UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Valerie Marie Breton
v. Civil No. 16-cv-023-PB Opinion No. 2017 DNH 061 US Social Security Administration, Acting Commissioner, Nancy Berryhill
MEMORANDUM AND ORDER
Valerie Marie Breton challenges the decision of the Acting
Social Security Commissioner to deny her claim for disability
insurance benefits (“DIB”) under Title II of the Social Security
Act, 42 U.S.C. § 423. The Acting Commissioner moves for an
order affirming the decision. For the following reasons, I
affirm.
I. BACKGROUND
In accordance with Local Rule 9.1, the parties have
submitted a joint statement of stipulated facts (Doc. No. 9).
Because that joint statement is part of the court’s record, I do
not recount it here. I discuss facts relevant to the
disposition of this matter as necessary below. II. STANDARD OF REVIEW
I am authorized under 42 U.S.C. § 405(g) to review the
pleadings submitted by the parties and the administrative record
and enter a judgment affirming, modifying, or reversing the
“final decision” of the Commissioner. That review is limited,
however, “to determining whether the [Administrative Law Judge]
used the proper legal standards and found facts [based] upon the
proper quantum of evidence.” Ward v. Comm’r of Soc. Sec., 211
F.3d 652, 655 (1st Cir. 2000). I defer to the Administrative
Law Judge’s (ALJ’s) findings of fact, so long as those findings
are supported by substantial evidence. Id. Substantial
evidence exists “if a reasonable mind, reviewing the evidence in
the record as a whole, could accept it as adequate to support
his conclusion.” Irlanda Ortiz v. Sec’y of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (quoting
Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981)).
If the substantial evidence standard is met, the ALJ’s
factual findings are conclusive, even where the record “arguably
could support a different conclusion.” Id. at 770. Findings
are not conclusive, however, if the ALJ derived his findings by
“ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st
Cir. 1999) (per curiam). The ALJ is responsible for determining
2 issues of credibility and for drawing inferences from evidence
in the record. Irlanda Ortiz, 955 F.2d at 769. It is the role
of the ALJ, not the court, to resolve conflicts in the evidence.
Id.
III. ANALYSIS
Breton is a fifty-five-year-old woman who previously worked
as an administrative assistant, esthetician, and service
dispatcher. Tr. at 175. She filed a claim for DIB in January
2013, alleging disability as of October 4, 2012. After her
claim was denied, she requested a hearing before an ALJ. Tr. at
99. At the July 2014 hearing, which her attorney and a
vocational expert also attended, Breton testified before the
ALJ. Tr. at 55–79. The next month, the ALJ issued a written
decision concluding that she was not disabled. Tr. at. 22–36.
The ALJ evaluated Breton’s claim under the five-step
sequential process used for determining whether a claimant is
disabled. See 20 C.F.R. § 404.1520(a). At step one, the ALJ
found that she had not engaged in substantial gainful employment
since her alleged disability onset on October 4, 2012. Tr. at
24. At step two, the ALJ found that she had severe impairments
of fibromyalgia and affective disorder, but declined to find
other severe impairments. Tr. at 24–26; see § 404.1520(c). At
step three, the ALJ found that her impairments did not meet or
3 medically equal the severity of a listed impairment that would
qualify her as disabled. Tr. at 26–28; see § 404.1520(d). The
ALJ then found that despite her impairments, she had the
residual functional capacity to perform light work, subject to
additional specified limitations. Tr. at 28–34; see § 404.1545.
Based on that assessment, the ALJ determined that she could
perform her past relevant work as an administrative clerk. Tr.
at 35. In the alternative, the ALJ found at step five that even
if Breton could not perform her past work, her RFC enabled her
to transition to other work in the national economy. Tr. at 35–
36. Accordingly, the ALJ concluded that Breton was not
disabled. Tr. at 36. In November 2015, the Appeals Council
declined to review the ALJ’s decision. Tr. at 1. The ALJ’s
decision thus constitutes the Acting Commissioner’s final
decision, and this matter is now ripe for judicial review.
