Angela Deoliveira1 v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration

2019 DNH 001

• Court: District Court, D. New Hampshire
• Decided: January 2, 2019
• Docket: 17-cv-671-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Angela Deoliveira1

v. Civil No. 17-cv-671-JL Opinion No. 2019 DNH 001 Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Angela Deoliveira moves to reverse the decision of the

Acting Commissioner of the Social Security Administration

(“SSA”) to deny her applications for Social Security disability

insurance benefits (“DIB”) under Title II of the Social Security

Act, 42 U.S.C. § 423, and for supplemental security income

(“SSI”) under Title XVI, 42 U.S.C. § 1382. The Acting

Commissioner, in turn, moves for an order affirming her

decision. For the reasons that follow, the decision of the

Acting Commissioner, as announced by the Administrative Law

Judge (“ALJ”) is affirmed.

I. Standard of Review

The applicable standard of review provides, in pertinent

part:

1 Claimant’s last name is spelled several different ways in the record. The court uses the spelling that appears in her motion to reverse the Acting Commissioner’s decision. 1 The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

42 U.S.C. § 405(g) (setting out standard of review for decisions

on claims for DIB); see also 42 U.S.C. § 1383(c)(3) (applying

§ 405(g) to SSI decisions). However, the court “must uphold a

denial of social security disability benefits unless ‘the

[Acting Commissioner] has committed a legal or factual error in

evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS,

76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v.

Hudson, 490 U.S. 877, 885 (1989)).

As for the standard of review that applies when an

applicant claims that an SSA adjudicator made a factual error,

[s]ubstantial-evidence review is more deferential than it might sound to the lay ear: though certainly “more than a scintilla” of evidence is required to meet the benchmark, a preponderance of evidence is not. Bath Iron Works Corp. v. U.S. Dep’t of Labor, 336 F.3d 51, 56 (1st Cir. 2003) (internal quotation marks omitted). Rather, “[a court] must uphold the [Acting Commissioner’s] findings . . . if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [her] conclusion.” Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) (per curiam).

Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

2 In addition, “‘issues of credibility and the drawing of

permissible inference from evidentiary facts are the prime

responsibility of the [Acting Commissioner],’ and ‘the

resolution of conflicts in the evidence and the determination of

the ultimate question of disability is for [her], not for the

doctors or for the courts.’” Id. (quoting Rodriguez, 647 F.2d

at 222). Thus, the court “must uphold the [Acting

Commissioner’s] conclusion, even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence.” Tsarelka v. Sec’y of HHS, 842 F.2d 529,

535 (1st Cir. 1988) (per curiam).

II. Background

The parties have submitted a Joint Statement of Material

Facts. That statement2 is part of the court’s record and is

summarized here, not repeated in full.

Since April of 2014, Deoliveira’s medical history has

included at least five trips to emergency rooms or urgent care,

and she has received treatment from approximately a dozen

different medical professionals.

One of Deoliveira’s trips to the emergency room took place

in October of 2016, about 10 days after she was involved in a

motor-vehicle accident in which she suffered a “whiplash-type

2 Document no. 10. 3 injury and head injury posteriorly.” Administrative Transcript

(hereinafter “Tr.”) 852. She presented at the emergency room

with “a severe diffuse headache,” id., which represented an

increase in severity over the moderate headaches she had been

having over the 10 days after her accident. The medical note

generated by Deoliveira’s October 2016 emergency-room visit also

states:

Patient does give a history of prior CVA in 2008 . . . and final diagnosis was left ICA dissection with resultant complete occlusion and treated with anticoagulation x1 year, followed by daily aspirin.

Id. CVA is an “[a]bbreviation for cerebrovascular accident”

Stedman’s Medical Dictionary 474 (28th ed. 2006), which is “an

imprecise term for cerebral stroke,” id. at 10.

On November 9, 2016, Deoliveira saw a neurologist, Dr.

Sachin Dave, who noted both her stroke and her recent motor-

vehicle accident. His examination findings include the

following: “CORTICAL FUNCTIONS: alert and oriented X 3,

comprehension and language intact, speech fluent.” Tr. 1010.

Based upon his examination, he gave diagnoses of headache,

cervicalgia, and concussion syndrome, and he offered this

explanation:

“She . . . had [a motor-vehicle accident] last month with

possible head injury or concussion and whiplash type neck

injury.” Id.

4 In addition to the diagnoses in Dr. Dave’s note, Deoliveira

has received diagnoses of bilateral knee pain, osteoarthritis in

both knees, fibromyalgia, inflammatory arthritis with a possible

autoimmune disorder, a muscle-tension headache, acute post-

traumatic headache, an acute cervical sprain, low-back pain,

left ear tinnitus,3 major depression, anxiety, and insomnia. For

her physical impairments, she has been treated with ice,

medication,4 and some physical therapy. On occasion, however,

she has declined to engage in physical therapy, and has declined

injections for the pain associated with her physical

impairments. For her mental impairments, she has been treated

primarily with medication,5 although therapy has also been

prescribed.

In September of 2015, Deoliveira applied for DIB and SSI,

claiming that she became disabled on April 4, 2014, as a result

of fibromyalgia, lower-back pain, pain in her upper neck and

head, a blood clot in her head resulting from a mild stroke,

3 Tinnitus is “[p]erception of a sound in the absence of an environmental acoustic stimulus.” Stedman’s, supra, at 1992.

4 She has been given prescriptions for Valium, ibuprofen, tramadol, Vicodin, Percocet, Voltaren gel, an unnamed anti- depressant, cyclobenzaprine, Soma, disease-modifying anti- rheumatic drugs, oxycodone, morphine, Zofran, and Toradol.

5 She has been given prescriptions for diazepam, Ambien, Cymbalta, Remeron, Brintellix, Viibryd, Effexor, and Klonopin.

5 continuous pain, headaches, stress and anxiety, depression, and

trouble walking. She later revised the alleged onset date of

her disability to July 18, 2015, which coincides with a visit to

urgent care for knee pain.

The record includes eight statements by medical or other

professionals that discuss Deoliveira’s physical or mental

impairments, each of which was evaluated by the ALJ, and each of

which is at issue in claimant’s appeal. To avoid unnecessary

redundancy, the court will defer its description of those

statements to the discussion section of this order.

After the SSA denied Deoliveira’s applications for DIB and

SSI, she received a hearing before an ALJ. At the hearing, the

ALJ heard testimony from a vocational expert (“VE”), to whom she

posed several hypothetical questions. First, the ALJ asked the

VE

to consider an individual of the claimant’s age, education, and work history [who] is limited to work at a light exertional level. No climbing of ladders, ropes, or scaffolds. No overhead lifting. The work should not include an assembly line belt pace; no concentrated exposure to potential hazards – moving machinery, unprotected heights, things like that.

Tr. 103. The VE testified that a person with those limitations

could not perform Deoliveira’s past work as a limousine/taxi

driver, but could perform her past work as a personal attendant.

He further testified that a person with those limitations could

6 perform the unskilled jobs of school-bus monitor, fruit

distributor, and counter clerk.

The ALJ asked a second hypothetical question that included

this additional limitation:

Standing and walking about half time, four hours of an eight-hour day, and the individual has the option or opportunity, because of the kind of job, to change positions, stretch, that sort of thing, two to three times an hour for a minute or 2.

Tr. 104-05. According to the VE, that additional limitation

would preclude a person from performing Deoliveira’s past work

as a personal attendant, but would allow her to perform the

unskilled jobs of information clerk, ticket taker, and parking-

lot cashier, “as long as the individual would be able to

maintain on-task behavior for 90 percent of the work day,” Tr.

106.

After Deoliveira’s hearing, the ALJ issued a decision in

which she found that claimant had these severe impairments:

degenerative joint disease of the cervical spine; residual effects of [a] remote mild cerebrovascular accident; fibromyalgia; depression; insomnia; and anxiety.

