UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Brian Shaw
v. Civil No. 19-cv-730-LM Opinion No. 2020 DNH 100 Andrew Saul1, Commissioner, U.S. Social Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Brian Shaw seeks judicial
review of the decision of the Commissioner of the Social
Security Administration denying his applications for disability
insurance benefits and for supplemental security income. Shaw
moves to reverse the Commissioner’s decision, contending that
the Administrative Law Judge (“ALJ”) erred by assigning improper
weight to the medical opinions in the record. The
Administration moves to affirm. For the reasons discussed
below, the decision of the Commissioner is affirmed.
STANDARD OF REVIEW
In reviewing the final decision of the Commissioner under
Section 405(g), the court “is limited to determining whether the
ALJ deployed the proper legal standards and found facts upon the
1 On June 17, 2019, Andrew Saul was sworn in as Commissioner of Social Security. Pursuant to Fed. R. Civ. P. 25(d), he automatically replaces the nominal defendant, Nancy A. Berryhill, who had been Acting Commissioner of Social Security. proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999); accord Seavey v. Barnhart, 276 F.3d 1, 9 (1st
Cir. 2001). The court defers to the ALJ’s factual findings as
long as they are supported by substantial evidence. 42 U.S.C. §
405(g); see also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir.
2016). “Substantial-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.” Purdy v. Berryhill, 887 F.3d
7, 13 (1st Cir. 2018) (citation omitted). Rather, the court
“must uphold the 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.” Id. (citation, internal
modifications omitted).
DISABILITY ANALYSIS FRAMEWORK
To establish disability for purposes of the Social Security
Act (the “Act”), a claimant must demonstrate an "inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected . . . to last for a continuous period of not less than
12 months." 42 U.S.C. § 423(d)(1)(A). The Commissioner has
established a five-step sequential process for determining
whether a claimant has made the requisite demonstration. 20
2 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). The claimant “has the burden
of production and proof at the first four steps of the process.”
Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). The
first three steps are: (1) determining whether the claimant is
engaged in substantial gainful activity; (2) determining whether
he has a severe impairment; and (3) determining whether the
impairment meets or equals a listed impairment. 20 C.F.R. §§
404.1520c(a)(4)(i)-(iii), 416.920(a)(4)(i)-(iii).
If the claimant meets his burden at the first two steps of
the sequential analysis, but not at the third, an ALJ assesses
the claimant’s residual functional capacity (“RFC”), which is a
determination of the most a person can do in a work setting
despite the limitations caused by his impairments. Id. §§
404.1520(e), 416.920(e), 404.1545(a)(1), 416.945(a)(1); see also
S.S.R. No. 96-8p, 1996 WL 374184 (S.S.A. July 2, 1996). At the
fourth step of the sequential analysis, the ALJ considers the
claimant’s RFC in light of his past relevant work. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can
perform his past relevant work, the ALJ will find that the
claimant is not disabled. See id. If the claimant cannot
perform his past relevant work, the ALJ proceeds to the fifth
step, at which it is the Administration’s burden to show that
3 jobs exist in the economy which the claimant can do in light of
his RFC. See id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
BACKGROUND
A detailed recital of the factual background can be found
in Shaw’s statement of facts (doc. no. 8) as supplemented by the
Commissioner’s statement of facts (doc. no. 10), and in the
transcript of the administrative record (doc. no. 6). The court
provides a brief summary of the case here and provides further
summary of Shaw’s medical history below, in connection with its
discussion of the issues raised by the parties.
Shaw filed an application for disability insurance benefits
and an application for supplemental security income on March 20,
2018, alleging a disability onset date of November 6, 2017.2
Shaw alleged that he was disabled due to seizures, muscle
weakness and loss of mobility in his left arm, chronic nerve
2 Shaw’s Statement of Material Facts contains a reference to Shaw’s “amended alleged disability onset date of December 31, 2014.” Doc. no. 8, ¶ 1. This reference appears to have been included in error. There is no other suggestion elsewhere in the record that Shaw ever amended his alleged disability onset date. Moreover, the medical record makes clear that Shaw’s allegedly disabling conditions were not present as of December 31, 2014, but rather arose in November 2017, nearly three years later. See Admin. Rec. at 278-379, 381-400. In addition, it is clear from the record that Shaw worked full time from 2014 through approximately November 2016, nearly two years after the referenced date. See id. at 47-48, 197-209. Finally, neither Shaw’s complaint nor the memorandum in support of Shaw’s motion suggests that Shaw was disabled prior to November 6, 2017. See doc nos. 1, 7. The court therefore disregards the reference.