In January 2016, Breton appealed the ALJ’s decision to this
court. Doc. No. 1. On appeal, Breton argues that the ALJ’s
decision must be reversed because he incorrectly assessed her
residual functional capacity and erred in concluding at steps
three, four, and five that she was not disabled. See Doc. No.
7-1. Breton contends that the ALJ erred in finding her
statements not fully credible, and in placing great weight on
the opinions of psychologists and the state’s physician, but
only limited weight on the opinion of her treating primary care
4 physician. The Acting Commissioner argues in response that the
ALJ’s determinations were supported by substantial evidence. In
the following order, I address the ALJ’s credibility
determination, the weight he accorded to various medical
opinions, and his conclusions at steps three, four, and five.
A. Credibility Determination
The ALJ recounted and considered Breton’s statements
regarding her symptoms and limitations, but ultimately concluded
that the evidence did not support her allegations to the extent
alleged. Tr. at 29. Breton challenges this finding by arguing
that she consistently described disabling symptoms and
limitations, which are reflected in her diagnoses. The Acting
Commissioner responds that the ALJ’s credibility determination
is entitled to deference because Breton’s accounts conflicted
with the medical record and her daily activities.
“It is the ALJ’s responsibility to determine whether a
claimant’s statements about [her] symptoms are credible.” Otero
v. Colvin, 2015 DNH 161, 10; see 20 C.F.R. § 404.1529(c) (2016)
(since amended). “[SSR] 96-7p prescribes a two-step process
that an ALJ must follow to evaluate the veracity of a claimant’s
subjective complaints.” Otero, 2015 DNH 171, 10; see SSR 96-7p,
1996 WL 374186, at *2 (July 2, 1996). “First, the ALJ must
consider whether the claimant is suffering from ‘an underlying
medically determinable physical or mental impairment[] . . .
5 that could reasonably be expected to produce the individual’s
pain or other symptoms.’” Otero, 2015 DNH 171, 10–11
(alterations in original) (quoting SSR 96-7p, 1996 WL 374186, at
*2). “Second, the ALJ must determine whether the claimant’s
statements about h[er] symptoms are substantiated by objective
medical evidence.” Id. at 11. “If not, the ALJ must consider
other relevant information to weigh the credibility of h[er]
statements.” Id. “The ALJ’s credibility assessment ‘is
entitled to deference, especially when supported by specific
findings.’” Id. (quoting Frustaglia v. Sec’y of Health & Human
Servs., 829 F.2d 192, 195 (1st Cir. 1987) (per curiam)). “This
is because the ALJ, not the reviewing court, ‘observed the
claimant, evaluated [the claimant’s] demeanor, and considered
how that testimony fit in with the rest of the evidence . . . .”
Id. (alterations in original) (quoting Frustaglia, 829 F.2d at
195).
Breton argues that the ALJ did not sufficiently credit her
statements about her symptoms, which she claims were consistent
across “her written reports to Social Security as well as her
verbal reports to her treating providers.” Doc. No. 7-1 at 13.
In determining whether a claimant is disabled, the ALJ must
“consider all [of the claimant’s] symptoms, including pain, and
the extent to which [the claimant’s] symptoms can reasonably be
accepted as consistent with the objective medical evidence and
6 other evidence.” 20 C.F.R. § 404.1529(a) (2016) (since
amended). That “other evidence” includes a claimant’s own
reports, but a claimant’s “statements about [her] pain or other
symptoms will not alone establish that [she is] disabled.” Id.
Breton complained of a litany of physical symptoms (e.g., pain
in her back, toes, feet, stomach, shoulders, arm, groin, and
knees; numbness in her hand and cramping when she grips;
difficulty sleeping; and fainting from pain), manifesting in a
variety of physical limitations (e.g., reduced range of motion,
difficulties standing or sitting for extended periods, driving
longer than fifteen to twenty minutes, and an inability to bend
over), as well as mental symptoms (e.g., depression, anxiety,
panic attacks, fatigue, confusion, and poor memory). The ALJ
declined to credit Breton’s reports of her symptoms to the
extent she alleged. See SSR 96-7p, 1996 WL 374186, at *4 (“The
adjudicator may . . . find an individual’s statements, such as
statements about the extent of functional limitations or
restrictions due to pain or other symptoms, to be credible to a
certain degree.”). In explaining his finding, the ALJ addressed
a variety of sources. The ALJ made many specific citations to
her statements, treatment records, diagnostic findings, and the
opinions of treating and non-treating sources. See Tr. at 28–
35. He contrasted her subjective reports with the objective
medical evidence and her activities. He also observed
7 inconsistency in her reports to medical sources. Although “the
symptoms of [fibromyalgia] can wax and wane so that a person may
have ‘bad days and good days,’” the ALJ considered and
substantially recounted her longitudinal medical record. See
SSR 12-2p, 2012 WL 3104869, at *6 (July 25, 2012).