Tr. 21. Then, after finding that none of Deoliveira’s

impairments, either alone or in combination, met or medically

equaled the severity of any of the impairments on the SSA’s list

of impairments that are per se disabling, the ALJ provided this

assessment of Deoliveira’s RFC:

7 [T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she is limited to standing and walking four hours out of an eight-hour day; the work must be able to be performed seated or standing at the option of the employee; she cannot climb ladders, ropes, or scaffolds; and she cannot perform any overhead lifting. Work should be unskilled and not include an assembly line belt pace; and she should have no concentrated exposure to potential hazards (such as moving machinery, unprotected heights, etc.).

Tr. 25. In the end, the ALJ determined that Deoliveira was

unable to perform her past work, but could perform the jobs of

school-bus monitor, fruit distributor, information clerk, ticket

taker, and parking-lot cashier. Consequently, the ALJ found

that Deoliveira was not under a disability from July 18, 2015,

through the date of her decision, which was February 27, 2017.

III. Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

a disability. 42 U.S.C. § 423(a)(1)(A)-(D). To be eligible for

supplemental security income, a person must be aged, blind, or

disabled, and must meet certain requirements pertaining to

income and assets. 42 U.S.C. § 1382(a). The only question in

this case is whether the ALJ correctly determined that

8 Deoliveira was not under a disability from July 18, 2015,

through February 27, 2017.

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI, an ALJ is

required to employ a five-step sequential evaluation process.

See 20 C.F.R. §§ 404.1520 (DIB) & 416.920 (SSI).

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Purdy, 887 F.3d at 10 (quoting Seavey v. Barnhart, 276 F.3d 1, 5

(1st Cir. 2001); citing 20 C.F.R. § 416.920).

At the first four steps in the sequential evaluation

process, the claimant bears both the burden of production and

the burden of proof. See Purdy, 887 F.3d at 9 (citing Freeman

v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001)); see also Bowen

v. Yuckert, 482 U.S. 137, 146 (1987). She must prove she is

disabled by a preponderance of the evidence. See Mandziej v.

9 Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.

Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982)).6 Finally,

[i]n assessing a disability claim, the [Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the claimant or other witness; and (3) the [claimant]’s educational background, age, and work experience. Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797

F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690

F.2d 5, 6 (1st Cir. 1982)).

B. Deoliveira’s Claims

Deoliveira claims that the ALJ erroneously determined her

RFC by improperly: (1) evaluating her testimony about her

symptoms; and (2) weighing the medical-opinion evidence.

Neither claim has merit. The court considers each in turn.

1. Claimant’s Statements about her Symptoms

In her decision, the ALJ gave only partial weight to

Deoliveira’s statements about her symptoms, principally pain and

memory problems. She explained that “claimant’s statements

concerning the intensity, persistence and limiting effects of

[her] symptoms are not entirely consistent with the medical

6 At step five, the burden of proof shifts to the Acting Commissioner, see Seavey, 276 F.3d at 5 (citing Arocho v. Sec’y of HHS, 670 F.2d 374, 375 (1st Cir. 1982)), but the Acting Commissioner’s step-five determination is not at issue here, so there is no need to describe the mechanics of step five. 10 evidence and other evidence in the record.” Tr. 28. According

to claimant, the ALJ erred by: (1) assessing her credibility,

rather than evaluating her statements about her symptoms, in

violation of the guidance provided by Social Security Ruling

(“SSR”) 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016); and (2)

improperly relying upon her non-compliance with treatment and a

lack of substantiating objective medical evidence as reasons for

discounting her statements. The court begins by outlining the

applicable legal principles and then turns to Deoliveira’s two

claims of error.

Legal principles. In 2016, the SSA promulgated SSR 16-3p,

which is titled “Evaluation of Symptoms in Disability Claims,”

and which “provide[d] guidance about how [the SSA] evaluate[s]

statements regarding the intensity, persistence, and limiting

effects of symptoms in disability claims under Titles II and XVI

of the Social Security Act.” 2016 WL 1119029, at *1. Under the

heading “Purpose,” the SSA explained:

[W]e are eliminating the use of the term “credibility” from our sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evaluation is not an examination of an individual’s character.

Id. at *1.

SSR 16-3p also outlines a two-step evaluation process in

which a decisionmaker first determines whether a claimant has a

medically determinable impairment that could reasonably be

11 expected to produce her alleged symptoms. Then, if a claimant

has such an impairment, the decisionmaker must evaluate the

intensity and persistence of those symptoms, and determine the

extent to which they limit the claimant’s ability to perform

work-related activities. In making that evaluation, a

decisionmaker should

examine the entire case record, including the objective medical evidence; an individual’s statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual’s case record.

SSR 16-3p, 2016 WL 1119029, at *4. However, an “ALJ cannot

reject the veracity of the claimant’s own statements . . . based

solely on the conclusion that they are unsubstantiated by the

objective medical evidence.” Tellier v. US Soc. Sec. Admin.,

Acting Comm’r, No. 17-cv-184-PB, 2018 WL 3370630, at *6 (D.N.H.

July 10, 2018) (citing 20 C.F.R. § 404.1529(c)(2); Clavette v.

Astrue, No. 10-cv-580-JL, 2012 WL 472757, at *9 (D.N.H. Feb. 7,

2012); Valiquette v. Astrue, 498 F. Supp. 2d 424, 433 (D. Mass.

2007); see also SSR 16-3p, 2016 WL 1119029, at *4. Finally,

when evaluating the intensity and persistence of a claimant’s

symptoms, the ALJ should consider the so-called Avery factors:

(i) the claimant’s daily activities; (ii) the location, duration, frequency, and intensity of the pain or symptom; (iii) any precipitating and aggravating factors; (iv) the effectiveness of any medication currently or previously taken; (v) the effectiveness of non-medicinal treatment; (vi) any other self-directed measures used to relieve

12 pain; and (vii) any other factors concerning functional limitations or restrictions. 20 C.F.R. 404.1529(c)(3); Childers v. Colvin, [No. 14-cv-270-JL, 2015 WL 4415129], [at] *5 [(D.N.H. July 17, 2015)] (citing Avery v. Sec’y of Health & Human Servs., 797 F.2d 19, 29 (1st Cir. 1986)).

Tellier, 2018 WL 3370630, at *7. However, “‘an ALJ need not

address every Avery factor’ in [her] written decision for [her]

evaluation to be supported by substantial evidence.” Id.

(quoting Ault v. Astrue, No. 10-cv-553-JL, 2012 WL 72291, at *5

(D.N.H. Jan. 10, 2012)).

Credibility. Deoliveira first claims that the ALJ erred by

discounting her statements about her symptoms largely because

she had been convicted of welfare fraud. Assuming that such a

mistake by the ALJ would be a reversible error, a proposition

for which claimant cites no authority, the ALJ did not do what

Deoliveira claims she did. The ALJ mentioned Deoliveira’s

incarceration at several points in her decision, but she did not

do so as part of either an examination of claimant’s character

for truthfulness or an evaluation of the statements she made

about her symptoms. Rather, the ALJ mentioned claimant’s

incarceration in discussions of her employment record, see Tr.

25-26, and her medical history, see Tr. 27, 29-30. But that

does not run afoul of the principle, expressed in SSR 16-3p,

that SSA decisionmakers are not to assess a claimant’s

credibility or character. See Coskery v. Berryhill, 892 F.3d 1,

6 (1st Cir. 2018) (explaining, when rejecting claimant’s SSR 16-

13 3p argument, that “we read the ALJ to have referenced Coskery’s

marijuana use not for the purpose of making an assessment of

Coskery’s character or truthfulness, but in order to explain the

basis for its finding that Coskery ‘was noncompliant with

treatment’”). Thus, Deoliveira’s SSR 16-3p argument gives the

court no cause to reverse the ALJ’s decision.

