Allard v. SSA CV-13-82-JL 2/21/14
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Kellie Allard
v. Crvrl No. 13-CV-82-JL Opinion No. 2014 DNH 034 Carolyn W. Colvin, Commissioner, Social Security Administration
SUMMARY ORDER
Kellie Allard has appealed the Social Security
Administration's denial of her application for Supplemental
Security Income ("SSI"), which claimed an onset date (as amended)
of July 2, 2010. An administrative law judge at the SSA ("ALU")
ruled that, while Allard suffered from severe impairments
(bipolar disorder, anxiety disorder, personality disorder, and
obesity), she retained the residual functional capacity ("RFC")
for sedentary work with specified limitations, allowing her to
perform jobs that exist in the national economy in significant
numbers and, as a result, is not disabled. See 20 C.F.R.
§ 416.905(a). The Appeals Council later denied Allard's request
for review of the ALU's decision, see id. § 416.1479, so the
ALU's decision became the SSA's final decision on DP's
application, see id. § 416.1481. Allard appealed the decision to this court, which has jurisdiction under 42 U.S.C. § 405(g)
(Social Security).
Allard has filed a motion to reverse the decision, see L.R.
9.1(b)(1), challenging it as unsupported by substantial evidence.
Specifically, Allard argues that the ALJ erred by
(1) discrediting her claims of disabling symptoms,
(2) giving little weight to the opinions of a nurse practitioner
who treated Allard, and a psychologist who did not, and giving
great weight to the opinion of a different non-treating
psychologist instead, and (3) failing to consider the SSA's prior
determination that Allard was, in fact, disabled.1 The
Commissioner of the SSA has cross-moved for an order affirming
the decision, see L.R. 9.1(d), defending the ALJ's findings. As
explained below, the court denies Allard's motion, and grants the
Commissioner's.
'in a one-sentence footnote, Allard states that "nothing in the ALJ's decision or the [vocational expert's] testimony supports the finding that a total of three types of jobs with a total of 400 available positions to claimant represent a significant number of jobs within the regional economy, especially when one of the jobs is based upon available tourism." This argument is insufficiently developed to warrant the court's attention. "It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
2 1. Credibility of Allard's claimed symptoms
Allard testified at the hearing that her "sleep is so
erratic that I never know if I'm going to get a full night's
sleep" or "sleep at all," causing her to "worry that I'm not
going to get up on time" or "that I'll be tired all day." Noting
that Allard had "alleged disabling limitations because of erratic
sleep and bipolar disorder," the ALJ found that Allard's
"medically determinable impairments could reasonably be expected
to cause the alleged symptoms." The ALJ also found, however,
that "the medical findings do not support the existence of
limitations greater than" those incorporated in the ALJ's RFC
determination, as well as that Allard's "statements concerning
the intensity, persistent, and limiting effects of these symptoms
are not credible to the extent they are inconsistent with [RFC]
assessment." Again, that assessment was that Allard retained the
RFC to perform sedentary work so long as it was "limited to
simple, repetitive . . . tasks, assuming normal work breaks over
an eight hour day, where there is only simple decisionmaking or
judgment required, where there is [sic] few, if any workplace
changes, where there is no production rate or pace work, and
where there is only occasional interaction with the public."
This ALJ's analysis of Allard's claimed sleep problems was
consistent with SSR 96-7p, Titles II and XVI: Evaluation of
3 Symptoms in Disability Clairas: Assessing the Credibility of an
Individual's Statements, 1996 WL 374186 (S.S.A. 1996). SSR 96-7p
"outlines a specific staged inquiry that consists of the
following questions, in the following order: (1) does the
claimant have an underlying impairment that could produce the
symptoms he or she claims?; (2) if so, are the claimant's
statements about his or her symptoms substantiated by objective
medical evidence?; and (3) if not, are the claimant's statements
about those symptoms credible?" Scanlon v. Astrue, 2013 DNH 088,
11 (quotation marks omitted). The ALJ properly followed this
procedure in finding that Allard's testimony as to her sleep
disturbances was not entirely credible.
Specifically, the ALJ found that
treatment notes [from Jennifer Ganem, a nurse practitioner who treated Allard] revealed some difficulty in sleeping at times [but] those difficulties were short lived and attendant [to] changes in [her] medications. Overall, the record reflects that [Allard] slept soundly for approximately five hours a night. Moreover, [she] stated to examining physician John C. Gorman, MD of Nashua Rheumatology that she sleeps well and feels refreshed upon awakening while on Trazadone.
(record citations omitted). Allard argues that the ALJ arrived
at this conclusion only by "cherry-picking certain terms in the
reports while ignoring [their] essence" or, as she describes it
later in her motion, their "spirit." In the court's view.