Breton argues that the ALJ’s decision “consistently
downplays [her] diagnoses.” Doc. No. 7-1 at 13. As an example,
she offers the ALJ’s statement that “[i]n October, 2012, Dr.
O’Brien stated she was improved and that her final diagnosis was
‘probably fibromyalgia’ although patient notes show only a
continued diagnosis of chronic pain.” Doc. No. 7-1 at 13.
Breton seizes on the fact that the treatment notes from that
date also include a number of other diagnoses, including anxiety
and depression. But she reads too much into the ALJ’s
statement. The ALJ did not deny that she had other diagnoses.
Rather, the ALJ described the October 2012 notes in the context
of Breton’s consultation with a rheumatologist regarding a
possible fibromyalgia diagnosis, and the ALJ’s statement is
fairly interpreted as merely noting that fibromyalgia was not
conclusively diagnosed as of October 2012.
The ALJ also noted that the records of Breton’s treating
providers contain what could reasonably be interpreted as
reservations. For example, her degenerative disk disease was
determined to be non-severe, and even her most sympathetic
8 medical source, Dr. O’Brien, noted that it “certainly could
account for some of her pain but probably not to the degree that
she is feeling,” and there was “no clear answer as to what [was]
causing her pain.” Tr. at 441. Similarly, the physician she
repeatedly saw for pain management, Dr. Baccus, concluded that a
“significant portion of her total pain [picture] is an
undertreated mood disorder and [C]ymbalta may help both the mood
and the musculoskeletal pain.” Tr. at 254. Dr. Baccus further
noted that even though she reported less pain in the areas that
he treated, she continued to report that her global pain level
remained static. Tr. at 251.
More pointedly, support for the ALJ’s credibility
determination comes from the treatment records from around the
time of Breton’s alleged disability onset in October 2012. The
ALJ recognized that Breton had “improved,” citing Dr. O’Brien’s
treatment notes that “she’s been doing somewhat better” and
“[o]verall her pain level is fairly well-controlled at this time
and her sleep is somewhat functional.” Tr. at 367. The
treatment notes show that although she had some tenderness on
the spine, she was “alert and cooperative,” with a “normal mood
and affect” and “normal attention span and concentration.” Tr.
at 369. Between that time and January 2013, when she applied
for disability benefits, the record does not show contact with a
rheumatologist or any other doctors about any problems. The ALJ
9 also recognized that she never sought out a psychologist or
psychiatrist to deal with her emotional and psychological
symptoms and limitations. These considerations provide further
support for the ALJ’s credibility determination.
The ALJ observed Breton’s demeanor and supported his
determination with specific findings and citations. See Otero,
2015 DNH 171, 10–12; see also Frustaglia, 829 F.2d at 195.
Based on the substantial evidence recounted above, I conclude
that the ALJ’s credibility determination is entitled to
deference.
B. Medical Opinion Weight
Breton next argues that the ALJ improperly gave great
weight to the medical opinions of psychologist Dinan,
psychologist Schneider, and state physician Fairley, but only
limited weight to treating physician O’Brien. The Acting
Commissioner responds by arguing that weighing competing medical
opinions is the province of the ALJ, and the ALJ’s assessment of
the medical opinion evidence is supported by substantial
evidence.
The ALJ must consider and evaluate all medical opinions of
record. 20 C.F.R. § 404.1527(b)–(c) (2016) (since amended).
