UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Deana Rose Discordia

v. Case No. 19-cv-1261-PB Opinion No.

Andrew Saul, Commissioner Social Security Administration

MEMORANDUM AND ORDER

Deana Rose Discordia challenges the denial of her

application for disability insurance benefits pursuant to

(g). She contends that the Administrative Law Judge

(“ALJ”) committed reversible errors by failing to consider the

diagnoses and opinions of her treating and examining physicians,

failing to give appropriate weight to her own testimony, and

failing to review the entire medical record. The Commissioner,

in turn, moves for an order affirming the ALJ’s decision. For

the following reasons, I deny Discordia’s motion and affirm the

Commissioner’s decision. I. BACKGROUND1

A. Procedural Facts

Discordia is a 51-year-old woman who completed high school

and two years of college. She worked as a correctional

treatment officer and correction counselor until April 2010,

when she retired early to have several medical surgeries. In

September 2017, she applied for disability insurance benefits,

alleging that her disability began April 2014, due to Ehlers-

Danlos Syndrome Type III (hypermobility) and degenerative disc

disease. Discordia’s insured status expired on March 31, 2016.

Discordia’s application for disability insurance benefits

was denied in December 2017. In September 2018, she testified

at a hearing before ALJ Thomas Merrill, who ultimately denied

her claim. The Appeals Council granted her request for review

and subsequently found that Discordia was not disabled. See Tr.

5. Discordia now appeals.

B. Medical Evidence

Discordia saw Dr. Michael Joyce, an orthopedic sports

specialist, for bilateral shoulder arthroscopic plication and

rotator cuff debridement for the left shoulder in September 2010

and for the right shoulder in March 2010. Dr. Joyce cleared her

1 I recount here only those facts relevant to the instant appeal. The parties’ more complete recitations in their Statements of Material Facts (Doc. No. 6-2 & 8) are incorporated by reference.

2 to lift any weight at waist level and up to 40 pounds overhead,

with the ability to increase weight as her pain allowed.

In June 2013, Discordia visited Dr. Patrick Doherty, a

neurosurgeon, reporting intermittent coccygeal and sacral pain.

An MRI at that time showed mild degenerative changes at L4-5,

L5-S1, and a 1.1 cm Tarlov cyst behind S2. In 2013, she was

treated with injections and physical therapy. During her

treatment period, her gait, strength, range of motion, and

sensation were all reported as normal. In October 2013,

Discordia once again saw Dr. Doherty and complained of increased

pain, although Dr. Doherty noted no medical signs of change and

continued to recommend injections and physical therapy for her

treatment.

Discordia visited Dr. Peter Whang, an orthopedist, in March

2014. Dr. Whang noted that her gait was normal, and found no

restriction in cervical flexion, extension, rotation, or lateral

bending, no tenderness over the posterior cervical spine or

trapezius muscles, no need for an assistive device for

ambulation, mild pain in the back with extension, normal

alignment and muscle tone, negative straight leg raising tests,

and strength at 5/5 throughout. Dr. Whang also examined the

2014 MRI, noting that it showed mild disc degeneration at L4-5

and mild-to-moderate degeneration at L5-S1, in addition to

annular tears, worse at L4-5, and perineural cysts without

3 significant erosion of the sacrum. Dr. Whang cleared her for

all activities, including exercise as tolerated, and recommended

continued physical therapy.

Discordia also visited Dr. Robert Levin, a rheumatologist,

in March 2014 for an initial exam. During the exam, he found

that Discordia had a Beighton Hypermobility Score of 4/9 for her

elbows, knees, thumbs to forearms, and ability to bring her

hands flat on the floor bending forward. Discordia complained

of discomfort over the coccyx and sacrum. Dr. Levin diagnosed

her with Ehlers-Danlos Syndrome Type III (hypermobility) and

told her that much of her discomfort was likely related to

hypermobility. He also told her that she had arthralgias in

multiple sites. He recommended physical therapy to help tone

and bulk her muscles and recommended gaining five pounds. By

August 2014, Discordia reported she was more active. In August

2015, Dr. Levin noted during a visit that Discordia was

receiving physical therapy for instability of the sacroiliac

joint, and that holistic physical therapy was helping her

symptoms.

In April 2014, Discordia once again visited Dr. Joyce. Dr.

Joyce noted that she walked without a limp and without an

assistive device, her strength was full, her active and passive

range of motion were normal, her hip was stable with no evidence

of joint laxity, and she had no peripheral neuropathy. Imaging

4 of the pelvis was normal, and he found no hip osteoarthritis.