Non-compliance with treatment. Deoliveira next claims that

the ALJ erred by discounting her statements about her symptoms

on grounds that she frequently stopped taking medications she

had been prescribed for her physical and mental impairments. On

this point, SSR 16-3p explains that “if [a claimant] fails to

follow prescribed treatment that might improve symptoms, [the

SSA] may find the alleged intensity and persistence of [her]

symptoms are inconsistent with the overall evidence of record,”

2016 WL 1119029, at *8. But, the SSA “will not find [a

claimant’s] symptoms inconsistent with the evidence in the

record on this basis without considering the possible reasons he

or she may not comply with treatment or seek treatment

consistent with the degree of his or her complaints.” Id.

Deoliveira argues that the ALJ failed to properly consider,

or credit, her reasons for discontinuing the medications she had

been prescribed. However, in the paragraph of her decision in

which she discounted Deoliveira’s statements about her symptoms,

the ALJ did mention claimant’s testimony that she had not gotten

14 much benefit from the medications she has been prescribed. And

then she continued:

She also declines to go to physical therapy stating that she tried it once and it actually made her pain worse; but this is directly refuted by the physical therapy records provided for review, which show that she reported improvement in her pain and functional abilities; and her physical therapist noted improved range of motion as well.

Tr. 35.7 So, even if the ALJ had erred in her consideration of

claimant’s reasons for not taking various prescription

medications, her reliance upon claimant’s failure to pursue

physical therapy, an explanation that claimant does not address

in her brief, is an acceptable reason for discounting her

statements about her symptoms. See SSR 16-3p, 2016 WL 1119029,

at *8. Thus, Deoliveira’s claim that the ALJ mishandled the

non-compliance issue provides no basis for reversing her

decision.

Lack of objective medical evidence. Finally, Deoliveira

argues that the ALJ’s decision should be reversed because, after

eliminating credibility and non-compliance, the sole basis for

the ALJ’s decision to discount her statements about her symptoms

7 Elsewhere in her decision, the ALJ also noted: (1) claimant’s testimony that she voluntarily missed about half of her medical appointments, see Tr. 26; (2) claimant’s refusal to have cortisone or other injections to treat her pain, see Tr. 27, 31, 32; (3) her failure to undergo a recommended sleep study, see Tr. 28; and (4) and an orthopedist’s refusal to see her because of multiple no-shows, see Tr. 30. 15 was the lack of objective medical evidence, which standing

alone, is an insufficient reason for discounting a claimant’s

statements. As for the legal principle on which she relies,

claimant is correct. See Tellier, 2018 WL 3370630, at *6. But

here, the ALJ did not rely solely upon the lack of objective

medical evidence; she also relied upon claimant’s failure to

take her medications and her failure to pursue physical therapy.

Thus, Deoliveira’s final claim against the ALJ’s decision not to

credit her statements also fails.

To sum up, Deoliveira has identified no reversable error in

the ALJ’s decision to discount her statements about her

symptoms.

2. Medical Opinions

When determining claimant’s physical RFC, the ALJ gave:

(1) great weight to the opinion of Dr. Ann Williams, a non-

examining state-agency consultant who reviewed Deoliveira’s

medical records in November of 2015 and then assessed her

physical residual functional capacity (“RFC”);8 (2) partial

weight to an opinion that Dr. Dave expressed in a Physical

8 “[R]residual functional capacity ‘is the most [a claimant] can still do despite [his or her] limitations.’” Purdy, 887 F.3d at 10 n.2 (quoting 20 C.F.R. § 416.945(a)(1), a regulation governing claims for supplemental security income that is worded identically to 20 C.F.R. § 404.1545(a), which governs claims for DIB) (brackets in the original).

16 Impairment Medical Source Statement he signed in December of

2016; and (3) little weight to an opinion from Dr. Michele

Urban, a treating physician who signed a Physical Impairment

Medical Source Statement in December of 2016. When determining

claimant’s mental RFC, the ALJ gave: (1) great weight to the

opinions expressed in a Mental Health Evaluation Report prepared

by Dr. Sherie Friedrich after she performed a consultative

psychological examination in November of 2015;9 (2) great weight

to the opinion of Dr. Laura Landerman, a non-examining state-

agency consultant who reviewed Deoliveira’s medical records,

including Dr. Friedrich’s report, in December of 2015 and

performed a psychiatric review technique (“PRT”) assessment;10

(3) little weight to an opinion from Dr. Michele Gunning, a

treating psychiatrist who completed a Mental Impairment

Questionnaire in December of 2016; (4) little weight to an

opinion from Mr. Samuel Rosario, a licensed social worker who

completed a Mental Impairment Questionnaire in December of 2016;

and (5) little weight to a Psychological Evaluation authored by

Dr. Richard Shulik after he conducted a memory evaluation in

9 “A consultative examination is a physical or mental examination or test purchased for [a claimant] at [the SSA’s] request.” 20 C.F.R. §§ 404.1519 & 416.919. 10The SSA uses the PRT to evaluate the severity of mental impairments. See 20 C.F.R. §§ 404.1520a & 416.920a.

17 February of 2017. Claimant challenges all eight of the ALJ’s

evaluations. The court begins with the relevant law and then

turns to the evaluations at issue.

a. The Relevant Law

The regulations that govern the evaluation of medical

opinions that apply to disability claims filed before March 27,

2017, outline a hierarchy which, as a general matter, gives the

greatest weight to the opinions of treating sources, less weight

to the opinions of sources who have examined but not treated a

claimant, and the least weight of all to the opinions of sources

who have neither treated nor examined a claimant. See 20 C.F.R.

§§ 404.1527(c)(1)-(2) & 416.927(c)(1)-(2).11 Moreover, under

those regulations, if an SSA decisionmaker

find[s] that a treating source’s medical opinion on the issue(s) of the nature and severity of [a claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with the other substantial evidence in [the claimant’s] case record, [the decisionmaker] will give it controlling weight.

20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2). On the other hand,

however, “nothing precludes an ALJ from giving greater weight to

the opinion of a non-treating physician than that of a treating

source where the former is supported by substantial evidence.”

11For claims filed on or after March 27, 2017, different regulations apply. See 20 C.F.R. §§ 404.1520c & 416.920c. 18 Nichols v. US Soc. Sec. Admin., Acting Comm’r, No. 16-cv-443-PB,

2018 WL 1307645, at *12 (D.N.H. Mar. 13, 2018) (citing Tetreault

v. Astrue, 865 F. Supp. 2d 116, 124 (D. Mass. 2012); Diaz v.

Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995)).

When a decisionmaker does not give controlling weight to

the opinion of a treating source, she must evaluate it, and all

the other medical opinions in the record, by considering the

following factors: (1) the length of the treatment relationship

and the frequency of examination; (2) the nature and extent of

the treatment relationship; (3) the degree to which the source

provides support for his or her opinion in the form of medical

signs and laboratory findings; (4) the consistency of the

opinion with the record as a whole; (5) the specialization of

the source; and (6) other factors, including the source’s

familiarity with the SSA’s disability programs. See 20 C.F.R.

§§ 404.1527(c)(2)-(6) & 416.927(c)(2)-(6). Finally, “when an

ALJ does not give controlling weight to the opinion of a

treating source, [she] must give good reasons for the amount of

weight [she] does give it.” Swain v. Berryhill, No. 18-cv-145-

PB, 2018 WL 5342714, at *5 (D.N.H. Oct. 29, 2018) (citing 20

C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2)). To satisfy that

requirement,

the ALJ’s reasons must be both specific, see Kenerson v. Astrue, No. 10–cv–161–SM, 2011 WL 1981609, at *4 (D.N.H. May 20, 2011) (citation omitted), and

19 supportable, see Soto–Cedeño v. Astrue, 380 Fed. Appx. 1, 4 (1st Cir. 2010). In sum, the ALJ’s reasons must “offer a rationale that could be accepted by a reasonable mind.” Widlund v. Astrue, No. 11–cv–371– JL, 2012 WL 1676990, at *9 (D.N.H. Apr. 16, 2012) (citing Lema v. Astrue, C.A. No. 09–11858, 2011 WL 1155195, at *4 (D. Mass. Mar. 21, 2011)), report and recommendation adopted by 2012 WL 1676984 (D.N.H. May 14, 2012).

