UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jennifer Scott

v. Civil No. 13-cv-216-JL Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

SUMMARY ORDER

Jennifer Scott has appealed the Social Security

Administration’s denial of her applications for Disability

Insurance Benefits and Supplemental Security Income, which

claimed an onset date of February 2008. An administrative law

judge at the SSA (“ALJ”) ruled that, despite Scott’s severe

impairments (including, inter alia, osteoarthritis in her knees,

bursitis in her hips, pain disorder in her spine, a dislocated

shoulder, and segmental myocolonus), she retains the residual

functional capacity (“RFC”) to perform jobs that exist in

significant numbers in the national economy, and, as a result, is

not disabled. See

(a), 416.905(a).

The Appeals Council later denied Scott’s request for review

of the ALJ’s decision, see

§§ 404.968(a), 416.1479, so the

ALJ’s decision became the SSA’s final decision on Scott’s

application, see id. §§ 404.981, 416.1481. She appealed the

decision to this court, which has jurisdiction under

(g) (Social Security). Scott has filed a motion to reverse the decision, see L.R. 9.1(b)(1), challenging the ALJ’s RFC

assessment as unsupported by substantial evidence. The

Commissioner of the SSA has cross-moved for an order affirming

the decision, see L.R. 9.1(d), defending the ALJ’s assessment of

Scott’s RFC. For the reasons explained below, the court denies

Scott’s motion, and grants the Commissioner’s.

The ALJ found that Scott had the RFC to perform sedentary

work, see

(a), 416.967(a), with certain

limitations, viz., she can never climb ladders and can only

occasionally climb stairs, stoop, kneel, crouch, or crawl. In

arriving at this conclusion, the ALJ gave only limited weight to

the opinions of Scott’s treating physician, Karen Palmer. In a

“Medical Source Statement of Ability to Do Work-Related

Activities,” Palmer checked boxes indicating that Scott was

limited in several areas of functioning, including, in relevant

part, reaching (in all directions), handling, and fingering--all

of which she could do only occasionally.

As support for these findings, Palmer referred solely to a

“Functional Capacity Evaluation” performed by Christina Howe, an

occupational therapist and “certified work capacity evaluator,”

in April 2011. Howe’s report of this evaluation expressly states

that its “purpose . . . [was] to provide the physician with

documentation for Social Security Disability.” By the time of

2 the examination, in fact, the SSA had already denied Scott’s

request for disability insurance benefits, as well as her request

for reconsideration of that decision.

In Howe’s report of her evaluation, a table lists, under the

heading “Dexterity,” the functions “Reaching Forward,”

“Pinching,” and “Writing,” stating, in the column next to each of

them, “Occasional (up to 1/3 of the day).” The entry next to

“Reaching Forward” further states, “[r]eaching to approximately

30-40 degrees of shoulder flexion to perform table top activities

in standing was tolerated on an occasional basis,” while the

entry next to “Pinching” further states, “[n]o demonstrated

limitation with writing or fine motor coordination though the

client reports paraesthesia’s [sic] with reported fine motor

work.” (The entry next to “Writing” simply refers to the

“Pinching” entry.)

Howe’s full report of the evaluation refers to Scott’s

performance on a “functional capacity evaluation device which

assesses an individual’s ability to perform the physical demands

present in standing, table height and floor level assembly and

disassembly tasks that require dexterity and sustained physical

tolerances.” During this test, the report states, Scott

demonstrated “increased sign[s] of discomfort” and pain, as well

as “difficulty maintaining [an] appropriate work pace” and “poor

3 tolerance” to both “prolonged positioning” and “repetitive

reaching.” The test report further noted that Scott “reported

throbbing and burning in the right shoulder” and, in fact, that

she “was unable to complete the test with the right hand/upper

extremity so she alternated hands.” Howe concluded that these

results “indicate a reliable test placing [Scott] at a below

sedentary level with regard to her perceived lifting ability.”