He noted a limited range of motion in her right hip and ordered

an MRI arthrogram. The MRI of her right hip did not indicate

interarticular or other abnormality. He subsequently diagnosed

hip trochanter bursitis. In a May 2014 visit, Dr. Joyce again

noted no limp or use of an assistive device for walking. He

also found no muscle wasting or atrophy, no pain on palpation of

the SI joint, strength was full at 5/5, and the hip was stable,

with no evidence of joint laxity, and no evidence of lumbar

radiculopathy. Discordia reported pain of 3/10 before injection

and 2/10 after injection. Dr. Joyce diagnosed her with

musculoskeletal pain of the hip joint and recommended treatment

of therapeutic exercise, stretching, and activity modifications,

however he noted that she could do activities as tolerated

without restriction.

In May 2014, Discordia visited Dr. Khalid Abbed for right-

sided low back pain, radiating to her posterior lateral thigh

down the calf and into the great toe, with pain at 6/10. Dr.

Abbed prescribed lorazepam, aciphex, Zofran, and tramadol. Dr.

Abbed noted that her gait was normal, she used no assistive

device, 5/5 strength, and normal sensation throughout. He

reviewed an MRI showing degenerative changes at L4-5 and L5-S1,

with annular tears and disc bulging. He recommended taking the

5 prescribed medications in addition to gabapentin and beginning a

formal physical therapy program.

Discordia began physical therapy with Tiffany Rindell, PT,

for three sessions beginning in December 2014. Rindell noted

that Discordia had excellent core strength and that she had

resumed most of her functional and recreational exercises

without exacerbating her pain.

In July 2015, Discordia visited Rachel Hamilton, DO. She

also met with Suzanne Anderson, NP, in August 2015. Nurse

Anderson reported in October 2015 that Discordia’s gait was

normal. Discordia also received four chiropractic treatments

between January and March 2016 at Taylor Chiropractic.

Discordia also reported symptoms that were not present in

the medical record during the relevant claim period between

April 2014 and March 2016. In April 2016, Discordia had an exam

with Dr. Hamilton, where she reported sciatic pain. During an

exam with Dr. You Sung Sung that same month, she reported GERD

symptoms. In December 2016, she reported headaches with nausea

every two to three days. During an April 2017 exam with Dr.

Levin, Discordia reported nausea and digestive problems.

In a December 2017 opinion, state Disability Determination

Services (DDS) physician Dr. Green stated that Discordia was

capable of performing light work, except that she could

frequently climb ramps/stairs and ladders/ropes/scaffolds,

6 stoop, and kneel, and could occasionally crouch and crawl. Dr.

Green noted that between the onset date, March 2013, and the

date last insured, March 2016, the medical record demonstrated

that Discordia could walk distances and hike, and she was

described as athletic and an outdoorswoman.

C. The ALJ’s Decision

The ALJ assessed Discordia’s claim under the five-step,

sequential analysis required by

. At step

one, he found that Discordia had not engaged in substantial

gainful activity since April 1, 2014, her alleged disability

onset date. Tr. 265. At step two, the ALJ found that her

Ehlers-Danlos Syndrome Type III (hypermobility) and degenerative

disc disease of the lumbar and cervical spine were both severe

impairments. Tr. 265. The ALJ also found that her Tarlov cysts

and various other medical conditions were not severe

impairments. Tr. 266. At step three, the ALJ determined that

none of Discordia’s impairments, considered individually or in

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

Part 404, Subpart P, Appendix 1. Tr. 266-67; see

(d). The ALJ then found at step four that Discordia had

the residual functional capacity (“RFC”) to perform light work

as defined in

(b), except that she could

frequently climb ramps, stairs, ropes, ladders and scaffolds,

stoop and kneel, and could occasionally crouch and crawl. Tr.

7 267. The ALJ also found that she had unlimited use of her hands

and feet to push and pull and that her balance was unlimited.

Tr. 267.

In terms of medical opinion evidence, the ALJ found Dr.

Green’s opinion “most persuasive,” finding it consistent with,

and well supported by, the medical evidence. Tr. 272. The ALJ

found the opinions of Gwenn Rosenberg, ND, and Rachel Hamilton,

DO, “unpersuasive.” Tr. 272. Relying on the testimony of a

vocational expert, the ALJ then found at step four that

Discordia could perform her past relevant work as a correctional

counselor and that this work did not require the performance of

work-related activities precluded by her residual functional

capacity. Tr. 273. Accordingly, the ALJ concluded that

Discordia had not been disabled from the alleged disability

onset date through the date last insured. Tr. 273.