Jenness v. Colvin, No. 15–cv–005–LM, 2015 WL 9688392, at *6

(D.N.H. Aug. 27, 2015).

b. Opinions on Claimant’s Physical RFC

Dr. Williams. In her RFC assessment, Dr. Williams

determined that Deoliveira could lift and/or carry 10 pounds

frequently and 20 pounds occasionally, stand and/or walk (with

normal breaks) for about six hours in an eight-hour workday, sit

(with normal breaks) for about six hours in an eight-hour

workday, and push and/or pull same amount she could lift and/or

carry. Dr. Williams did not identify any postural,

manipulative, visual, communicative, or environmental

limitations.

The ALJ gave Dr. Williams’s opinion great weight because of

her familiarity with the SSA’s disability programs and because

her opinion was “not inconsistent with the medical evidence as a

whole,” Tr. 41. She then continued:

Although the undersigned has determined that the claimant has some residual functional deficits associated with her mild stroke and has therefore included this as a severe impairment with associated limitations in her ability to perform skilled or paced

20 work, there has been no convincing evidence submitted since the medical assessments were completed that now warrants finding greater physical limitations.

Id.

Claimant challenges the AJL’s evaluation of Dr. Williams’s

opinion, arguing that: (1) the ALJ produced no evidence of Dr.

Williams’s knowledge of the SSA’s disability programs; and (2)

the ALJ’s determination that there was no evidence post-dating

Dr. Williams’s opinion that supported greater limitations is

based upon an erroneous evaluation of the opinions of Dr. Dave

and Dr. Urban. However, claimant does not identify any

particular aspect of Dr. Williams’s RFC assessment with which

she takes issue.

Deoliveira’s claims are unavailing. First, Dr. Williams’s

undisputed status as a state-agency consultant, and the content

of her RFC assessment, satisfy the court that she is familiar

with the SSA’s disability programs which, in turn, is a factor

that the regulations specifically direct SSA decisionmakers to

consider when evaluating medical opinions, see 20 C.F.R. §§

404.1527(c)(6) & 416.927(c)(6). And, for reasons discussed

below, the court cannot agree that the ALJ erred in her

evaluation of the other two medical opinions on claimant’s

physical RFC. Accordingly, the court finds no fault with the

ALJ’s evaluation of Dr. Williams’s opinion.

21 Dr. Dave. In his Medical Source Statement, Dr. Dave noted

that he had seen Deoliveira once, on November 9, 2016,12 and he

listed a single diagnosis: concussion. When asked to

“[i]dentify the clinical findings and objective signs,” Tr. 740,

of claimant’s impairment, he wrote: “no focal weakness,” id.

While he made some marginal notes on the form he filled out, he

did not answer many of the questions on it, and he only

identified two actual limitations, opining that: (1)

Deoliveira’s experience of pain or other symptoms would

frequently interfere with the attention and concentration needed

to perform even simple work tasks; and (2) it was very likely

that Deoliveira would sometimes need to take unscheduled breaks

during an eight-hour workday. He did not, however, respond to

the questions about the frequency of Deoliveira’s need for

breaks or the duration of the breaks she needed. Claimant

relies upon Dr. Dave’s opinion that during a typical workday,

her experience of pain or other symptoms would frequently be

“severe enough to interfere with attention and concentration

needed to perform even simple work tasks.” Tr. 741.13

12The record, however, also includes an October 31, 2013, consultation note, which indicates that Dr. Dave saw claimant on that date, and had previously seen her, for an initial visit, in February of 2012. See Tr. 669-70.

13The court assumes that such a limitation would preclude all work, even though claimant’s counsel did not elicit any VE testimony to that effect at her hearing. See Bolobanic v. 22 The ALJ gave that opinion only partial weight because it

was not well supported and because it was only partially

consistent with the record as a whole. The ALJ’s consistency

rationale, in turn, starts with Dr. Dave’s reliance upon

claimant’s subjective complaints, and then turns to the lack of

support for those complaints in the objective medical record.

Claimant disagrees with the ALJ’s evaluation of Dr. Dave’s

opinion, but rather than addressing the ALJ’s supportability

rationale, she merely points to the ALJ’s purportedly erroneous

assessment of her statements about her symptoms. Because the

ALJ did not err in his evaluation of claimant’s statements about

her symptoms, however, for the reasons explained above,

claimant’s challenge to the ALJ’s evaluation of Dr. Dave’s

opinion fails to persuade.

Moreover, the ALJ’s supportability rationale is a good

reason for discounting Dr. Dave’s opinion. Supportability by

medical signs is one of the factors that SSA decisionmakers are

directed to consider when weighing medical opinions. See 20

C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3). The only medical sign

that Dr. Dave presented to support his opinion is “no focal

Astrue, No. 11-cv-441-PB, 2012 WL 2049382, at *4 (D.N.H. May 21, 2012) (noting VE testimony that there would be no jobs available for a person who had pain or other symptoms that frequently or constantly interfered with the attention and concentration needed to perform even simple work tasks), R. & R. adopted by 2012 WL 2046326 (June 5, 2012). 23 weakness,” Tr. 740, but there is nothing in Dr. Dave’s opinion

that explains how “no focal weakness” is a medical sign that

would support a finding that a person who exhibits that sign

would frequently be distracted by pain or other symptoms.

Accordingly, the ALJ did not err in her decision to discount Dr.

Dave’s opinion as inadequately supported.

Dr. Urban. In her Medical Source Statement, Dr. Urban

indicated that she had seen Deoliveira four times over the

previous year. She listed the following diagnoses: concussion

syndrome, severe anxiety/depression, attention deficit

hyperactivity disorder, inflammatory arthritis, fibromyalgia,

mild degenerative arthritis in knees, left ICA dissection,14 and

spondylosis of the cervical spine.15 When asked to “[i]dentify

the clinical findings and objective signs,” Tr. 1012, of

claimant’s impairments, she wrote: “see attached office note,”

id. However, there is no office note attached to the copy of

Dr. Urban’s Medical Source Statement that appears in the record.

Moreover, Dr. Urban did not answer any of the questions on the

ICA is an “[a]bbreviation for internal carotid artery.” 14

Stedman’s, supra, at 942 (emphasis omitted).

Spondylosis is “[a]nkylosis of the vertebra; often 15

applied nonspecifically to any lesion of the spine of a degenerative nature.” Stedman’s, supra, at 1813. Ankylosis is “[s]tiffening or fixation of a joint as a result of a disease process, with fibrous or bony union across the joint; fusion.” Id. at 95.

24 form regarding Deoliveira’s physical RFC, stating that

Deoliveira needed a functional capacity evaluation.16 Like Dr.

Dave, however, Dr. Urban opined that Deoliveira’s experience of

pain or other symptoms would frequently interfere with the

attention and concentration needed to perform even simple work

tasks. That is the opinion on which claimant relies.

The ALJ gave that opinion little weight because Dr. Urban:

(1) did “not set forth any narrative explanation for [that]

conclusion,” Tr. 38; (2) stated that claimant was taking

multiple pain medications and muscle relaxants when, in fact,

she was not; and (3) “acknowledge[d] that she [was] not

qualified to comment on either the claimant’s mental

functioning, or her physical capabilities,” Tr. 38.