“The Commissioner must give ‘controlling weight’ to the opinion
of a treating source if that opinion ‘is well-supported by
medically acceptable clinical and laboratory diagnostic
10 techniques and is not inconsistent with the other substantial
evidence in [the] case record.’” Widlund v. Astrue, No. 11-cv-
371-JL, 2012 WL 1676990, at *8 (D.N.H. Apr. 16, 2012)
(alteration in original) (quoting §§ 404.1527(c)(2),
416.927(c)(2) (2016) (since amended)), report and recommendation
adopted sub nom. Widlund v. U.S. Soc. Sec. Admin., Comm’r, No.
11-cv-371-JL, 2012 WL 1676984 (D.N.H. May 14, 2012). Where the
ALJ discounts a treating source’s opinion, the ALJ must give
good reasons for doing so. § 404.1527(c)(2) (2016) (since
amended). Further, “[i]f the RFC assessment conflicts with an
opinion from a medical source, the adjudicator must explain why
the opinion was not adopted.” SSR 96-8p, 1996 WL 374184, at *7
(July 2, 1996).
1. Dr. O’Brien
The ALJ wrote that he “considered and assigned limited
weight to the opinion of treating physician [O’Brien].” Tr. at
33. Dr. O’Brien opined that Breton could frequently lift and
occasionally carry up to ten pounds, but never more than that,
and she could not stand, sit, or walk for more than five-and-a-
half hours collectively in an eight-hour workday. Tr. at 508–
09. The ALJ assigned this opinion limited weight because Dr.
O’Brien’s “conclusions appear based in part on the claimant’s
subjective complaints and are inconsistent with his treatment
notes.” Tr. at 33. The ALJ analyzed Dr. O’Brien’s opinion in
11 relation to the other evidence in the record, which he cited
extensively. For example, the ALJ cited discrete capacity
determinations made by Dr. O’Brien and explained why those
determinations meaningfully conflict with notations in Dr.
O’Brien’s own examination records. See Tr. at 33–34. The ALJ’s
explanation is reasonable and sufficient. I conclude that the
ALJ’s weighting of Dr. O’Brien’s medical opinion was based on
substantial evidence.
2. Dr. Dinan
The ALJ accorded great weight to the opinion of
psychologist William Dinan, Ph.D., and gave two reasons for his
assessment. First, the ALJ explained that Dr. Dinan’s
“conclusions are consistent with his exam of the claimant,” in
contrast with the weaker relationship between Dr. O’Brien’s
treatment records and ultimate opinion. See Tr. at 34. Second,
the ALJ explained that Dr. Dinan had “special expertise as a
psychologist.” Tr. at 34. As Dr. Baccus noted, Breton’s
overall “pain [picture]” could not be explained without a
psychological lens, which was lacking. Tr. at 254. Although
Breton emphasizes that Dr. Dinan saw her on only one occasion,
the ALJ was entitled to give great weight to Dr. Dinan’s opinion
given its importance to the case and the paucity of other
psychological evaluations in the record. I conclude that the
12 ALJ’s weighting of Dr. Dinan’s opinion was based on substantial
3. Dr. Schneider
The ALJ similarly placed great weight on the opinion of
reviewing psychologist Michael Schneider, Psy.D. Tr. at 34.
Dr. Schneider reached a conclusion similar to Dr. Dinan’s. Tr.
at 90. The ALJ, in turn, found that Dr. Schneider’s conclusion
was reinforced by the similar conclusion of Dr. Dinan. See Tr.
At 34, 90. The ALJ also found that Dr. Schneider’s
psychological expertise had special utility. This substantial
evidence justifies the weight that the ALJ placed on Dr.
Schneider’s opinion.1 For these reasons, I conclude that the
ALJ’s weighting of Dr. Schneider’s opinion was based on
4. Dr. Fairley
The ALJ also assigned great weight to the opinion of the
state agency’s reviewing physician, Hugh Fairley, M.D. The ALJ
explained that Dr. Fairley’s opinion is consistent with the
1 Breton notes that although Dr. Schneider found that she “is able to interact appropriately with peers and supervisors,” he also concluded that Breton “is able to respond appropriately to changes in the work setting only in a relatively low stress work environment where supervisory criticism is not overly critical.” Tr. at 90. Breton argues that it is “telling” that the ALJ gave little weight to this limitation. Doc. No. 7-1 at 21. But this limitation is vague, and the record reveals that the ALJ’s RFC assessment incorporates the limitation that Breton “should not work in a fast paced production job.” Tr. at 28. 13 examination records. Tr. at 33. To illustrate, the ALJ cited
ten granular findings from the medical records and activities of
daily living and explained that they comport with Dr. Fairley’s
individual conclusions. See Tr. at 33. Breton nevertheless
complains that the ALJ improperly assigned great weight to Dr.
