not appear to be supported by the record. Dr. Kwock

acknowledges the treatment that Douthitt received and based his

opinion on the medical evidence in the record. The ALJ properly

explained the weight she gave to his opinions and also explained

that she added limitations based on Douthitt’s testimony and

other evidence in the record. Therefore, Douthitt has not shown

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

2. Dr. Bassett10

Douthitt argues that the ALJ erred in not giving weight to

Dr. Bassett’s restriction that Douthitt could not use his left

arm for work.11 Douthitt contends that Dr. Bassett is a treating

physician whose opinion is entitled to controlling weight.

10 Douthitt also refers to Dr. Bassett as Dr. Barrette.

11To the extent Douthitt also challenges the weight given to the opinion of state agency physician, Dr. Jaffe, the ALJ explained that evidence entered into the record after Dr. Jaffe’s review did not support his limitations for handling but did support additional limitations in postural activities.

17 The ALJ stated that no treating or examining provider

submitted a function by function assessment of Douthitt’s

abilities and limitations. She gave little weight to Dr.

Bassett’s opinion that Douthitt could not use his left arm for

work because the record evidence did not support that

limitation. The record is replete with examination findings

that Douthitt had a full range of motion in his left shoulder

and lacks evidence that he could not use his arm to work.12 See

§ 404.1527(c)(2).

3. NP Vicuna-Keady

Douthitt argues that the ALJ ignored the opinion provided

by “Dr. Keady” but does not explain what opinion was ignored.

The ALJ did address NP Vicuna-Keady’s opinions that Douthitt was

unable to work because of shoulder pain, diabetes, and severe

depression. The ALJ explained that she gave the opinions little

weight because the opinions were conclusory; were on an issue

that is reserved to the Commissioner, § 404.1527(d); and were

contradicted by NP Vicuana-Keady’s treatment notes on

depression. Douthitt does not dispute the accuracy of the ALJ’s

assessment but only argues that NP Vicuna-Keady’s opinions “are

12Therefore, whether or not Dr. Bassett is a treating physician, the ALJ properly explained the weight given to his opinion.

18 evidence as they relate to the care he has been given.” Doc. 7-

1, ¶ 48.

The ALJ did not err in her assessment of NP Vicuna-Keady’s

opinions.

D. Residual Functional Capacity

A claimant’s residual functional capacity is “the most [a

claimant] can still do despite [his] limitations.”

§ 404.1545(a)(1). As stated above, the ALJ found that Douthitt

had the RFC to do work at the light exertional level with the

additional limitations that he would need to change positions

while working; that he could never climb, kneel, or crawl; that

he could reach overhead only occasionally with his left arm and

could otherwise reach frequently; that he could not do firm

grasping with his left hand; that he could push and pull

frequently with his legs; and that he could have no concentrated

exposure to potential hazards. The ALJ also found that he could

do routine, unskilled work but not fast-paced work.

Douthitt argues that the ALJ erred by not considering his

mental and physical impairments in combination for purposes of

the RFC. He is mistaken. The ALJ considered all of Douthitt’s

physical and mental diagnoses and impairments. The ALJ found,

based on the record evidence, that Douthitt’s depression and

anxiety were well controlled. Douthitt’s treatment notes

19 document Douthitt’s normal mental functioning. The ALJ then

considered Dr. Korgeski’s opinion about restrictions in

Douthitt’s ability to work due to mental impairments. She did

not give weight to the limitation on working with the public

because of the lack of record support.

Douthitt argues that his mental limitations caused him to

forget to take his medications and to eat properly for diabetes.

Although the record confirms that Douthitt occasionally forgot

to take his medication for neuropathy, he cites no record

evidence to show that his mental impairments caused that

forgetfulness.13 Further, he has not shown that forgetting to

take his medication and improper eating caused disabling

impairment due to neuropathy or diabetes.

The ALJ’s RFC assessment is supported by substantial

evidence. To the extent Douthitt challenges the hypothetical

that the ALJ gave to the vocational expert, as he acknowledges,

it was the same as the RFC finding. Because substantial

evidence supports the RFC finding, Douthitt has shown no error

in the hypothetical.

13Only one of the cited pages pertains to forgetting to eat and take medication and does not attribute that forgetfulness to any mental impairment.

20 Conclusion

For the foregoing reasons, the claimant’s motion to reverse

the Commissioner’s decision (document no. 7) is denied. The

Commissioner’s motion to affirm (document no. 10) is granted.

The decision is affirmed.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge February 17, 2021

cc: Counsel of record.

21