Claimant disagrees with the ALJ’s evaluation of Dr. Urban’s

opinion. She challenges the ALJ’s supportability findings by

arguing that those

findings disregard the specific descriptions of Ms. Deoliveira’s symptoms and pain provided by Dr. Urban, which are adequately extensive to support her opinion that Ms. Deoliveira’s pain symptoms would frequently

16Dr. Urban referred claimant to an occupational therapist, Joan Van Saun, for a functional capacity evaluation. After noting that “there were significant discrepancies between [claimant’s] reported and her demonstrated functional abilities,” Tr. 1020, Van Saun determined that “it [was] not possible to predict with accuracy the work capacity of a patient with this profile, i.e., significant pain behaviors, inconsistency of effort [and] inconsistency between reported and demonstrated functional abilities,” Tr. 1021. 25 interfere with her ability to perform even simple work. (Tr. 1012-12).

Cl.’s Mem. of Law (doc. no. 8-1) 9. With respect to the ALJ’s

second reason for discounting Dr. Urban’s opinion, claimant

argues that the ALJ erred because “the record is replete with

medical records and testimony that [she] attempted treatment of

her chronic pain with numerous pain medications and muscle

relaxants that were discontinued due to the side effects that

they caused.” Id. at 8. Claimant does not appear to challenge

the ALJ’s third reason for discounting Dr. Urban’s opinion. In

any event, the ALJ’s first two rationales are both good reasons

for discounting Dr. Urban’s opinion.

Turning to the ALJ’s supportability rationale, Dr. Urban’s

Medical Source Statement does document some descriptions of

Deoliveira’s symptoms, as claimant suggests, but the

supportability inquiry focusses on “medical signs and laboratory

findings,” 20 C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3), not a

claimant’s subjective complaints. In the portion of the form

that asked her to “[i]dentify . . . clinical findings and

objective signs,” Tr. 1012, Dr. Urban referred to an “attached”

but otherwise unidentified office note that was not attached to

her Medical Source Statement. Beyond that, as best the court

can tell from the record, when Dr. Urban completed her Medical

Source Statement, she had last seen Deoliveira in October of

26 2016. See Tr. 813-14. If Dr. Urban’s October 24, 2016,

progress note is the office note to which she referred in her

Medical Source Statement, it is not at all clear how that note

provides support for a finding that Deoliveira suffered from

pain that affected her attention and concentration to the point

where she was unable to work. While Dr. Urban’s examination

revealed some pain on palpation, she also reported that

Deoliveira was “in no acute distress,” Tr. 813. Neither the

clinical findings noted above nor anything else in the October

2016 progress note appears to support the limitation in Dr.

Urban’s Medical Source Statement on which claimant relies, i.e.,

that she would be frequently distracted by pain or other

The ALJ’s second rationale, Dr. Urban’s apparent

misunderstanding of the medical record, is also a good reason

for discounting her opinion. When asked to describe claimant’s

“treatment and response including any side effects of

medication,” Tr. 1012, Dr. Urban said that claimant was then “on

multiple medications,” id. (emphasis added), and, necessarily,

her opinion rested upon that understanding of the record. When

the ALJ challenged Dr. Urban’s understanding of the record by

pointing out that claimant was not actually taking all that many

medications (because she had stopped taking several of the

medications she had been prescribed) claimant’s response was not

27 to say that she was actually taking multiple medications, as Dr.

Urban had said. Rather, she faulted the ALJ for failing to

acknowledge the reasons why she had stopped taking her

prescribed medications. The record may well include medical

records that document claimant’s explanations for why she

stopped taking various medications, but the fact remains that

Dr. Urban appears not to have taken any such records into

account when forming her opinion, given her statement that

claimant was taking many medications. The inconsistency between

Dr. Urban’s understanding of the medical record and the actual

state of that record, as characterized by claimant herself, is

another good reason for discounting Dr. Urban’s opinion.

In sum, the ALJ did not err by giving Dr. Urban’s opinion

little weight.

c. Fibromyalgia

At the end of her discussion of the ALJ’s evaluation of the

opinions provided by Dr. Dave and Dr. Urban, Deoliveira claims

that because the ALJ found that her fibromyalgia was a severe

impairment, she “erroneously evaluated the opinion evidence of

record based upon a lack of objective medical evidence to

substantiate her claimed chronic pain symptoms and limitations.”

Cl.’ Mem. of Law (doc. no. 8-1). But in the discussion that

follows the foregoing claim, Deoliveira quotes from, and takes

issue with, two statements that appear in the portion of the

28 ALJ’s decision that is devoted not to her evaluation of the

medical-opinion evidence but to her assessment of claimant’s

statements about her symptoms. Thus, the actual gravamen of

claimant’s fibromyalgia argument is somewhat murky.

If Deoliveira is claiming that her fibromyalgia diagnosis

and/or the ALJ’s determination that her fibromyalgia was a

severe impairment compelled the ALJ to credit Dr. Urban’s

opinion that her pain would frequently interfere with the

concentration and attention needed to perform simple work tasks,

she is mistaken.17 As the court has noted, the ALJ discounted

Dr. Urban’s opinion in part because she did not “present[]

relevant evidence to support [it], particularly medical signs

and laboratory findings,” 20 C.F.R. §§ 404.1527(c)(3) &

416.927(c)(3). It is true that Dr. Urban did list a diagnosis

of fibromyalgia on her Medical Source Statement. But, a review

of Dr. Urban’s progress notes reveals that while she

acknowledged a previous diagnosis of fibromyalgia by Dr. John

Haley,18 she never made such a diagnosis on her own, and her

notes do not show findings that would satisfy the diagnostic

17Given that Dr. Dave did not even identify fibromyalgia as a diagnosis on his Medical Source Statement, nothing the ALJ did or did not do with respect to fibromyalgia could have led to any error in evaluating Dr. Dave’s opinion.

18Dr. Haley diagnosed Deoliveira with fibromyalgia and treated her for it, but also noted that his “[d]iagnosis [was] by no means certain,” Tr. 630. 29 criteria for fibromyalgia adopted by the SSA, see Maynard v.

Berryhill, No. 17-cv-087-PB, 2018 WL 839994, at *5 (D.N.H. Feb.

13, 2018) (quoting SSR 12-2p, 2012 WL 3104869, at *3-4 (S.S.A.

July 25, 2012)). Thus, claimant’s invocation of fibromyalgia

adds nothing to the analysis that would undermine the ALJ’s

decision to discount Dr. Urban’s opinion as inadequately

supported.

If, on the other hand, Deoliveira is claiming that her

fibromyalgia diagnosis and/or the ALJ’s determination that her

fibromyalgia was a severe impairment compelled the ALJ to credit

her statements about disabling pain, she is also mistaken. In

Johnson v. Astrue, on which claimant bases her fibromyalgia

argument, the court of appeals pointed out that “[t]he primary

symptom of fibromyalgia . . . is chronic widespread pain,” 597

F.3d 409, 414 (1st Cir. 2009), and explained that

once the ALJ accepted the diagnosis of fibromyalgia, she also “had no choice but to conclude that the claimant suffer[ed] from the symptoms usually associated with [such condition], unless there was substantial evidence in the record to support a finding that claimant did not endure a particular symptom or symptoms,”

id. (quoting Rose v. Shalala, 34 F.3d 13, 19 (1st Cir. 1994))

(emphasis and brackets added by Johnson). Here, when

discounting claimant’s statements about her symptoms, the ALJ

identified substantial evidence in the record to support a

finding that her pain was not as great as she claimed it was,

30 that evidence being claimant’s refusal to engage in physical

therapy on grounds that it made her symptoms worse,

notwithstanding physical therapy records demonstrating the

opposite. Thus, Johnson did not compel the ALJ to credit

claimant’s statements about the limiting effects of her

fibromyalgia pain.