Fairley’s opinion in part because the opinion was consistent
with Breton’s daily cell phone gaming. According to Breton, the
ALJ’s reliance on this finding “calls his analysis into serious
question.” Doc. No. 7-1 at 16. I disagree. The finding that
Breton complains of was only one of ten that the ALJ highlighted
in explaining why Dr. Fairley’s conclusions were entitled to
significant weight. Put simply, even if the ALJ’s focus on
Breton’s cell phone gaming was disproportionate to its
relevance, Breton, in turn, drastically overstates the
importance of that activity in the ALJ’s reasoning. For these
reasons, I conclude that the ALJ’s weighting of Dr. Fairley’s
opinion was supported by substantial evidence.
C. Step Three: Listings
The ALJ determined at step two that Breton suffered from
the severe impairments of fibromyalgia and affective disorder,
but found no other severe impairments. Breton does not
challenge the ALJ’s step two determination. Instead, she argues
that the ALJ erred at step three in failing to determine that
her impairments meet or exceed three listed impairments —
14 specifically listings 14.06 (“Undifferentiated and mixed
connective tissue disease”), 1.04 (“Disorders of the spine”),
and 12.06 (“Anxiety . . . disorders”). See 20 C.F.R. §
404.1520(d); see also 20 C.F.R. Part 404, Subpart P, App. 1,
Listings 1.04, 12.06, 14.06 (2014) (12.06 since amended).
A claimant is disabled at step three if her impairments
qualify for an impairment listed in appendix 1. § 404.1520(d)
“Most of the listed impairments are permanent or expected to
result in death.” § 404.1525(c)(4). Each listing specifies the
objective medical and other findings that are required to meet
it. § 404.1525(c)(3). If the claimant’s impairment “does not
meet the criteria of a listing,” alternatively “it can medically
equal” that criteria. § 404.1525(c)(5). An impairment “is
medically equivalent to a listed impairment in appendix 1 if it
is at least equal in severity and duration to the criteria of
any listed impairment.” § 404.1526(a). Medical equivalence is
determined by reviewing all the relevant evidence in the record
and the effect on the claimant. § 404.1526(c).
“In considering whether [claimant’s] symptoms, signs, and
laboratory findings are medically equal to the symptoms, signs,
and laboratory findings of a listed impairment,” the ALJ looks
to whether those indicia “are at least equal in severity to the
listed criteria.” § 404.1529(d)(3). The ALJ cannot, however,
15 “substitute [a claimant’s] allegations of pain or other symptoms
for a missing or deficient sign or laboratory finding to raise
the severity of [a claimant’s] impairment(s) to that of a listed
impairment.” § 404.1529(d)(3). The claimant has the burden of
proving that she qualifies for a listing. See Dudley v. Sec’y
of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987) (per
curiam).
1. Disorder of the Spine
Breton asserts in a conclusory manner that her impairments
qualify for the spine disorder listed under Listing 1.04. That
section provides in pertinent part:
Disorders of the spine (e.g., . . . degenerative disc disease . . . ), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With: . . . [s]pinal arachnoiditis, confirmed by . . . appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours . . . .
Part 404, Subpart P, App. 1, Listing 1.04. This argument fails
for several reasons. First, Breton has not challenged the ALJ’s
determination at step two that she lacked a severe impairment of
degenerative disk disease. Nor has Breton otherwise explained
why her severe impairments satisfy or medically equal this
listing. She has failed to cite to the record, meaningfully
engage with the listing criteria, marshal evidence (e.g., by
explaining the relevance of her cervical spine MRI), or
16 otherwise advance an argument. Given these failures, I decline
to reverse the ALJ’s step three determination on the basis of
listing 1.04.