After granting Discordia’s request for review, the Appeals

Council adopted the ALJ’s RFC assessment and his findings at

steps one through three but found that the ALJ’s step four

finding that Discordia could perform her past relevant work was

not supported by substantial evidence. The Appeals Council,

however, found her not disabled at step five of the sequential

analysis, concluding that the vocational expert’s testimony

supported a finding that there were jobs in the national economy

that Discordia could perform despite her limitations, including

8 laundry folder, package sorter, and price marker. Accordingly,

the Appeals Council concluded that she was not entitled to

disability insurance benefits through the date last insured.

II. STANDARD OF REVIEW

I am authorized to review the pleadings submitted by the

parties and the administrative record and enter a judgment

affirming, modifying, or reversing the “final decision” of the

Commissioner. See

(g). That review is limited,

however, “to determining whether the [Commissioner] used the

proper legal standards and found facts [based] upon the proper

quantum of evidence.” Ward v. Comm’r of Soc. Sec.,

(1st Cir. 2000). I defer to the Commissioner’s

findings of fact, so long as those findings are supported by

substantial evidence.

Substantial evidence exists “if a

reasonable mind, reviewing the evidence in the record as a

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

Irlanda Ortiz v. Sec’y of Health & Human Servs.,

(1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of

Health & Human Servs.,

(1st Cir. 1981)).

If the Commissioner’s factual findings are supported by

substantial evidence, they are conclusive, even where the record

“arguably could support a different conclusion.” Id. at 770.

The Commissioner’s findings are not conclusive, however, “when

derived by ignoring evidence, misapplying the law, or judging

9 matters entrusted to experts.” Nguyen v. Chater,

(1st Cir. 1999) (per curiam). “Issues of credibility and the

drawing of permissible inference from evidentiary facts are the

prime responsibility of the Commissioner, and the resolution of

conflicts in the evidence and the determination of the ultimate

question of disability is for [him], not for the doctors or for

the courts.” Purdy v. Berryhill,

(1st Cir. 2018)

(internal quotation marks and brackets omitted).

III. ANALYSIS

Discordia alleges that any one of three errors in the ALJ’s

decision warrants remand. First, she contends that the ALJ

failed to consider the diagnoses and opinions of her treating

and examining physicians. Second, she argues that the ALJ

failed to give appropriate weight to her testimony, including

complaints of pain and other symptoms. Finally, Discordia

argues that the ALJ failed to review the entire medical record.

I address each argument in turn and conclude that none has

merit.

A. Diagnoses and Opinions of Treating and Examining Physicians

Discordia argues that the ALJ erroneously failed to

consider the diagnoses and opinions of all her treating and

examining physicians. Discordia does not specify at which step

of the sequential analysis this purported error took place,

however, to the extent she alleges that the ALJ should not have

10 found that Discordia retained the residual functional capacity

to perform light work, she has not met her burden of

demonstrating that reversal is warranted on this basis.

A residual functional capacity assessment will be affirmed

if it is supported by substantial evidence. Irlanda Ortiz,

, quoting

(g). Here, the ALJ found

the opinion of Dr. Green “most persuasive,” not only because he

had reviewed the evidence from the relevant period, but also

because his opinion was consistent with the objective medical

record. See

.1520c (c)(2) (“The more consistent

a . . . prior administrative medical finding[] is with the

evidence from other medical sources and nonmedical sources in

the claim, the more persuasive the . . . prior administrative

medical finding[] will be.”). However, in contrast to

Discordia’s argument that the ALJ’s opinion relied “wholly” on

Dr. Green’s opinion, Dr. Green’s opinion was far from the only

piece of evidence the ALJ relied on. See Quintana v. Comm’r of

Soc. Sec., No. 04–1341,

, at *1 (1st Cir. Oct. 7

2004) (“This is . . . not a case in which the nonexamining

consultants’ reports were the only evidence of the claimant’s

residual functional capacity.”). In his opinion, the ALJ spent

considerable time reviewing the observations and notes of

Discordia’s treating physicians, which “indicate[d] largely

normal physical examination findings.” Tr. 269. The ALJ also

11 reviewed the objective medical record, including X-Rays of

Discordia’s hips and pelvis, and an MRI arthrogram of her right

hip, which were normal. An MRI of Discordia’s lumbar spine

showed annular tears, but they were only “mild” and showed only

“mild-to-moderate” disc degeneration.