In sum, there is nothing about claimant’s diagnosis of

fibromyalgia, or the First Circuit’s decision in Johnson, that

moves this court to find that the ALJ erred in her evaluation of

Dr. Urban’s opinion or her assessment of claimant’s statements

about her symptoms.

d. Opinions on Claimant’s Mental RFC

Dr. Friedrich. After performing her consultative

examination, which she characterized as a comprehensive

psychological profile, Dr. Friedrich produced a Mental Health

Evaluation Report. In it, she described the results of a six-

part mental status examination that included a section titled

“Sensorium of Functions,” Tr. 712. Under that heading, Dr.

Friedrich reported:

Alert and oriented to season, month, day of week, date, and year. Oriented to city, state, county, and setting. Able to read, write, and repeat a simple sentence. Able to copy a simple geometric design. Able to perform 5 of 5 serial sevens. Able to recall 1 of 3 words after a five minute delay. Able to spell the word “world” backward.

31 Tr. 713. With respect to Deoliveira’s then-current level of

functioning, Dr. Friedrich provided the following findings:

a. Activities of Daily Living: . . . [T]he claimant is able to complete most activities of daily living. She tends to her grooming and hygiene, showering every other day and dressing into clean clothing daily. She is able to prepare meals. The claimant drives herself where she needs to go and runs errands and grocery shops as needed. She performs basic household tasks. The claimant manages her own finances and personal affairs.

b. Social Functioning: . . . [T]he claimant is able to interact appropriately with others. She was cooperative during the evaluation and behaved appropriately. She denies ongoing conflicts with others. Her communications skills were fair. There is no evidence of impairment in this domain.

c. Understanding and Remembering Instructions: . . . [T]he claimant is able to understand locations and work-like procedures and follow through with simple instructions. She was able to follow simple instructions during the evaluation. There is no evidence to suggest that the claimant is unable to follow work-like procedures.

d. Concentration and Task Completion: . . . [T]he claimant is able to maintain attention and concentration and complete tasks. She worked at a reasonable pace during the evaluation. She is able to complete tasks at home. She was able to concentrate to spell the word “world” backwards and to complete five of five serial sevens. There is no psychological evidence of impairment in this domain.

e. Reaction to Stress, Adaptation to Work or Work-like Situations: . . . [T]he claimant is able to tolerate most stressors common to a work setting. She is able to maintain a daily schedule and routine. The claimant can make simple decisions for herself and has fair judgment. Based on her presentation today, I believe she could interact appropriately with supervisors.

32 Tr. 714-15 (emphasis added).

The ALJ gave Dr. Friedrich’s opinion great weight because

it was “consistent with the neurology records provided for

review, which demonstrate[d] no cognitive deficits whatsoever,”

Tr. 41, and further explained that the treatment records post-

dating Dr. Friedrich’s examination, by Dr. Gunning and Mr.

Rosario, “contain no objective evidence of greater mental

limitations than those described by Dr. Friedrich in her

November 2015 report,” id. In addition, because of claimant’s

“mild difficulty with delayed recall,” Tr. 41, as demonstrated

by her performance on Dr. Friedrich’s mental status examination,

the ALJ included a limitation to unskilled work in claimant’s

RFC.

Claimant disagrees with the ALJ’s evaluation of Dr.

Friedrich’s opinion, which she characterizes as a determination

that she “had essentially no limitations in her ability to

perform simple work,” Cl.’s Mem. of Law (doc. no. 8-1) 13.

Rather than challenging the ALJ’s determination that Dr.

Friedrich’s opinion was consistent with the neurology records,

claimant argues that the ALJ erred in giving great weight to

that opinion because

Dr. Friedrich performed no extensive psychological testing during her exam and noted that [she] was able to recall only one of three words after a five-minute delay, consistent with the objective memory testing later performed by Dr. Shulik and inconsistent with

33 the ALJ’s finding of only “mild difficulty with delayed recall.” (Tr. 41, 713).

Id. Claimant has given the court no reason to reverse the ALJ’s

decision based upon her determination that Dr. Friedrich’s

opinion was entitled to great weight.

To cast Deoliveira’s claim in terms of the regulations that

govern the evaluation of medical-opinion evidence, she appears

to claim that the ALJ erroneously credited Dr. Friedrich’s

opinion that she was capable of following simple instructions

because Dr. Friedrich did not adequately support that opinion,

see 20 C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3) or because it

was inconsistent with the record as a whole, see 20 C.F.R. §§

404.1527(c)(4) & 416.927(c)(4). Neither part of that claim is

persuasive.

First, Dr. Friedrich did provide support for her opinion.19

Specifically, she reported the results of her mental status

examination, which included seven items related to memory, six

of which Deoliveira handled with no problem. See Tr. 713. And,

Dr. Friedrich further supported her opinion that Deoliveira

could follow simple instructions with her own observation that

Deoliveira “was able to follow simple instructions during the

In the same sentence in which she says that Dr. Friedrich 19

failed to conduct extensive psychological testing, claimant reports one of seven results from one part of Dr. Friedrich’s six-part mental status examination. 34 evaluation,” Tr. 713. Thus, the ALJ did not err by failing to

discount Dr. Friedrich’s opinion due to a lack of support.

As for consistency with the record as a whole, Deoliveira

claims that the ALJ’s finding that she “demonstrated [only] mild

difficulty with delayed recall,” Tr. 41, is inconsistent with

both the results of Dr. Friedrich’s mental status examination

and Dr. Shulik’s more extensive memory testing. However, she

does not seem to argue that Dr. Friedrich’s opinion that she

could follow simple instructions was inconsistent with anything

in the record as a whole. Moreover, there appears to be no

evidence in the record to support a finding that claimant was

not capable of following simple instructions. Dr. Shulik’s

psychological evaluation documents severe memory problems, but

does not express Dr. Shulik’s clinical findings in functional

terms, so there is no basis for finding that Dr. Friedrich’s

opinion is inconsistent with Dr. Shulik’s findings. In short,

like her supportability claim, Deoliveira’s consistency claim

gives the court no reason to reverse the ALJ’s decision based

upon her determination that Dr. Friedrich’s opinion was entitled

to great weight.

Dr. Landerman. Based upon her review of Deoliveira’s

medical records, Dr. Landerman found that Deoliveira had: mild

restrictions on her activities of daily living, mild

difficulties in maintaining social functioning, mild

35 difficulties in maintaining concentration, persistence or pace,

and no repeated episodes of decompensation, each of extended

duration. Based upon those findings, Dr. Landerman determined

that Deoliveira had no severe mental impairments.

The ALJ gave Dr. Landerman’s opinion great weight

because of her familiarity with the SSA’s disability programs

and because her opinion was “not inconsistent with the medical

evidence as a whole,” Tr. 41. Deoliveira’s only real claim is

that the ALJ produced no evidence of Dr. Landerman’s knowledge

of the SSA’s disability programs, but for the same reasons that

apply to Dr. Williams’s opinion, stated above, that claim is

also unavailing as to Dr. Landerman’s opinion. Beyond that,

claimant does not identify any particular aspect of Dr.

Landerman’s opinion with which she takes issue. And, indeed,

Dr. Landerman merely opined that Deoliveira did not have a

listing-level mental impairment, and Deoliveira does not claim

that she did.

In sum, the ALJ’s evaluation of Dr. Landerman’s opinion

provides no basis for reversing her decision.

Dr. Gunning. In her Mental Impairment Questionnaire, Dr.

Gunning: (1) stated that she had seen Deoliveira six times

during the course of the year; (2) listed diagnoses that include

anxiety, major depression, and insomnia; (3) identified

“anxiety, depressive symptoms, and insomnia,” Tr. 745, as

36 “clinical findings including results of mental status

examination that demonstrate[d] the severity of [claimant’s]

mental impairment and symptoms,” id. (emphasis added); and (4)

described Deoliveira’s prognosis as “guarded due to her physical

issues & poorly controlled pain,” id. The form that Dr. Gunning

completed also asked her to indicate the symptoms of

Deoliveira’s mental impairments. She checked the boxes for

anhedonia or pervasive loss of interest in almost all

activities, decreased energy, generalized persistent anxiety,

mood disturbances, difficulty thinking or concentrating, and

sleep disturbance, but she did not check the box for “[m]emory

impairment – short, intermediate, or long term,” Tr. 746.