2. Anxiety Disorder and Tissue Disease
Breton next argues that her impairments qualify under
sections 14.06 (“Undifferentiated and mixed connective tissue
disease”) and 12.06 (“Anxiety . . . disorders”). Among other
criteria, those sections may involve determining whether the
claimant has “marked” limitations in 1) activities of daily
living, 2) maintaining social functioning, and 3) concentration,
persistence, or pace.2 See Part 404, Subpart P, App. 1, Listings
14.06, 12.06 (2014) (12.06 since amended). Breton argues that
the ALJ erred in concluding that her limitations in those
categories were not marked. The Acting Commissioner responds
that the ALJ’s determinations are supported by substantial
2 Breton does not explain why she meets or medically equals the other criteria specified in the listing, see, e.g., Listing 14.06(A), so I limit my discussion to the severity of her condition in the areas identified. In addition, section 12.06 also considers whether the claimant has had “[r]epeated episodes of decompensation, each of extended duration,” Listing 12.06(B)(4), or a “complete inability to function outside the area of one’s home,” Listing 12.06(C). Breton does not challenge the ALJ’s decision on those grounds. 17 a. Activities of Daily Living
The ALJ concluded that Breton had a “mild restriction” in
her activities of daily living. Tr. at 27. He supported his
decision with the following evidence:
The claimant lives with her husband. She takes care of cats, prepares meals, does household chores, washes laundry, takes care of indoor plants, and drives a vehicle (Ex. 3E/7). She shops in stores and by computer one to two times per week for 2 to 3 hours. She manages her own finances and uses a computer program to organize her finances. She manages her own personal care, although she reported some difficulties due to physical limitations. She reported that on a typical day she goes to her elderly parents’ house in the morning and returns home about 2 p.m., then does housework. She also plays an internet computer game up to 45 minutes per day using a smart phone, indicating significant use of her hands. The record indicates no more than mild limitations in activities of daily living that are related to a mental disorder.
Tr. at 27. In addition, neither psychologist found a marked
restriction. Psychologist Dinan concluded on the basis of a
consultative examination that Breton’s “abilities to complete
activities of daily living are without impairment.” Tr. at 482.
Reviewing psychologist Schneider similarly concluded that Breton
had “mild” restrictions in such activities. Tr. at 85. For
these reasons, the ALJ concluded that her limitations were not
marked.
Breton argues that other evidence in the record, not cited
by the ALJ, shows that her functioning is markedly impaired.
For example, she notes that she “requires alarms to remind her
18 to take her medication.” Doc. No. 7-1 at 11. But that is not
uncommon, and the other examples that she supplies similarly
fail to materially change the picture of her limitations.
b. Social Functioning
The ALJ concluded that Breton has “moderate difficulties”
in social functioning. Tr. at 27. In reaching this
determination, the ALJ explained that she lives with her husband
without difficulty, occasionally attends dinner parties, visits
her parents twice a week, and has no difficulties “getting along
with” her family, friends, and neighbors. Tr. at 27. But the
ALJ also acknowledged that Breton had notable difficulties with
her supervisor at her prior job. Tr. at 27. Psychologist Dinan
concluded that her “abilities to interact appropriately and
communicate effectively are without impairment,” Tr. at 482, and
psychologist Schneider concluded that Breton’s difficulties were
no greater than “moderate,” Tr. at 89–90. Breton responds to
the ALJ’s determination by emphasizing her statements in the
record that she is reclusive, “hardly keeps in touch with family
and friends,” and is “not very social, ‘mostly a wallflower.’”
Doc. No. 7-1 at 12. But those traits are also consistent with
shyness and introversion, and they do not necessarily entail
marked difficulties in social functioning. In fact, Breton
indicated that she got along with many of her coworkers.