The ALJ found two opinions from two providers

“unpersuasive,” however, even though these providers had

physically examined Discordia. The ALJ found Dr. Rosenberg’s

opinion unpersuasive in part because her treatment notes

primarily consisted of emails between Dr. Rosenberg and

Discordia, which “do not include significant information that is

relevant to evaluating [Discordia’s] work-related functional

limitations.” Tr. 272. Further, many aspects of Dr.

Rosenberg’s conclusory opinion – for example, that Discordia was

unable to sit, walk, or stand for “any length of time” – are

directly contradicted by the objective medical evidence. Tr.

272. The ALJ likewise found Dr. Hamilton’s opinion unpersuasive

because she discussed Discordia’s condition in 2010, six years

before she first began treating Discordia. Before her

treatment, Dr. Hamilton had “no objective basis” to opine about

Discordia’s condition, particularly her Ehlers-Danlos syndrome

which was not diagnosed until 2014. Further, most of Dr.

Hamilton’s notes are from after the relevant period, ending in

March 2016.

12 In conclusion, the ALJ’s opinion relied on Dr. Green’s

opinion to the extent that it was consistent with the objective

medical record and notes from each of Discordia’s treating

physicians, the vast majority of which were consistent with the

ALJ’s determination that Discordia retained the residual

functional capacity to perform light work.

B. Evaluation of Subjective Complaints

Discordia argues that the ALJ’s RFC determination cannot

stand because the ALJ did not properly evaluate her complaints

of pain and other symptoms. I find that the ALJ supportably

discounted her subjective reports regarding the intensity,

persistence, and limiting effects of pain and other symptoms as

not entirely consistent with the medical evidence and other

evidence in the record.

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

claimant’s alleged symptoms and determine the extent to which

those symptoms can reasonably be accepted as consistent with

objective medical evidence and other record evidence.

(a); SSR 16-3p,

, at *2 (Mar. 16,

2016). This involves a two-step inquiry. First, the ALJ must

determine whether the claimant has a “medically determinable

impairment” that could reasonably be expected to produce his

alleged symptoms. SSR 16-3p,

, at *3. Second,

the ALJ evaluates the “intensity, persistence, and limiting

13 effects of [those] symptoms” to determine how they limit the

claimant’s ability to perform work-related activities. Id. at

*4. The ALJ must “examine the entire case record” in conducting

this evaluation, including objective medical evidence, the

claimant’s own statements and subjective complaints, and any

other relevant statements or information in the record. Id.;

see Coskery v. Berryhill,

(1st Cir. 2018).

The ALJ cannot disregard the claimant’s statements about

her symptoms solely because they are unsubstantiated by

objective medical evidence. See SSR 16-3p,

, at

*5. Rather, an inconsistency between subjective complaints and

objective medical evidence is just “one of the many factors” to

consider in weighing the claimant’s statements.

Other factors the ALJ must consider, known as the “Avery

factors” in the First Circuit, include (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. Avery v. Sec’y of Health & Human

Servs.,

(1st Cir. 1986); see

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

14 Avery factor in his written decision for his evaluation to be

supported by substantial evidence. Deoliveira v. Berryhill,

,

, at *5 (D.N.H. Jan. 2, 2019).

Instead, the decision need only “contain specific reasons for

the weight given to the individual’s symptoms, be consistent

with and supported by the evidence, and be clearly articulated

so the individual and any subsequent reviewer can assess how the

adjudicator evaluated the individual’s symptoms.” SSR 16-3p,

, at *9.

Here, the ALJ fully considered Discordia’s testimony as to

her pain and her functional abilities. However, the ALJ found

that “the objective medical evidence of record does not fully

support [her] allegations.” Tr. 269. At the hearing, Discordia

testified that “she can safely lift and carry up to 3 pounds

. . .[,] walk for up to 25 minutes at a time, and . . . sit and

stand up to 20 minutes at a time . . . .” Tr. 268. She also

testified that she “has to frequently lie [down] during the day

due to pain because she has subluxations or dislocations of her

sacrum, neck, shoulders and ribs,” in addition to frequent

migraines and bowel problems. Tr. 268. However, the ALJ found

this testimony inconsistent with Discordia’s own self-reported

activities, which included taking 25-minute walks ten times a

month, performing light housework or preparing “simple meals”

for up to twenty minutes at a time. Tr. 268. She testified to

15 packing, lifting, carrying boxes, and driving during a move in

June 2014, moving heavy boxes for a yard sale in August 2014,

and swimming in Echo Lake in August 2015. Tr. 268; see, e.g.,

Dore v. Saul,

,

, at *5 (D.N.H. Sept.