Like Dr. Landerman, Dr. Gunning found that Deoliveira had:

mild restrictions, or none at all, on her activities of daily

living; mild difficulties, or none at all, in maintaining social

functioning; mild difficulties, or none at all, in maintaining

concentration, persistence or pace; and no repeated episodes of

decompensation, each of extended duration.

With respect to the 16 mental abilities and aptitudes

needed to do unskilled work, Dr. Gunning rated Deoliveira as

unlimited or very good in two of them, including the ability to

maintain regular attendance and be punctual within customary,

usually strict tolerances. She rated Deoliveira as limited but

satisfactory in ten abilities, including the abilities to: (1)

37 remember work-like procedures; (2) understand and remember very

short and simple instructions; and (3) carry out very short and

simple instructions. Finally, Dr. Gunning rated Deoliveira as

seriously limited but not precluded in the remaining four

abilities: (1) completing a normal workday and workweek without

interruptions from psychologically based symptoms; (2)

performing at a consistent pace without an unreasonable number

and length of rest periods; (3) responding appropriately to

changes in a routine work setting; and (4) dealing with normal

work stress. Finally, there were no abilities for which Dr.

Gunning gave Deoliveira either of the two lowest ratings

available, i.e., “unable to meet competitive standards,” and “no

useful ability to function.” When asked to explain her

determination that claimant had serious limitations on four

abilities and to “include the medical/clinical findings that

support this assessment,” Tr. 748, Dr. Gunning wrote: “prone to

high anxiety which can affect function when under stress,” id.

With respect to the four mental abilities and aptitudes

needed to do semiskilled and skilled work, Dr. Gunning rated

Deoliveira as unlimited or very good in one of them and as

38 limited but satisfactory in the other three, including the

ability to understand and remember detailed instructions.20

Finally, Dr. Gunning found that Deoliveira would be absent

from work about two days a month due to her impairments or

treatment for them. At claimant’s hearing, the VE testified

that “[t]ypically one unexcused absence per month is tolerated,”

Tr. 106, but did not offer any testimony on the number of

absences per month that are typically excused, through the use

of leave time, so it is not entirely clear that a need for two

absences per month would result in more than one unexcused

absence per month. However, the court will presume that the

limitation at issue would preclude employment.

The ALJ gave Dr. Gunning’s opinions little weight because:

(1) she did not provide clinical findings to support them, but,

instead, answered a question about clinical findings by listing

mere diagnoses; (2) she ventured outside her practice area by

offering an opinion on the effect of pain on claimant’s mental

RFC; (3) her opinions were internally inconsistent;21 and (4) she

20In addition, with respect to the mental abilities and aptitude needed to do particular types of jobs, Dr. Gunning rated Deoliveira as unlimited or very good in all five.

21The purported inconsistency stems from the fact that Dr. Gunning found that claimant had only mild “limitations in the [broad] areas of performing activities of daily living, maintaining social functioning, and maintaining concentration, persistence and pace,” Tr. 37, but also found that she had serious limitations the specific abilities to: (1) complete a 39 offered no explanation for her opinion that claimant would be

absent from work about two days per month. Deoliveira takes

issue with each of the reasons the ALJ gave for discounting Dr.

Gunning’s opinions.

For the sake of argument, the court will presume that the

ALJ’s second and third reasons for discounting Dr. Gunning’s

opinions are not good reasons.22 However, her first and fourth

reasons, taken together, present a supportability rationale that

could be accepted by a reasonable mind as sufficient to support

her determination that Dr. Gunning’s opinions were entitled to

As the court has noted, Dr. Gunning identified: (1)

“anxiety, depressive symptoms, and insomnia” as “clinical

findings . . . demonstrate[ing] the severity of [claimant’s]

mental impairment and symptoms,” Tr. 745; and (2) “high anxiety

. . . when under stress” as “medical/clinical findings” that

normal workday and workweek; (2) perform at a consistent pace; (3) respond appropriately to changes in a routine work setting; and (4) deal with normal work stress.

22With regard to the third reason, a purported internal inconsistency in Dr. Gunning’s opinion, given that Dr. Gunning found at least satisfactory functioning in 21 of 25 specific mental abilities and aptitudes listed on her questionnaire, see Tr. 747-48, it is hardly clear that she created an inconsistency by finding mild or no limitations in the three broad categories of activities of daily living, social functioning, and maintaining concentration, persistence, or pace, see Tr. 749.

40 supported her determination that claimant had serious

limitations in four of the sixteen mental abilities and

aptitudes necessary to do unskilled work. In response to the

ALJ’s supportability rationale for discounting Dr. Gunning’s

opinion, claimant argues:

[R]egarding the ALJ’s finding that Dr. Gunning did not offer sufficient explanation to support her opinion of specific serious limitations, Dr. Gunning also wrote that Ms. Deoliveira was “prone to high anxiety which can affect function when under stress” to explain her opinion of serious limitations in the four identified areas. . . . The ALJ also erroneously found that Dr. Gunning did not offer any explanation for her opinion that Ms. Deoliveira would be absent from work about two days per month due to her impairments or treatment, because as noted previously Dr. Gunning explained that periods of high anxiety would affect her functioning to a greater extent when present – Dr. Gunning’s opinion regarding the number of absences that Ms. Deoliveira was likely to have in a month due to her impairments is consistent with her opinion of serious limitations in her ability to complete a normal workday or workweek without interruptions and to perform at a consistent pace without an unreasonable number and length of rest periods. Dr. Gunning’s opinion is also consistent with her treatment notes . . .

Cl.’s Mem. of Law (doc. no. 8-1) 5-7.23

While claimant restates what Dr. Gunning wrote on her

Mental Impairment Questionnaire, she does not really explain how

those responses count as “medical signs [or] laboratory

findings,” 20 C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3), that

23Claimant does not mention Dr. Gunning’s opinion that she had an unlimited or very good ability to maintain regular attendance and be punctual within strict tolerances. 41 support the functional limitations she identified in her

opinion. For her part, the Acting Commissioner says that the

notations on which claimant relies do little more than name

diagnoses, and argues that a diagnosis alone is insufficient to

qualify as support for a medical opinion for the purposes of 20

C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3). The court agrees.

In Whitney v. Berryhill, a treating source found various

limitations on a claimant’s exertional capacity. Then he

attributed the exertional limitations that he assessed to the plaintiff’s morbid obesity, “severe osteoarthritis knees, shoulder and probably hip— limited exertional capacity and poorly controlled diabetes with neuropathy” [and] elaborated with respect to her knee impairments: “Her knees are basically shot and would benefit from total knee replacements.”

No. 1:16-cv-00354-JAW, 2017 WL 2839632, at *8 (D. Me. July 2,

2017) (citation to the record omitted). The ALJ in Whitney gave

the treating source’s opinion only partial weight, because the

extent of the limitations he found was not explained in his

opinion or supported by his treatment records. See id. The

court affirmed, and explained:

Dr. Shannon primarily identified diagnoses in support of his findings; however, as the commissioner points out, the diagnosis of a condition, without more, fails to inform a fact-finder about a condition’s severity, see, e.g., Brown v. Colvin, No. 2:13-cv-473-JHR, 2015 WL 58396, at *2 (D. Me. Jan. 5, 2015) (a diagnosis, alone, does not establish a condition’s severity).

42 Id. at *9 (citation to the record omitted). Just as Dr.

Shannon’s identification of diagnoses was insufficient to

support his opinions in Whitney, Dr. Gunning’s failure to do

anything more than list diagnoses as explanations for the

limitations she identified gave the ALJ a good reason to

discount her opinion.

Because the ALJ did not err in her evaluation of Dr.