The ALJ gave Howe’s opinion little weight, calling it “the

product of a one-time examination conducted specifically for the

purposes of disability. Moreover, Ms. Howe is not an acceptable

medical source and her opinion is not entirely consistent with

the evidence as a whole.” The ALJ also, as already noted, gave

“limited weight” to Palmer’s opinion, because it relied upon

Howe’s opinion--the “reliability of [which] is diminished”--and

also because “Palmer’s opinion is not consistent with the

evidence, as discussed throughout [the ALJ’s] decision.”

Scott argues that the ALJ erred in giving limited weight to

Palmer’s opinion that Scott could perform reaching, handling, and

fingering tasks only on an occasional basis, since Palmer was one

of Scott’s treating physicians. An ALJ must give controlling

weight to the opinions of a treating physician only “[i]f [the

ALJ] find[s] that a treating source’s opinion on the issue(s) of

the nature and the severity of [the claimant’s] impairment(s) is

4 well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other

substantial evidence in [her] case record.”

(d)(2), 416.927(c)(2).

As just noted, the ALJ found that Palmer’s opinion as to the

severity of Scott’s impairments was neither well-supported--

relying, as it did, solely on Howe’s report of the functional

capacity analysis--nor consistent with other evidence in the case

record.1 Scott does not persuasively demonstrate that these

findings were erroneous. In fact, aside from Howe’s report,

Scott does not point to anything in the record supporting

Palmer’s view of Scott’s handling and fingering abilities, and,

as discussed below, the ALJ acted properly in giving little

weight to the only other evidence Scott identifies (the report of

a non-examining state agency physician) in support of Palmer’s

view of Scott’s reaching abilities.

1 Accordingly, there is no merit to Scott’s suggestion that, even if the ALJ properly declined to give Palmer’s opinion controlling weight, he nevertheless failed to explain the weight he did give it (which, as just noted, was “limited”). See

(c)(3)-(4), 416.927(c)(3)-(4) (listing supportability and consistency with the record as a whole as among the factors to be considered in weighing the opinion of a medical source). An ALJ need provide only “‘good reasons in his decision for the weight he gave to the [medical] opinions,’” even when those opinions come from a treating source. Chapin v. Astrue,

(Laplante, J.) (quoting Oldham v. Astrue,

(10th Cir. 2007)).

5 As to Palmer’s reliance on Howe’s test results, Scott says

only that the testing “was conducted upon referral from” another

one of her treating physicians, Dr. Simon Faynzilberg. As this

court has recognized, however, the results of functional capacity

testing performed by a physical therapist, like Howe, are not

“evidence from acceptable medical sources” but simply “evidence

from other sources,”

, 416.913, and, as

such, the ALJ need only “‘discuss at least some of [the]

reasons’” for the weight he accords such results. Ferland v.

Astrue,

(McAuliffe, J.) (quoting and adding

bracketing to Titles II and XVI: Considering Opinions and Other

Evidence From Sources Who Are Not “Acceptable Medical Sources” in

Disability Claims, SSR 06-03p,

, at *3 (SSA

2006)). The ALJ did so here, explaining that Howe’s observations

were “the product of a one-time examination conducted

specifically for the purposes of disability” and that they were

“not entirely consistent with the evidence as a whole.” That is

a sufficient basis for giving little weight to Howe’s

conclusions. See

In her motion to reverse the ALJ’s decision, Scott does not

address this reasoning, i.e., she does not dispute that Howe

tested her specifically “to provide the physician with

documentation for Social Security Disability,” nor does she

6 identify any record evidence that is, in fact, consistent with

Howe’s test results. Scott merely states that “Palmer’s opinion

concerning manipulative limitations” (which, again, was based

solely on the results of Howe’s functional capacity testing) “is

supported by the most recent RFC assessment completed by” Dr. Syd

Foster, whom the parties identify as a “state agency reviewing

physician” who did not examine Scott. Unlike Palmer and Howe,

though, Foster opined that Scott had no limitations on handling

or fingering--and Scott does not point to anything else in the

record supporting the view that Scott could only occasionally

manage those activities. The ALJ properly found, then, that

Howe’s opinions that Scott could only occasionally perform

handling and fingering tasks were inconsistent with (which is to

say, completed unsupported by) the balance of the record.