4 pain, severe headaches, and posterior reversible encephalopathy
syndrome (“PRES”). Shaw met the insured status requirements of
the Act through December 31, 2017.
After the Administration denied Shaw’s application, Shaw
requested a hearing before an ALJ. The ALJ held a hearing on
February 13, 2019. Shaw testified at the hearing, as did
impartial vocational expert Elizabeth C. Laflamme.
The ALJ issued an unfavorable decision on February 26,
2019. She found that Shaw had a combination of severe
impairments consisting of status post PRES, degenerative disc
disease of the cervical spine with left C5-6 radiculopathy, left
carpal tunnel syndrome, post-traumatic stress disorder (“PTSD”),
and mild neurocognitive disorder.3 The ALJ did not find that
Shaw’s combination of impairments met or equaled the severity of
the impairments listed at 20 C.F.R. § 404, Subpart P, Appendix
1.
The ALJ found that Shaw had the residual functional
capacity to perform light work as defined at 20 C.F.R. §§
404.1567(b) and 416.967(b), with the following physical
limitations:
[Shaw] can lift and carry 20 pounds occasionally but he cannot lift more than 10 pounds with the upper
3 The ALJ did not find that Shaw was severely impaired in connection with his other diagnosed conditions, namely hypertension, high cholesterol, and possible postural orthostatic tachycardia syndrome.
5 extremity alone; he can frequently lift up to 10 pounds; he can sit for 6 hours in an 8-hour workday; [he can] stand and walk for 4 hours in an 8-hour workday; he cannot climb ladders, ropes, or scaffolds; he can occasionally climb ramps and stairs; he cannot crawl; he can occasionally balance, stoop, kneel, and crouch; he cannot perform overhead reaching with the dominant, left upper extremity; he is limited to frequent fingering and handline with his dominant, left upper extremity; he should not be exposed to vibrations (i.e., handheld power tools); and he should not be exposed to hazards (i.e., unprotected heights and dangerous moving machinery).
Admin. Rec. at 15. The ALJ assessed Shaw’s mental limitations
as follows:
[Shaw] is able to understand, remember, and carry out uncomplicated tasks (i.e., tasks typically learned in less than 30 days); instructions must be given orally and/or in writing; and he can maintain concentration, persistence, and pace for two-hour blocks of time throughout the workday, consistent with regularly scheduled breaks/lunch.
Id.
In assessing Shaw’s RFC, the ALJ found that Shaw’s
testimony regarding the intensity, persistence, and limiting
effects of his symptoms was not fully consistent with the
available medical evidence. The ALJ considered all of the
medical evidence of record, including the opinions of reviewing
consultative physician Stephanie Green, M.D., examining
neurologist Samhitha Rai, M.D., treating physician’s assistant
Marcy Starling, PA-C, reviewing consultative psychiatrist
Stephen Kleinman, M.D., examining consultative psychologist
Stefanie Griffin, Ph.D., and treating social worker Rachael
6 Wizwer. In connection with her assessment of Shaw’s physical
RFC, the ALJ found the opinion of reviewing consultative
physician Dr. Green to be persuasive, well-supported, and
consistent with the medical evidence of record, but found the
opinions of examining neurologist Dr. Rai and treating
physician’s assistant Starling to be less persuasive on both
supportability and consistency grounds. In connection with her
assessment of Shaw’s mental RFC, the ALJ similarly found the
opinion of reviewing consultative psychiatrist Dr. Kleinman to
be persuasive, well-supported, and consistent with the medical
evidence of record, but found the opinions of examining
consultative psychologist Dr. Griffin and treating social worker
Wizwer to be less persuasive on both supportability and
consistency grounds.