Gunning’s opinion, that aspect of her decision gives the court

no basis for reversing it.

Mr. Rosario. In his Mental Impairment Questionnaire, Mr.

Rosario: (1) stated that he had been seeing Deoliveira for

about seven months; (2) listed diagnoses that include anxiety

and major depression; (3) identified “Anxiety, Depression, ↑

pain,” Tr. 752, as “clinical findings . . . that demonstrate[d]

the severity of [claimant’s] mental impairment and symptoms,”

id. (emphasis added); and (4) described Deoliveira’s prognosis

as “guarded due to physical problems struggles with controlling

pain – multiple medical issues,” id.

Mr. Rosario found that Deoliveira had: mild restrictions,

or none at all, on her activities of daily living; mild

difficulties, or none at all, in maintaining social functioning;

moderate difficulties in maintaining concentration, persistence

or pace; and no repeated episodes of decompensation, each of

extended duration.

43 With respect to the mental abilities and aptitudes needed

to do unskilled work, semiskilled work, and particular types of

jobs, Mr. Rosario’s responses mirrored those of Dr. Gunning.

When asked to explain his determination that claimant had

serious limitations on four abilities and to “include the

medical/clinical findings that support this assessment,” Tr.

755, Mr. Rosario wrote: “Struggles with anxiety, agitation +

frustration due to stress + chronic pain,” id. Finally, like

Dr. Gunning, Mr. Rosario found that Deoliveira would be absent

treatment for them.

The ALJ gave Mr. Rosario’s opinions little weight because

he: (1) did not provide clinical findings to support them, but

merely stated various diagnoses; (2) offered no explanation for

his opinion that claimant would be absent from work about two

days per month; and (3) is not an acceptable medical source.

Mr. Rosario provided no better support for his opinions than Dr.

Gunning provided for hers. For that reason, and because Mr.

Rosario is not an acceptable medical source, see 20 C.F.R. §§

404.1513 (2016) & 416.913 (2016) defining the term “acceptable

medical sources” in a way that excludes social workers); SSR 06-

03p, 2006 WL 2329939, at *5 (S.S.A. Aug. 9, 2006) (“The fact

that a medical opinion is from an ‘acceptable medical source’ is

a factor that may justify giving that opinion greater weight

44 than an opinion from a medical source who is not an ‘acceptable

medical source . . . .’”), the ALJ’s determination that Mr.

Rosario’s opinion deserved little weight gives the court no

reason to reverse her decision.

Dr. Shulik. Dr. Gunning referred Deoliveira to Dr. Shulik

for a memory evaluation. Dr. Shulik, in turn, administered the

Wechsler Abbreviated Scale of Intelligence (Second Edition), on

which Deoliveira exhibited a “normal profile,” Tr. 1023, and the

Wide Range Assessment of Memory and Learning – Second Edition,

on which Deoliveira exhibited a “weak profile,” id. According

to Dr. Shulik, Deoliveira’s “over-all score for the [memory]

test . . . place[d] her within the first percentile among her

peers in terms of general memory functioning.” Id. He then

diagnosed Deoliveira with a “[m]ajor neurocognitive disorder

secondary to stroke and head injuries.” Tr. 1024. Under the

heading “Discussion and Recommendations,” he elaborated:

Ms. deOlivera’s deficits seem to be genuine. . . . [S]he has put forth her best efforts in the context of this evaluation: [I have] no reason to believe that her low scores within the memory test battery represent feigning or malingering. Moreover . . . Ms. deOlivera’s memory deficits are of major proportions. They are consistent with her reports that she is unable to work at this time.

Tr. 1024.

The ALJ began her assessment of Dr. Shulik’s evaluation by

noting that Dr. Shulik “offered no opinion on the claimant’s

45 ability to perform specific work-related mental activities.”

Tr. 39. Then, she gave Dr. Shulik’s evaluation little weight

because: (1) his finding of a severe memory deficit was

inconsistent with the record as a whole, including both medical

and non-medical evidence; and (2) the evaluation was based on “a

one-time examination with findings not described anywhere else

in [claimant’s] neurology or mental health treatment records,”

Tr. 40, and was “more akin to an advocacy opinion,” id. In

addition, the ALJ pointed out that while Dr. Shulik did not

suspect that Deoliveira’s low scores resulted from feigning or

malingering, Joan Van Saun had reported inconsistent effort on

the functional capacity assessment she had administered, and

several treating sources had noted extensive non-compliance with

treatment. For her part, claimant offers a point-by-point

refutation of the reasons the ALJ gave for discounting Dr.

Shulik’s evaluation.

While the ALJ and the parties have devoted considerable

attention to Dr. Shulik’s evaluation, that evaluation, as the

ALJ correctly pointed out, “offered no opinion on the claimant’s

ability to perform specific work-related mental activities,” Tr.

39. For that reason, Dr. Shulik’s evaluation is not a medical

opinion. The applicable regulations define “medical opinions”

as

46 statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant’s] impairment(s), including [her] symptoms, diagnosis and progress, what [she] can still do despite impairment(s), and [her] physical or mental restrictions.

20 C.F.R. §§ 404.1527(a)(1) & 416.927(a)(1). While Dr. Shulik’s

evaluation includes various test results, it contains relatively

little in the way of judgments about the severity or functional

effects of claimant’s mental impairment(s). To be sure, Dr.

Shulik stated that claimant’s memory deficits were “consistent

with her reports that she [was] unable to work at [that] time.”

Tr. 1024. That, however, is not a medical opinion; it is an

opinion on an issue reserved to the commissioner, see 20 C.F.R.

§§ 404.1527(d)(1) & 416.927(d)(1), and as such, it is not

entitled to “any special significance,” 20 C.F.R. §§

404.1527(d)(3) & 416.927(d)(3). Indeed, if the ALJ had used the

test results from Dr. Shulik’s evaluation as the basis for

determining claimant’s mental RFC, she would have bumped into

the well-established principle that “an ALJ, as a lay person,

cannot interpret a claimant’s medical records to determine [her]

RFC [but] must rely to some degree on RFC evaluations from a

physician or another expert,” Piper v. Berryhill, No. 16-cv-455-

JL, 2018 WL 1392908, at *2 (D.N.H. Mar. 20, 2018) (quoting

Delafontaine v. Astrue, No. 1:10-cv-027-JL, 2011 WL 53084, at *

(D.N.H. Jan. 7, 2011)).

47 Because Dr. Shulik’s evaluation was not a medical opinion,

it was not subject to evaluation under 20 C.F.R. §§ 404.1527 &

416.927 in the first instance. Accordingly, the court need not

make this order any longer than it already is by addressing

arguments by the parties that treat Dr. Shulik’s evaluation as

if it were a medical opinion. More importantly, because Dr.

Shulik’s evaluation as not a medical opinion, it was not a

reversible error for the ALJ to determine – perhaps

unnecessarily – that that evaluation was entitled to little

weight.24

IV. Conclusion

Because the ALJ has committed neither a legal nor a factual

error in evaluating Deoliveira’s claim, see Manso-Pizarro, 76

F.3d at 16, her motion for an order reversing the Acting

Commissioner’s decision25 is denied, and the Acting

Commissioner’s motion for an order affirming her decision26 is

Finally, to the extent that claimant relies upon Dr. 24

Shulik’s evaluation for the proposition that she lacked enough capacity for memory to perform work-related activities, the only actual opinions on that issue come from her treating psychiatrist, who opined that she had a limited but satisfactory capacity to understand, remember, and carry out detailed instructions. 25 Document no. 8 26 Document no. 9 48 granted. The clerk of the court shall enter judgment in favor

of the Acting Commissioner and close the case.

SO ORDERED.

____________________________ Joseph N. Laplante United States District Judge

Dated: January 2, 2019

cc: D. Lance Tillinghast, Esq. Terry L. Ollila, AUSA