4 however, the ALJ acted within her discretion in rejecting, as not
credible, Allard's statement that she was disabled by her erratic
sleep, because there is substantial evidence--including, but not
limited to, Ganem's treatment notes--to support that finding.
First, the ALJ fairly characterized Ganem's treatment notes.
Allard saw Ganem on a regular basis (on average, every other
month or so) for a roughly two-year span, between July 2009 and
June 2011. Each time, Allard reported she had been sleeping
soundly for around 5 hours a night, with the exception of two
periods: consecutive visits in February and April 2010 and a
series of four visits in February and March 2011.2 After this
first period of sleep difficulty, however, Allard reported, in
June 2011 (having not sought treatment from Ganem since March)
that she had been "sleeping soundly" for around 5 hours a night,
though she "continu[ed] to be tired." Allard did not see or call
Ganem again until September 2010, when she again reported 5 hours
of sound sleep each night and made no complaint of fatigue.
After the second period of sleep difficulty, Allard reported, in
April 2011, that she had been "sleeping soundly" for at least 5
hours a night; while she also complained of feeling "tired all
2Allard also complained of trouble sleeping in telephone calls to Ganem at different times (in September 2009 and November 2010) but in each case, reported within several days that she had returned to sleeping soundly for around 5 hours each night.
5 day," at her next visit to Ganem, in May 2011, Allard described
her sleep as both "sound" and "very nice." So the ALJ
supportably found that Ganem's notes reflected merely "some
difficulty in sleeping at times" and that, in general, Allard
"slept soundly for approximately five hours a night."
Second, the ALJ also accurately found that Allard had told
John Gorman, a rheumatologist she visited in late May 2011, that
"she sleeps well on the trazadone"--one of the drugs, she
reported, that had "straightened out" her bipolar disorder--and
that she "feels refreshed upon awakening" (though she also
reported "variable [morning] stiffness and daytime fatigue"). Of
course, "[o]ne strong indication of the credibility of an
individual's statements is their consistency . . . with other
information in the case record . . . . Especially important are
statements made to treating or examining medical sources." SSR
96-7p, 1996 WL 374186, at *5. Yet Allard's motion does not
meaningfully address the ALJ's reliance on the report of the
visit to Gorman.3
3Allard states, without further exposition, that the report "specifically notes that [Allard] suffers from daytime fatigue." Gorman, however, attributed the fatigue to fibromyalgia, not to sleep disturbances (in a finding Allard does not question, the ALJ treated fibromyalgia as a non-severe impairment because "the record fails to show that [Allard] receives any ongoing treatment for [it]"). So Gorman's notation of Allard's complaint of daytime fatigue does not undermine the ALJ's finding that
6 Third, the ALJ also found that, in Allard's testimony at the
hearing, she had "described daily activities that are not limited
to the extent one would expect, given the complaints of disabling
symptoms and limitations." In particular, the ALJ noted that
Allard testified to driving, grocery shopping, cooking, sweeping,
making the beds, and washing dishes and clothes, as well as to
socializing with friends.4 While Allard argues that this
inaccurately characterizes her statements at the hearing, this
argument relies principally on her testimony that her activities
were more limited on what Allard called her "bad days," which she
estimated to be three days every week.5 The ALJ specifically
addressed this testimony in her decision, however, noting that
Allard's claims of disabling sleep disturbances were not fully credible.
4Allard correctly points out that she did not testify to making the beds and, in fact, stated that she did not because "[n]o one is going to see it." This error is insignificant in light of the other errands and chores, just listed, that Allard said she does (even if, as she now emphasizes, she testified that she does not do them all every single day).
5Allard also argues that the ALJ ignored "the limitations faced by the claimant while driving . . . due to confusion and memory lapses caused by her medical conditions." Although Allard testified that, while driving, she "would sometimes draw a blank" as to her destination, she does not point to anything in the record attributing these "memory lapses" to her "medical conditions." Allard's occasional forgetfulness while driving, then, does not undermine the ALJ's reliance on Allard's driving as evidence that her allegations of disabling sleep disturbances and bipolar disorder were not fully credible.
7 this "limitation is not supported in the record and cannot be
objectively verified with any reasonable degree of certainty."
Allard does not question this reasoning in her motion.