17, 2019) (“[T]he ALJ gave sufficiently specific reasons for

discounting [plaintiff]’s subjective complaints.”).

In his opinion, the ALJ also cited the inconsistency

between Discordia’s complaints and the objective medical

evidence. The ALJ noted that, regarding her Ehlers-Danlos

Syndrome Type III (hypermobility) diagnosis, the physical

examination findings were “largely normal.” Tr. 269. Treatment

records indicate that, in April 2014, she was performing heavy

workouts, her gait was normal, inspection and X-Rays of her hips

were normal, X-Rays of her pelvis was normal, and Discordia was

able to do activities as tolerated without restriction. Tr.

269. Similarly, the ALJ explained that her recommended

treatment courses were generally conservative, including

prescribed medication, physical therapy, and normal activities,

pain permitting. Contrary to Discordia’s argument, the ALJ did

not conflate her physical therapy activities with leisure

activities she participated in, including hiking, swimming, and

lifting heavy boxes. Tr. 256, 268. The ALJ was entitled to

consider those inconsistencies as a factor in evaluating

Discordia’s subjective complaints.

16 In short, the ALJ offered specific reasons, supported by

the record, for discounting Discordia’s statements concerning

the intensity, persistence, and limiting effects of her pain.

The ALJ’s evaluation is, therefore, entitled to deference.

C. Challenge to Supportability of RFC Finding

Discordia also argues that the record, considered as a

whole, does not support the ALJ’s RFC finding and that the ALJ

failed to consider the entire record when making his findings.

Instead of finding fault with the evidence upon which the ALJ

relied, she merely points to other evidence that she contends

supports a more restrictive RFC. To the extent she is asking me

to reweigh the evidence, I cannot do so. See Irlanda Ortiz,

. I can review only the sufficiency of the evidence,

not its weight, and there was certainly evidence in the record

that a reasonable person would accept as adequate to support the

ALJ’s finding here. See

Notably, the ALJ relied most heavily on the opinion of Dr.

Green, the independent medical expert who gave his opinion based

on his review of the entire record. Dr. Green stated in his

opinion that “the record indicates the claimant was capable of

walking distances and hiking, and she was described as athletic

and an outdoorswoman.” Tr. 272. The ALJ’s RFC finding mirrors

Dr. Green’s opinion. See Tr. 267. The ALJ reasoned that Dr.

Green’s opinion was “most persuasive” “due to his program

17 knowledge, because he reviewed the evidence related to the

relevant time period, and because he explained his opinion in

detail, which is consistent with the objective medical record.”

Tr. 272.

Discordia does not challenge the ALJ’s weighing of the

opinion evidence generally or Dr. Green’s opinion specifically.

But even if she did, I conclude that the ALJ offered adequate

reasons to account for the weight he assigned to Dr. Green’s

opinion. See

(c)(4) (“Generally, the more

consistent a medical opinion is with the record as a whole, the

more weight we will give to that medical opinion.”);

§ 404.1527(c)(6) (“[T]he extent to which a medical source is

familiar with the other information in [a claimant’s] case

record [is among] relevant factors that we will consider in

deciding the weight to give to a medical opinion.”).

Accordingly, I conclude that the ALJ was entitled to rely upon

Dr. Green’s opinion in crafting the RFC.

It is true, as Discordia points out, that there is other

evidence in the record supporting further restrictions to her

RFC. The ALJ did not ignore the evidence on which Discordia

relies; instead, he considered that evidence and reasonably

found that it was inconsistent with other substantial evidence

in the record. Because it is the ALJ’s job to choose between

18 two conflicting views of the evidence, his RFC finding is

entitled to deference. See Purdy,

.

IV. CONCLUSION

Pursuant to sentence four of

(g), I grant

the Commissioner’s motion to affirm (Doc. No. 7) and deny

Discordia’s motion for an order reversing the Commissioner’s

decision (Doc. No. 6). The clerk is directed to enter judgment

accordingly and close the case.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

February 1, 2021

cc: Kevin M. Parrington Christopher G. Roundy

19