In response to hypothetical questions posed by the ALJ,
Laflamme, the impartial vocational expert, testified to her
opinion that a person with Shaw’s age, education, past work
experience, and RFC could perform the job duties of occupations
existing in significant numbers in the national economy,
including as representative examples laundry classifier, price
marker, and school bus monitor. Based on this testimony, the
ALJ found at Step Five of the sequential process that Shaw was
not disabled for purposes of the Social Security Act, and had
not been under a disability from November 6, 2017 (his alleged
7 disability onset date) through February 26, 2019 (the date the
ALJ’s decision issued).
On June 24, 2019, the Appeals Council denied Shaw’s request
for review. In consequence, the ALJ’s decision became the
Administration’s final order for purposes of judicial review.
20 C.F.R. § 422.210(a); see also, e.g., Sims v. Apfel, 530 U.S.
103, 107 (2000). This action followed.
DISCUSSION
On appeal, Shaw argues that the ALJ erred in weighing the
medical opinions of record. Specifically, Shaw argues that the
ALJ erred in her assessment of his physical RFC when she found
the opinion of reviewing consultative physician Dr. Green more
persuasive than the contrary opinions of examining neurologist
Dr. Rai and treating physician’s assistant Starling. Shaw
further argues that the ALJ erred in her assessment of his
mental RFC when she found the opinion of reviewing consultative
psychiatrist Dr. Kleinman more persuasive than the contrary
opinions of examining consultative psychologist Dr. Griffin and
treating social worker Wizwer.
For applications like this one, filed on or after March 27, 2017, the [Administration] has fundamentally changed how adjudicators assess opinion evidence. The familiar and longstanding requirements—that adjudicators must assign “controlling weight” to a well-supported treating source’s medical opinion that is consistent with other evidence, and, if controlling
8 weight is not given, must state the specific weight that is assigned—are gone.
Nicole C. v. Saul, Case No. CV 19-127JJM, 2020 WL 57727, at *4
(D.R.I. Jan. 6, 2020) (citing 20 C.F.R. § 404.1520c(a)). Under
the newly applicable regulations, which (as noted) govern
applications filed on or after March 27, 2017, an ALJ does not
assign specific evidentiary weight to any medical opinion and
does not defer to the opinion of any medical source (including
the claimant’s treating providers). 20 C.F.R. §§ 404.1520c(a),
416.920c(a). Instead, the ALJ evaluates the relative
persuasiveness of the medical evidence in terms of five
specified factors. Id.
The five factors the ALJ considers in evaluating the
persuasiveness of a medical opinion are supportability (the
relevance of the opinion’s cited objective medical evidence),
consistency (how consistent the opinion is with all of the
evidence from medical and non-medical sources),
treatment/examining relationship (including length of treatment
relationship, frequency of examinations, purpose of treatment
relationship, and existence and extent of treatment/examining
relationship), specialization (the relevance of the source’s
specialized education or training to the claimant’s condition),
and what the Administration refers to as “other factors” (the
medical source’s familiarity with the claimant’s medical record
9 as a whole and/or with the Administration’s policies or
evidentiary requirements). Id. §§ 404.1520c(c)(1)-(5),
416.920c(c)(1)-(5) (emphasis supplied). Of the five factors,
the “most important” are supportability and consistency. Id. §§
404.1520c(a), 404.1520c(b)(2), 416.920c(a), 416.920c(b)(2).
Although the ALJ must consider all five of the factors in
evaluating the persuasiveness of medical evidence, when
preparing the written decision the ALJ is, in most cases, only
required to discuss application of the supportability and
consistency factors. Id. §§ 404.1520c(b)(2), 416.920c(b)(2).
Only where contrary medical opinions are equally persuasive in
terms of both supportability and consistency is the ALJ required
to discuss their relative persuasiveness in terms of the
treatment/examining relationship, specialization, and other
factors. Id. §§ 404.1520c(b)(3), 416.920c(b)(3). In addition,
where a single medical source offers multiple opinions, the ALJ
is not required to discuss each opinion individually, but
instead may address all of the source’s opinions “together in a
single analysis.” Id. §§ 404.1520c(b)(1), 416.920c(b)(1).