The ALJ further observed that "Allard was apparently able to
care for her thirteen year old daughter at home." Allard argues
that "nothing within the four corners of the ALJ's decision
supports this finding," nor the conclusion that "living in a
condominium with a thirteen year old daughter represents an
activity of daily living inconsistent with the existence of a
disabling condition." But Allard herself testified that she
lives, alone, with her 13-year old daughter, and that, while her
daughter made herself breakfast and "was supposed to" do the
dishes and the sweeping, Allard would "sometimes" wash the
dishes, "usually" did the sweeping, and would also wash her
daughter's clothes and drive her to basketball. In fact, Allard
described herself as "the maid." Furthermore, the ALJ did not
rely on the evidence of Allard's activities in caring for her
daughter to find that Allard was not disabled, but, rather, to
find that her complaints of disabling symptoms were not entirely
credible. That is an appropriate use of evidence of a claimant's
daily activities. See, e.g.. Mason v. Astrue, 2013 DNH 013, 14.
The ALJ did not err in assessing the credibility of Allard's
claims of disabling symptoms.
8 2. Opinion evidence
Allard also argues that the ALJ improperly gave little
weight to the opinions of Ganem, the nurse practitioner who
treated Allard between June 2009 and July 2011, and Dr. Stephanie
Lynch, a psychologist who examined Allard on behalf of the State
of New Hampshire in December 2010. In December 2010, Ganem
completed a "mental impairment guestionnaire" about Allard. The
guestionnaire stated that Ganem had diagnosed Allard with bipolar
II disorder with obsessive-compulsive disorder ("OCD") traits,
identifying a number of signs and symptoms by checking off items
from a pre-set list, and indicating a number of functional
limitations by circling a degree of limitation in each of four
categories.6 Ganem checked a box indicating that Allard's
"impairments or treatments" would "cause [her] to be absent from
work . . . [m]ore than three times a month," and circled "yes" in
response to the guestion, "Would your patient have difficulty
working at a regular job on a sustained basis?" Ganem stated
that Allard "has sleep disturbances during the night which cause
6In particular, Ganem indicated that Allard faced "continual episodes of decompensation or deterioration in work or work-like settings." The ALJ, however, gave little weight to this opinion, pointing out Ganem's lack of "further documentation of those episodes." In her motion, Allard does not point to any such documentation or otherwise guestion this finding, so the court has not scrutinized it.
9 her to be tired during the day." Later, in July 2011, Ganem
wrote a letter "To Whom It May Concern" stating that, while she
was treating Allard for her bipolar II disorder with OCD traits,
Allard "continues to have moderate symptoms despite her treatment
and remains unable to work at this time."
As an initial matter, the ALJ noted that Ganem "is a
clinician who is not an acceptable medical source." That is
correct, see 20 C.F.R. § 416.913(a), with the result that Ganem's
views are not entitled to the deference reserved for "medical
opinions." See Titles II and XVI: Considering Opinions and
Other Evidence From Sources Who Are Not "Acceptable Medical
Sources" in Disability Claims, SSR 06-03p, 2006 WL 2329939, at *2
(SSA 2006). It is true that, as Allard points out, that opinions
from so-called "other medical sources" like nurse practitioners
"should be evaluated on key issues such as impairment severity
and functional effects, along with the other relevant evidence in
the file," and the ALJ "generally should explain the weight given
to opinions from these 'other sources.'" Id. at *3. But, as
explained below, the ALJ did that here.
As the ALJ also noted, "[s]tatements that a claimant is
. . . 'unable to work' ... or the like are not medical opinions
but are administrative findings . . . reserved to the
Commissioner." That is also correct— such opinions have "no
10 special significance." See 20 C.F.R. § 416.927(d)(3).
Nevertheless, the ALJ "must always carefully consider medical
source opinions about any issue, including opinions about issues
that are reserved to the Commissioner," and "must explain the
consideration given to the treating source's opinion (s)." Social
Security Ruling 96-5p, Titles II and XVI: Medical Source Opinions
on Issues Reserved to the Commissioner, 1996 WL 374183, at *2-*3
(S.S.A. 1996). But, again, the ALJ did that here.
First, the ALJ noted that Ganem's opinion is "not consistent
with the weight of the evidence, particularly her own mental
status examinations of" Allard. In these examinations, the ALJ
noted, Allard "consistently demonstrated calm, cooperative and
easily engaging behavior, a euthymic mood, a full range of affect
and appropriate eye contact. Her speech was consistently normal
and there was no evidence of a thought disorder or mania." In
her motion, Allard does not question the ALJ's characterization
of the mental status examinations, nor their inconsistency with
Ganem's opinions that Allard's symptoms would prevent her from
working. (As discussed above, Allard contests the ALJ's finding
that Ganem's treatment notes failed to support her opinion that
Allard's sleep problems disabled her from working, but that
finding was supported by substantial evidence.) Of course, one
of the factors for the ALJ to consider in weighing opinion
11 evidence is its consistency with the record as a whole. See 20
C.F.R. § 416.927 (c) (4) .