Accordingly, I conclude that the ALJ’s determination that Breton
19 had only moderate difficulties in social functioning was
supported by substantial evidence.
c. Concentration, Persistence, and Pace
The ALJ also concluded that Breton had “moderate
difficulties” in concentration, persistence, and pace. Tr. at
27. The ALJ explained that Breton was able to play word games
on her cell phone for 45 minutes and that psychologist Dinan
concluded, after directly examining and observing Breton, that
“she was alert and oriented, and that her memory function was
observed to be fair over all time intervals, and intellectual
functioning was estimated in the average range.” Tr. at 27.
Psychologist Dinan also concluded that Breton’s “abilities to
understand and remember instructions are without impairment.”
Tr. at 34, 482. But the ALJ did find that Breton had some
cognitive limitations, based on her reports of “fatigue and pain
that reduces her ability to concentrate and follow verbal
instructions,” and psychologist Dinan’s conclusion that she had
limitations when working on unfamiliar tasks or in fast-paced
work environments. Tr. at 27, 34, 482. The ALJ considered
those limitations to be moderate.
Breton devotes only a sentence to contesting this
conclusion. She notes without elaboration that “the ALJ again
focuses on the fact that [she] truthfully reported that she
plays a computer game on her smart phone” and “uses a computer
20 program to manage her finances.” Doc. No. 7-1 at 12. This
perfunctory statement does not explain why the ALJ’s decision
was based on less than substantial evidence. The ALJ’s
determination was not based simply on her use of computer
software, and the ALJ’s conclusion echoes those reached by the
psychologists. Although Breton did have some limitations in
concentration, persistence, and pace, the ALJ had substantial
evidence for concluding that they did not rise to the level of
“marked.”
In sum, the ALJ had substantial evidence for concluding
that Breton did not have marked limitations in the areas
specified in the listings. Thus, even if the record “arguably
could support a different conclusion,” the ALJ’s findings are
conclusive. Irlanda Ortiz, 955 F.2d at 770. Accordingly, I
conclude that the ALJ did not commit reversible error in
determining that Breton was not disabled at step three.
D. Residual Functional Capacity
Because Breton did not qualify for a step three listing,
the ALJ proceeded to assess her residual functional capacity.
See 20 C.F.R. §§ 404.1520(a)(4)(iv),(e), 404.1545. The ALJ
concluded that, despite her impairments,
[Breton] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)[3]
3 “Light work” is defined as: 21 except she can never climb scaffolds, ropes or ladders; can occasionally bend, stoop, crouch, kneel and crawl; and should never be exposed to unprotected heights. The claimant has the ability to understand, remember and carry out short, detailed and complex instructions. She has the ability to maintain attention for the two-hour periods in the typical 8- hour workday and 40-hour work week. She can respond appropriately to changes, can interact appropriately with peers and supervisors, but should not work in a fast paced production job.
Tr. at 28. In arriving at this RFC assessment, the ALJ relied
on the objective evidence in the record together with Breton’s
subjective reports, to the extent he found her account credible.
The ALJ also gave “limited weight to the opinion of treating
physician [O’Brien] because his conclusions appear based in part
on [Breton’s] subjective complaints and are inconsistent with
his treatment notes.” Tr. at 33. In contrast, the ALJ gave
great weight to the opinions of reviewing physician Fairley,
examining psychologist Dinan, and reviewing psychologist
Schneider. Tr. at 33–34.
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [claimant] must have the ability to do substantially all of these activities. 20 C.F.R. § 404.1567(b).
22 Breton’s arguments are largely directed at the ALJ’s
credibility determination and weighting of medical opinions, but
those determinations are entitled to deference for the reasons
stated above. Having put to rest those arguments, I conclude
that the ALJ’s RFC assessment was based on substantial evidence.4
Breton’s exertional RFC mirrors the very similar assessment
given by the state’s reviewing physician, Dr. Fairley.
Similarly, Breton’s non-exertional RFC is well supported by the
opinions of the only two psychologists who provided opinions and
by the dearth of objective evidence in the record clearly
establishing greater non-exertional limitations. For these
reasons, I conclude that the ALJ’s RFC determination was based
on substantial evidence.