Moreover, while the ALJ must consider all of the relevant
evidence in the record, id. §§ 404.1520b(a)-(b), 416.920b(a)-
(b), the ALJ need not discuss evidence from nonmedical sources,
including, e.g., the claimant, the claimant’s friends and
family, educational personnel, and social welfare agency
10 personnel. Id. §§ 404.1502(e), 404.1520c(d), 416.902(j),
416.920c(d). And while the regulations require the ALJ to
discuss the relative persuasiveness of all medical source
evidence, id. §§ 404.1520c(b), 416.920c(b), the claimant’s
impairments must be established specifically by evidence from an
acceptable medical source, id. §§ 404.1521, 416.921.
“Acceptable medical sources” are limited to physicians and
psychologists, and (within their areas of specialization or
practice) to optometrists, podiatrists, audiologists, advanced
practice registered nurses, physician assistants, and speech
pathologists. Id. §§ 404.1502(a), 416.902(a). Evidence from
other medical sources, such as licensed social workers or
chiropractors, is insufficient to establish the existence or
severity of a claimant’s impairments. Id.
Finally, the ALJ need not discuss evidence that is
“inherently neither valuable nor persuasive,” including
decisions by other governmental agencies or nongovernmental
entities, findings made by state disability examiners at any
previous level of adjudication, and statements by medical
sources as to any issue reserved to the Commissioner. Id. §§
404.1520b(c), 416.920b(c).
11 I. Shaw’s Medical History
Shaw worked full time from 1991 through 2001, did not work
(or reported minimal earnings) from 2002 through 2007, worked
for part of 2008, and did not work (or reported minimal
earnings) from 2009 through 2013. Admin. Rec. at 197-209. He
worked full time from 2014 through approximately November 2016,
at which time he stopped working after suffering a knee injury
unrelated to his current impairments. Id. at 47-48. After he
recovered from his knee injury, he was unable to find work
through his alleged disability onset date of November 6, 2017.
Shaw attended physical therapy in connection with his knee
injury in January 2017. Id. at 727-745. At the conclusion of
that therapy, as of approximately January 26, 2017, Shaw and his
physicians determined that he was “ready to return to work.”
Id. at 743. As noted, he nevertheless did not return to work
thereafter.
Shaw again sought physical therapy in March 2017 (prior to
his alleged disability onset date of November 6, 2017),
complaining of pain and weakness in his left arm and shoulder.
Id. at 746-756. Shaw told his physical therapists that these
symptoms had begun 18 months previously. Id. at 752. Shaw
thereafter attended physical therapy sessions on approximately a
weekly basis, and his therapists recorded steady improvement in
12 his weakness, pain, and range of motion over the following
months. Id. at 746-809. In June 2017, Shaw reported relief
from his symptoms, and his therapists recorded that his therapy
was complete, all recovery goals having been accomplished. Id.
at 805-809.
On November 6, 2017, Shaw reported to a hospital emergency
room reporting a severe headache, a mild persistent fever, and
recent rapid weight loss. Id. at 307. He received a CT scan of
the head which revealed no abnormalities and was sent home with
pain medications. Id. at 307, 367, 390-394. On November 10,
2017, he returned to the emergency room with similar symptoms,
and while under hospital supervision suffered two generalized
tonic-clonic seizures. Id. He received an MRI, following which
he was diagnosed with posterior reversible encephalopathy
syndrome (PRES), possibly related to alcohol withdrawal
syndrome. Id. at 307, 366-367.
After the seizures, he reported that his left arm was “much
weaker and clumsy.” Id. at 361. Post-seizure examination
revealed that he retained fine motor function and a strong grip,
but that the strength of his left upper arm was reduced to
“3/5.” Id. On November 16, 2017, when he returned to the
emergency room reporting continuing headaches, examination
indicated that he had equal grip strength in both hands and full
strength in both arms. Id. at 282.