Second, the ALJ observed that Ganem's opinions "relied quite
heavily on the subjective report of symptoms and limitations
provided by" Allard, even though "there remain good reasons for
questioning the reliability of [her] subjective complaints." As
just discussed, the ALJ supportably found that Allard's claims of
disabling symptoms were not fully credible, and, in any event, an
ALJ need not give great weight to opinions "that rely more on the
claimant's subjective reports to [the physician] than they rely
on [the source's] own observations or clinical findings."
Scanlon, 2013 DNH 088, 9 n.2. The ALJ, then, provided the
requisite "good reasons" for giving little weight to Ganem's
opinions that Allard would "have difficulty working at a regular
job on a sustained basis," would be absent from work "more than
three times a month," and "remains unable to work"--which, after
all, were merely the opinions of an "other medical source" on
issues reserved to the Commissioner.
The ALJ also supportably found that the opinions of Dr.
Lynch, the state agency psychologist, were entitled to little
weight. After examining Allard in December 2010, Lynch diagnosed
her with bipolar disorder and anxiety disorder with panic
attacks. Lynch found that Allard could nevertheless communicate
12 effectively and interact appropriately with others in superficial
social situations; concentrate on and persist to complete
concrete tasks at a slow pace; and interact with supervisors in a
calm and quiet schedule. (Those findings, of course, are more or
less consistent with the ALJ's RFC determination, and Allard does
not argue to the contrary.) Lynch also wrote, however, that she
"did not believe that [Allard] would be able to maintain a
regular schedule as [she] has to be reminded to set an alarm,
spends many of her days lying down, and avoids going out alone."
In giving little weight to this aspect of Lynch's opinion,
the ALJ observed that "Dr. Lynch is only an examining physician
who apparently relied quite heavily on the subjective report of
symptoms and limitations reported by the claimant and seemed to
accept uncritically as true most, if not all, of what [she]
reported." Once again, the ALJ supportably found that Allard's
complaints of disabling symptoms were not fully credible, and the
ALJ was entitled to take that into account in assessing the
validity of a medical opinion based on those same complaints.
See, e.g., Martel v. SSA, Comm'r, 2013 DNH 157, 30-32 . The ALJ
was also entitled to rely on the fact (as she did) that Lynch was
an examining, rather than a treating, source. See 20 C.F.R.
§ 416.927(c)(2)(I). The ALJ did not err in her consideration of
Lynch's view that Allard could not maintain a regular schedule.
13 Allard also criticizes the ALJ's decision to give "great
weight" to the opinion of another state agency psychologist. Dr.
Patricia Salt. Based on a review of Allard's medical records as
of mid-October 2010, Salt concluded that Allard suffered from
bipolar, anxiety, and personality disorders, but only mild or
moderate limitations in activities of daily living, maintaining
social functioning, and maintaining concentration, persistence,
or pace. Salt also completed a mental RFC evaluation concluding,
among other things, that Allard could perform activities within a
schedule, be punctual within customary tolerance, perform at a
consistent pace without an unreasonable number of rest periods,
and complete a normal 8-hour work day and 40-hour work week
without interruption from psychological symptoms.
In giving great weight to Salt's opinions, the ALJ
recognized that they were "from a non-examining expert source"
but called them "well supported and not inconsistent with the
other record evidence." Allard complains that the ALJ "never
discusses what Dr. Salt's opinions are or why they are well
supported and not inconsistent with the other substantial
evidence." The ALJ, however, referred to Salt's opinion
(correctly) as a "finding of non-disability"--and, as should be
apparent by now, discussed at length in her decision the "other
substantial evidence," none of which, in her view, persuasively
14 showed that Allard was disabled by sleep disturbances or other
symptoms of her psychological impairments as she claimed. Again,
that finding was supported by substantial evidence. It is
unclear, then, what else the ALJ needed to say to explain why
Salt's opinion was "not inconsistent with the other substantial
evidence."7
Allard also points out that, because Salt's findings were
"based on medical evidence current through September 2010," they
"failed to include, address or consider [Allard's] additional
twelve months of mental health treatment and assessments up
through October 2011." But this argument overlooks the fact that
the opinions of both Lynch and Ganem--which, again, Allard faults
the ALJ for not adopting--were rendered within two months of
Salt's (on December 1, 2010 and December 13, 2010, respectively)
and were therefore based on more or less the same temporal
universe. An ALJ does not err by failing to discount an opinion
harmful to the claimant as stale when it is of roughly the same
vintage as the opinions in the record that are helpful to the
7Other judges of this court have demanded a more detailed explanation for crediting the opinions of a nonexamining source where "the opinions of the nonexamining physician and claimant's treating physician are [] dramatically different." Mendoza v. Astrue, 2011 DNH 073, 11-12 (McAuliffe, J.); see also Swanburg v. Astrue, 2012 DNH 071, 18 (Barbadoro, J.). But that is not the case here, where no treating physician has ever found that Allard's symptoms would prevent her from working.