While Foster did agree with Palmer and Howe that Scott was

limited to occasional overhead reaching, the ALJ specifically

noted that “the evidence does not sufficiently support

limitations in reaching.” Of course, “the opinions of State

agency . . . physicians and psychologists can be given weight

only insofar as they are supported by evidence in the case

record, considering such factors as the supportability of the

opinion in the evidence.” Titles II and XVI: Consideration of

Administrative Findings of Fact by State Agency Medical and

7 Pyschological Consultants and Other Program Physicians at the

Administrative Law Judge and Appeals Council Levels of

Administrative Review; Medical Equivalence, SSR 96-6p,

, at *3 (SSA 1996). Scott’s motion to reverse does not

address the ALJ’s observation that Foster’s view of Scott’s

reaching abilities was unsupported by the record but, in any

event, that observation is on the mark.

As the ALJ noted, Scott complained of discomfort in her

right wrist at a visit to her doctor in May 2007, when she was

diagnosed with carpal tunnel syndrome. Despite numerous medical

appointments in the interim, however, Scott did not mention any

problems with her right arm or hand again until March 2010. Over

the next several months, Scott continued to complain of pain and

numbness in her right shoulder and arm, but the results of

physical examinations and other tests on her right arm and hand

were essentially normal (though, in May 2010, a nerve conduction

study indicated mild carpal tunnel syndrome in both wrists, as

the ALJ noted). Significantly, Scott demonstrated a normal range

of motion and strength in her right arm and hand more or less

throughout these examinations and, while Scott’s neurologist

restricted her lifting, he imposed no restrictions on reaching

(or, for that matter, any other manipulative activity). Though

Scott made complaints of pain and instability in her right

8 shoulder into 2011, she continued to show a normal range of

motion and strength in right upper extremity throughout that year

and, indeed, at an appointment in mid-October 2011--just a few

weeks prior to her hearing before the ALJ--Scott told a provider

that “her shoulder was more stable, and her strength was better.”

The ALJ properly relied on this evidence to find that “the

evidence does not sufficiently support [the] limitations in

reaching” noted by Foster. See, e.g., Santiago v. Astrue,

(Laplante, J.). Again, Scott does not identify any

such support in the record (apart from, again, the results of

Howe’s functional capacity testing that Palmer adopted).

Instead, Scott argues that the ALJ simply “substitut[ed] his

lay judgment for that of the medical experts” in rejecting the

opinions of Palmer and Foster that Scott’s reaching ability was

limited. That sort of thing is impermissible for sure, see,

e.g., Nguyen v. Chater,

(1st Cir. 1999), but it

did not happen here. In finding that Scott was capable of

sedentary work with only postural--and hence, without

manipulative--limitations, the ALJ expressly relied on “the

residual functional capacity conclusions reached by the

physicians employed by the State Disability Determination

Services.” These non-examining physicians included not only

Foster, but also Dr. Pat Chan, who, in May 2010, specifically

9 found that Scott suffered from no manipulative limitations

(though he noted she had been recently seen for pain in her right

hand, he also noted that her range of motion “is normal and she

has a good hand grip”).2

Scott maintains that the ALJ could not have properly based

his determination of her RFC on Chan’s opinion because he “was

unaware of the subsequent medical evidence reflecting [her]