13 Shaw returned once again to physical therapy on November
20, 2017, complaining of “minimal to no use of his left arm” and
specifically advising his therapists that this symptom had
started on November 6, 2017. Id. at 810-822. Shaw once again
began attending physical therapy sessions approximately weekly,
and his therapists again recorded steady progress (“weekly
improvements”) in his recovery. Id. at 810-892. By his final
session on July 30, 2018, he presented with full range of motion
in his left arm and shoulder, and significant progress toward
return to baseline strength. Id. at 887-892. However, he still
had significant weakness in some muscle groups, and his
therapists judged that his goal of independence in performing
household care tasks and in dressing himself was only partly
achieved. Id. His therapists opined that his progress had not
been either as rapid or as complete as would have been expected
in “patients with similar complexities and comorbidities.” Id.
at 892. Shaw was discharged from physical therapy on the
recorded ground that he had stopped making appointments. Id.
Shaw underwent an additional MRI study on January 13, 2018.
Id. at 1006, 1010. That study indicated “prominent resolution”
of the PRES condition “but with some minor flair changes still
present.” Id. at 1006. A follow-up MRI on February 7, 2019,
indicated that the previously noted abnormalities were
“essentially resolved.” Id. at 1010.
14 At the February 13, 2019, hearing before the ALJ, Shaw
testified that he was able use his left arm to feed himself, to
perform “smaller chores, like a load of laundry, [or washing]
dishes by hand,” and to “write for a limited period of time,”
apparently around ten minutes. Id. at 48-49, 55. However, he
indicated that he could not lift heavy items or carry loads with
his left arm, but rather needed to use his (non-dominant) right
arm to do so. Id. at 49. He stated that he had recently taken
up crocheting, but that he could only crochet for a few rows at
a time before he needed to rest. Id. at 49-50. He stated that
he served as a secondary caregiver to his brother, who needed
assistance remembering things due to a traumatic brain injury.
Id. at 58. He testified that he was able to use his right arm
to perform light gardening tasks. Id.
Contrary to the contemporaneous clinical findings recorded
by the emergency room physicians (discussed above), Shaw
testified that immediately after his seizures his left arm had
been entirely paralyzed. Id. at 53-54. He testified that it
had only been after a lengthy period of time that he began to
regain mobility in his left arm, at which point he began
experiencing pain symptoms in his left shoulder and neck. Id.
at 54. Shaw further testified that, since his seizures, he had
experienced frequent confusion and short-term memory loss. Id.
at 54-55.
15 II. Medical Opinions Relating to Shaw’s Physical RFC
A. Treating Physician Assistant Starling
Shaw began consulting with treating physician assistant
Starling in March 2016, in connection with conditions not at
issue in this action. Id. at 963, 650-666. After Shaw’s PRES
diagnosis, Starling continued treating him for those prior
conditions and, in addition, for his reported upper left arm
weakness. Id. Shaw consulted with Starling every few months
during the period between his November 2017 PRES diagnosis and
November 29, 2018 (the date of the latest treatment note
appearing in the record).
On November 15, 2017—the date of Shaw’s first consultation
with Starling following his PRES diagnosis—she recorded that he
presented with “limited ambulation,” “irregular gait,” and
significant weakness in his left arm (rated at “maybe 2/5”).
Id. at 452. In connection with all of their subsequent
consultations, however, Starling consistently noted that Shaw
“ambulat[ed] normally” without recording any further observation
regarding his gait. Id. at 436, 439, 442, 445, 448, 650, 658,
661, 988, 991. Beginning May 9, 2018, Starling consistently
recorded that Shaw was getting regular moderate exercise through
physical therapy and walking two miles daily. Id. at 433, 653,
16 656, 660, 986, 990. Starling’s treatment notes do not otherwise
reference Shaw’s capacity to stand, sit, or walk.