15 claimant. See Chapin v. Astrue, 2012 DNH 177, 11-12. Moreover,
Allard does not point to anything in the records of her treatment
from October 2010 onward that undermines Salt's opinions; to the
contrary, as already discussed, the ALJ supportably found that
those records were inconsistent with Allard's claims of disabling
symptoms. The ALJ did not err in relying on Salt's opinions.
As this court has recognized, an ALJ can rely "exclusively
on the assessments of non-testifying, non-examining physicians"
in adjudicating a claimant's disability, and conflicts between
those assessments and other medical testimony "are for the ALJ to
resolve." Morin v. Astrue, 2011 DNH 091, 9-10 (citing Berrios
Lopez v. Sec'y of HHS, 951 F.2d 427, 431-32 (1st Cir. 1991) and
Tremblay v. Sec'y of HHS, 676 F.2d 11, 12 (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.'" Id. (quoting Tremblay, 676
F.2d at 12) . For the reasons just discussed, the ALJ's decision
readily satisfies that standard here--where no treating physician
has ever opined that Allard suffers from disabling symptoms.
3. Prior disability determination
Finally, Allard criticizes the ALJ's handling of the SSA's
prior award of SSI benefits to Allard, in January 2009. In March
16 2009, the SSA had notified Allard that she was in fact not due
any such benefits because her income, in the form of child
support payments, disqualified her. In her decision, the ALJ
reasoned that Allard's reliance on the prior award "was not well
placed" because her application at issue at the hearing was
"filed more than a year after the [prior] decision" and Salt's
opinion that Allard was not disabled was "based upon current
evidence, evidence that did not exist until five months after the
prior decision."
Contrary to Allard's accusation, then, the ALJ did not
"willfully ignore" the prior award of SSI benefits in January
2009. She considered it and found that it did not support
Allard's subsequent application for SSI benefits--which, as
amended, claimed an onset date of July 2010--due to evidence that
had emerged in the interim. Allard does not question this
reasoning. Instead, she complains that "before the issuance of
the ALJ's decision, and without notice to the claimant," her
August 2008 applications for SSI benefits (which resulted in the
March 2009 award) "were added to the file," so that she "never
had the opportunity to review [this] material prior to the ALJ's
decision." But, even putting aside the fact that it was Allard
who filed those applications and, presumably, knew what was in
17 them, she does not explain what effect they had on the ALJ's
decision (which does not refer to them).8
Moreover, the record makes clear that Allard was aware of
both the prior award and its discontinuance by the time of the
hearing, where her counsel argued that the ALJ should consider
the "prior determination" that Allard was entitled to SSI.
Again, the ALJ did so, and found that it did not support Allard's
subsequent application for SSI. That finding was supported by
substantial evidence (again, Allard does not argue otherwise).
There was no error in the ALJ's handling of the SSA's January
2009 award of SSI benefits.
8Allard states that, "if [she] had been given notice of the proposed addition of evidence, [she] would have argued that since the ALJ had access to the prior claims file, the ALJ should have produced the [SSA's] rationale and medical findings in support of its prior finding that the claimant was disabled due to mental illness." The court does not follow this line of argument. As noted infra, Allard's counsel was aware of both the prior award and its revocation by the time of the hearing before the ALJ, but did not ask the ALJ for production of the claims file or any other relief (counsel asked only that the ALJ take the award into consideration which, as just discussed, she did). This court can hardly fault the ALJ for failing to provide a claimant with relief that her attorney could have requested, but did not. See Faria v. Comm'r of Soc. Sec'y, 187 F.3d 621 (table), 1998 WL 1085810, at *1 (1st Cir. Oct. 2, 1998).
18 For the foregoing reasons, Allard's motion to reverse the
ALJ's decision9 is DENIED, and the Commissioner's motion to
affirm the ALJ's decision10 is GRANTED. The clerk shall enter
judgment accordingly and close the case.
SO ORDERED.
Jo/ United hited States District Judge
Dated: February 21, 2014
cc: Mark J. Alves, Esq. Roger D. Turgeon, Esq. Robert J. Rabuck, AUSA
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