carpal tunnel diagnosis, the objective clinical findings that led

to the diagnosis, and treatment and evidence reflecting

manipulative limitations associated with [her] shoulder

impairment.” It is true that “[a] state agency consultant’s

opinion that is based on an incomplete record, when later

evidence supports the claimant’s limitations, cannot provide

substantial evidence to support the ALJ’s decision to deny

2 Unlike Foster, Chan also found that Scott did not suffer from any postural limitations--so, ultimately, the ALJ adopted Foster’s view of Scott’s postural limitations, and Chan’s view of Scott’s manipulative limitations. Scott suggests that, in doing so, the ALJ was improperly “pick[ing] and choos[ing] from the RFCs of record sub silentio to craft his findings.” As just discussed at some length, however, the ALJ adequately explained why, as he put it, “the evidence does not sufficiently support limitations in reaching” of the sort identified by Foster. So long as an ALJ provides such an explanation, he is free “to piece together the relevant medical facts from the findings and opinions of multiple physicians,” rather than adopting wholesale the RFC findings of a “single physician.” Evangelista v. Sec’y of HHS,

(1st Cir. 1997).

10 benefits.” Swanburg v. Astrue,

(citing cases)

(Barbadoro, J.). But that did not happen here either.

First, Scott’s carpal tunnel diagnosis was first reached in

May 2007--some three years before, rather than after, Chan

completed his evaluation.3 Second, and more importantly, Scott’s

treatment history from the spring of 2010 through the fall of

2011 contains no “evidence reflecting manipulative limitations

associated with [her] shoulder impairment.” To the contrary, as

just discussed, those records reflect that Scott consistently

demonstrated a normal range of motion and strength in her

shoulder, and none of her treating physicians identified any

manipulative limitations during that time--aside from Palmer,

whose opinions on that score were based entirely on Howe’s report

and, as the ALJ supportably found, were therefore not entitled to

much weight. An ALJ can properly rely on a state agency

3 Scott asserts that “the ALJ’s failure to even consider [her] medically-diagnosed carpal tunnel syndrome constituted serious error.” But the ALJ specifically noted that “[n]erve conduction studies of the upper extremities showed mild bilateral carpal tunnel syndrome”--and went on to explain, as already discussed at length, why he found that Scott nevertheless suffered from no manipulative limitations (which, of course, neither the neurologist who performed the nerve studies nor any other treating physician apart from Palmer had ever identified). Thus, insofar as Scott is arguing that the ALJ erred by not identifying her carpal tunnel syndrome as a severe impairment, that error was of no moment, since the ALJ took Scott’s carpal tunnel syndrome into account in determining her RFC. See Pompa v. Comm’r of Soc. Sec., 73 Fed. App’x 801, 803 (6th Cir. 2003).

11 physician’s assessment, notwithstanding the claimant’s subsequent

medical history, when nothing in that history substantially

undermines the assessment. See, e.g., Comeau v. Colvin,

, aff’d, No. 13-2542 (1st Cir. June 25, 2014).

As this court has recognized, an ALJ can rely “exclusively

on the assessments of non-testifying, non-examining physicians”

in adjudicating a claimant’s RFC, and conflicts between those

assessments and other medical testimony “are for the ALJ to

resolve.” Morin v. Astrue,

(citing Berrios

Lopez v. Sec’y of HHS,

(1st Cir. 1991) and

Tremblay v. Sec’y of HHS,

(1st Cir. 1982)).

Furthermore, “[t]he ALJ decision to resolve that conflict against

the claimant should be affirmed if “‘that conclusion has

substantial support in the record.’”

(quoting Tremblay,

). For the reasons just discussed, substantial

evidence supports the ALJ’s decision to rely on Chan’s opinion

that Scott did not suffer from any manipulative limitations,

rather than Foster’s opinion that Scott was limited to occasional

overhead reaching, or Palmer’s opinion that Scott was limited to

occasional reaching, handling, and fingering.

12 For the foregoing reasons, Scott’s motion to reverse the

ALJ’s decision4 is DENIED, and the Commissioner’s motion to

affirm that decision5 is GRANTED. See

(g). The

clerk shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: August 8, 2014

cc: Tamara N. Gallagher, Esq. Karen B. Fitzmaurice, Esq. Robert J. Rabuck, AUSA T. David Plourde, AUSA

4 Document no. 8. 5 Document no. 10.

13