On May 9, 2018, Starling observed that Shaw presented with
“normal” muscle tone and motor strength, and opined that his
limb weakness was likely secondary to spinal stenosis rather
than to PRES. Id. at 436. Starling nevertheless continued
discussing Shaw’s symptoms of muscle weakness with him over
subsequent consultations, without recording the details or
content of those discussions. Id. at 649, 652, 655, 659. In
connection with their final consultation on November 29, 2018,
Starling recorded that Shaw presented with full strength and no
sensory deficits. Id. at 1007-1009.
On January 10, 2019, Starling filled out a form provided to
her by Shaw’s counsel.4 Id. at 963-967, 980-984. On that form,
Starling indicated her opinion that Shaw could stand for two
hours at a time before needing to sit down or walk, could stand
or walk for about four hours total during an 8-hour working day,
and would need approximately six ten-minute breaks to walk
around during a workday. Id. at 965. She indicated that Shaw
would need a job that permitted shifting at will between
4 The ALJ found Starling’s January 10, 2019, medical opinion unpersuasive on both supportability and consistency grounds. Shaw now challenges the ALJ’s evaluation of Starling’s opinion.
17 standing, walking, and sitting, as well as unscheduled breaks at
least hourly. Id. She further opined that Shaw could
occasionally lift and carry ten pounds, rarely twenty pounds,
and never fifty pounds. Id. at 983. She opined that Shaw was
limited in his left (dominant) arm to gripping and twisting for
50% of a workday, to fine manipulation with his fingers for 50%
of a workday, and to reaching for 25% of a workday. Id. She
opined that he had no such limitations in his right arm. Id.
B. Examining Neurologist Dr. Rai
On January 25, 2019, examining neurologist Dr. Rai
conducted a neurological examination of Shaw. Id. at 1006-1009.
This was her sole contact with him as a patient. Id. at 975.
She found that he presented as alert and oriented, with
“[n]ormal bulk and muscle tone throughout.” Id. at 1007. After
examination, she opined that Shaw’s prognosis was “Good-Fair.”
Id. at 975. She recommended that he consider coming off
medications in the event a subsequent MRI showed his PRES
condition to be resolved, id. at 1007, as the follow-up MRI of
February 7, 2019 (discussed above), did in fact indicate, id. at
1010.
18 That same day, Dr. Rai filled out the same form as P.A.
Starling, likewise provided to her by Shaw’s counsel.5 Id. at
975-979. Unlike Starling, Dr. Rai opined that Shaw would not
require breaks to walk around during an 8-hour working day, and
would not need to shift at will between standing, walking and
sitting. Id. at 977. Dr. Rai offered no opinion that Shaw had
any limitations in his capacity to stand, walk, or sit. Id.
Dr. Rai opined to still greater limitations in Shaw’s
ability to lift and carry than Starling did, indicating that
Shaw could only rarely lift ten pounds and should never lift or
carry weight of 20 pounds or more. Id. at 978. Dr. Rai further
opined that Shaw could only rarely look up or down or turn his
head, and that he could never hold his head still. Id. Dr. Rai
opined that it was “unclear” whether Shaw had any limitation in
the percentage of a workday he could spend using his arms. Id.
C. Reviewing Consultative Physician Dr. Green
On July 17, 2018, consultative physician Dr. Green prepared
a report based on her review of Shaw’s medical record.6 Id. at
5 The ALJ found Dr. Rai’s January 25, 2019, medical opinion unpersuasive on both supportability and consistency grounds. Shaw now challenges the ALJ’s evaluation of Dr. Rai’s opinion.
6 The ALJ found Dr. Green’s July 17, 2018, medical opinion persuasive on both supportability and consistency grounds. Shaw now challenges the ALJ’s evaluation of Dr. Green’s opinion.
19 87-102. On the basis of her review, Dr. Green offered an
assessment of Shaw’s physical RFC specifically with regard to
his expected prognosis as of November 5, 2018, 12 months after
the onset of Shaw’s symptoms. Id. at 97.
In the course of discussing and summarizing the entire
longitudinal medical record, Dr. Green expressly opined that
Starling’s assessment of Shaw’s capacities was inconsistent with
her own clinical findings, in particular the results of her May
9, 2018, examination. Id. at 93. As noted, on May 9, 2018,
Starling opined that Shaw had normal muscle tone and motor
strength, and suggested that his physical examination on that
date was otherwise unremarkable. Id. at 93.