4 Breton emphasizes that because she suffers from fibromyalgia “her case warrants evaluation under the criteria set forth in [SSR 12-2p].” Doc. No. 7-1 at 7; see SSR 12-2p, 2012 WL 3104869. She does not elaborate further, and her intended point is unclear. She offers no “explanation of how the ALJ actually deviated from SSR 12–2P.” See Diaz v. U.S. Soc. Sec. Admin., Acting Comm’r, 2015 DNH 174, 4. In fact, “[a]t step two . . . the ALJ recognized fibromyalgia as one of [her] severe medically determinable impairments.” See id.; Tr. at 24. Although “the ALJ’s decision does not cite SSR 12–2p, that omission does not establish reversible error in the absence of any showing that the decision is materially inconsistent with the regulation.” Diaz, 2015 DNH 174, 5; cf. Anderson v. Colvin, 2014 DNH 232, 10– 11. Because Breton “has made no such showing, her argument based on SSR 12–2p is without merit.” Diaz, 2015 DNH 174, 5. 23 E. Steps Four and Five: Ability to Work
Breton half-heartedly challenges the ALJ’s conclusions that
she is not disabled at steps four and five. The Acting
Commissioner responds by arguing that Breton has merely restated
her challenges to the ALJ’s RFC assessment, and the vocational
expert’s testimony, which was based on that RFC, offers
substantial evidence for the ALJ’s conclusion that Breton can
work.
At step four, the ALJ must consider the claimant’s RFC and
her past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv),
(f), 404.1560(b). The ALJ may use a vocational expert to obtain
evidence about whether the claimant is able to do her past
relevant work, given the vocational expert’s knowledge of its
physical and mental demands. § 404.1560(b)(2). “[A] vocational
expert or specialist may offer expert opinion testimony in
response to a hypothetical question about whether a person with
the physical and mental limitations imposed by the claimant’s
medical impairment(s) can meet the demands of [her] previous
work . . . .” Id. If the claimant has the RFC to do her past
relevant work, including as generally performed in the national
economy, she is considered able to do it and not disabled. §§
404.1520(a)(4)(iv); 404.1560(b). At the hearing below, the ALJ
posed a hypothetical RFC, which mirrored Breton’s RFC, to the
vocational expert and asked about the work implications. Tr. at
24 74–75. The expert answered that a claimant with that RFC could
still perform past relevant work as an administrative clerk.
Tr. at 75; see Dictionary of Occupational Titles, No. 219.362-
010, 1991 WL 671953. The ALJ permissibly relied on that
testimony in concluding that Breton was not disabled at step
four. SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000).
The ALJ also concluded, in the alternative, that Breton was
not disabled at step five. A claimant is not disabled at step
five if her RFC allows her to adjust to a different job that
exists in significant numbers in the national economy. See 20
C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c). The vocational expert
opined that a hypothetical person with the claimant’s age,
education, and work experience could indeed adjust to such work.
The vocational expert cited the jobs of merchandise marker,
cashier II, and sales attendant. See Tr. at 75; Dictionary of
Occupational Titles, No. 209.587-034, 1991 WL 671802 (Marker);
No. 211.462-010, 1991 WL 671840 (Cashier II); No. 299.677-010,
1991 WL 672643 (Sales Attendant). The ALJ again permissibly
relied on that testimony in concluding, in the alternative at
step five, that Breton was not disabled.
Breton has little to say about the ALJ’s step four and five
conclusions. She does not claim that the hypothetical
assumptions supplied to the vocational expert materially
departed from the ALJ’s RFC assessment. See Arocho v. Sec’y of
25 Health & Human Servs., 670 F.2d 374, 375 (1st Cir. 1982).
Rather, Breton’s challenge is “simply a restatement of [her]
argument that the ALJ improperly weighed the evidence in
determining her RFC, which the court rejects for the reasons
already discussed at length.” See Chapin v. Astrue, 2012 DNH
177, 15. Thus, I conclude that the ALJ had substantial evidence
for his conclusions that Breton was not disabled at steps four
and five.
IV. CONCLUSION
For the reasons stated, I grant the Acting Commissioner’s
motion to affirm (Doc. No. 10) and deny Breton’s motion to
reverse (Doc. No. 7). The clerk is directed to enter judgment
accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
March 27, 2017
cc: William D. Woodbury, Esq. Terry L. Ollila, Esq.