Differing from both Starling and Dr. Rai, Dr. Green opined
that Shaw could frequently lift or carry ten pounds and
occasionally lift or carry twenty pounds. Id. at 97. She
further opined that Shaw could stand or walk, with ordinary
opportunities for breaks, for more than six hours of an eight-
hour workday. Id. She also opined that Shaw was limited in his
ability to reach with his left arm, but was unlimited in his
ability to perform fine manipulation or to handle objects. Id.
at 97-98.
20 D. The ALJ’s Evaluation of the Opinions of Drs. Green and Rai and of Starling
As noted, the ALJ found that Dr. Green’s opinion was
supported by citations to relevant medical evidence and
consistent with the longitudinal evidence of record.7 Id. at 23.
The ALJ noted that Dr. Green’s assessment was as to Shaw’s
expected capacity as of a date twelve months after the alleged
disability onset date of November 6, 2017. Id. The ALJ noted
that Dr. Green supported her opinion with citations to medical
evidence, including the MRI evidence tending to indicate that
Shaw’s PRES had resolved. Id. In addition, the ALJ noted that
the medical evidence viewed as a whole tended to show fewer
deficits over time following the initial onset of symptoms. Id.
The ALJ further noted that the record established that Shaw
gradually ceased seeking medical care toward the end of the
twelve-month period. Id. Such evidence included the reported
progress Shaw made in physical therapy and his failure to
continue scheduling physical therapy appointments, id. at 810-
892, and the improvements in his MRI findings over time, id. at
307, 366-367, 1006, 1010. The ALJ concluded on supportability
7 Despite finding Dr. Green’s opinion persuasive overall, as noted the ALJ found that Shaw had greater limitations in his physical RFC than did Dr. Green. Id. at 15, 23. The ALJ found these greater limitations on the basis of Shaw’s testimony regarding his symptoms and of his primary treatment provider’s opinion that his left-arm weakness still persisted as of July 2018. Id. at 23.
21 and consistency grounds that Dr. Green’s opinion was persuasive.
The ALJ found Starling’s and Dr. Rai’s opinions less
persuasive. Id. at 23-25. As to P.A. Starling, the ALJ
evaluated her opinion as unpersuasive on both supportability and
consistency grounds. The ALJ found no indication of clinical
findings anywhere in the record to support Starling’s opinion as
to limitations on Shaw’s capacity to stand or walk, as to which
no other medical source offered a comparable opinion. Id. at
23-24. Indeed, the ALJ noted that the limitations on Shaw’s
ability to stand or walk were inconsistent with her own
treatment notes that he ambulated normally without indication of
abnormal gait (other than immediately following his seizures).
Id. at 24. He also found that her opinion as to significant
limitations in Shaw’s ability to manipulate objects and to
exhibit fine motor control was inconsistent with her own
clinical findings recorded after her last consultation with him.
Id. At that time (as noted), Starling found that Shaw presented
at full strength and without sensory deficits. Id. at 1007-
1009.
The ALJ also found Starling’s opinion to be inconsistent
with Shaw’s own self-reports of his daily activities. Id. at
24. The ALJ noted Shaw’s testimony that he was able to lift and
carry small loads of firewood with his right arm, id. at 49,
22 which he found inconsistent with the opinion that he could only
rarely lift twenty pounds, id. at 24.
As to Dr. Rai, the ALJ likewise found her opinion
unpersuasive on both supportability and consistency grounds.
Id. at 24-25. The ALJ noted that the deficits described in Dr.
Rai’s form opinion are not supported by corresponding clinical
findings in her neurological examination report, including in
particular her opinions as to the degree of weakness in Shaw’s
left arm and his near inability to move his neck. Id. at 24.
In addition, the ALJ found Dr. Rai’s opinion to be inconsistent
with Shaw’s reported activities of daily living, for the same
reasons discussed above in connection with Starling’s opinion.
Id. at 24-25.
Some of the evidence cited by the ALJ in support of her
evaluation of the relative persuasiveness of the opinions is
arguably equivocal, including perhaps in particular the ALJ’s
characterization of Shaw’s improvement in physical therapy.
However, the ALJ applied the proper legal standards in
evaluating the persuasiveness of the opinions and cited to
substantial evidence in support of her findings. As noted, the
role of the court on judicial review is strictly “limited to
determining whether the ALJ deployed the proper legal standards
and found facts upon the proper quantum of evidence.” Nguyen,
172 F.3d at 35. To the extent there are conflicts in the
23 evidence, it is for the ALJ, and not for the court, to resolve
them. See Irlanda Ortiz v. Sec'y of Health & Human Servs., 955
F.2d 765, 769 (1st Cir. 1991). Because a reasonable mind could,
on the evidence discussed by the ALJ, find that Dr. Green’s
opinion was better supported by citations to objective medical
evidence and more consistent with the medical record as a whole
than the opinions of Starling and Dr. Rai, no grounds exist for
the court to disturb the Commissioner’s final decision. See
Purdy, 887 F.3d at 13.
III. Medical Opinions Relating to Shaw’s Mental RFC
A. Consultative Psychologist Dr. Griffin
On June 27, 2018, Shaw was examined by consultative
psychologist Dr. Griffin. Admin. Rec. at 506-511. Shaw arrived
unaccompanied and on time for the examination. Id. at 506. Dr.
Griffin found Shaw cooperative with the assessment process. Id.
at 508. On July 10, 2018, Dr. Griffin prepared an evaluation
report on the basis of her examination.8 Id. at 506-511.
In her report, Dr. Griffin noted Shaw’s self-reported
symptoms of confusion and short-term memory problems since
receiving his PRES diagnosis. Id. at 507. She further noted
8 The ALJ found Dr. Griffin’s July 10, 2018, medical opinion unpersuasive on both supportability and consistency grounds. Shaw now challenges the ALJ’s evaluation of Dr. Griffin’s opinion.
24 his description of struggles with depression and post-traumatic
stress disorder for which he had never sought therapy and which
he characterized as “in check” at the time of examination. Id.
at 508.
Dr. Griffin assessed Shaw’s thought processes as “generally
logical and goal-directed,” his verbal intellectual functioning
in the normal range, and his nonverbal intellectual functioning
as marginally within the normal range but borderline impaired.
Id. at 508-509. She found that his areas of cognitive weakness
involved measures of “auditory attention/working memory and
visuospatial reasoning,” and opined that his performance in
these areas was “significantly below expectations” based on his
performance in other areas. Id. at 509.
Dr. Griffin further opined that Shaw was “generally capable
of understanding and remembering verbal material (i.e., spoken
and written instructions) but does not appear capable of
understanding and remembering visual/nonverbal material
consistently.” Id. at 510. She opined that “this may have an
adverse impact upon his ability to learn and remember
information that is visual in nature.” Id.
Dr. Griffin additionally indicated her opinion that Shaw
“d[id] not appear capable of consistently attending to work-
related tasks at th[e] time [of examination],” although she
stated that he appeared “capable of adequate processing speed”
25 for purposes of the tasks he performed in connection with her
assessment. Id. at 511.
Dr. Griffin found that Shaw was “polite and cooperative”
throughout the evaluation. Id. at 510. She expressly opined
that he would be “able to relate to/work with individuals in a
work setting without significant difficulty.” Id.
Dr. Griffin stated that prognosis as to the length of
treatment Shaw would require was “unclear at th[e] time [of
examination].” Id. She stated that her evaluation of his
cognitive symptoms had been “very limited” and that his symptoms
should be “monitored over time.” Id.
B. Treating Social Worker Wizmer
Shaw began consulting with Wizwer, a social worker and an
associate of P.A. Starling, in July 2018. Id. at 721. She saw
Shaw weekly thereafter, through at least early January 2019.
On January 3, 2019, Wizwer filled out a form provided to
her by Shaw’s counsel in this action.9 Id. at 721-726. Through
her entries on the form, Wizwer described the clinical findings
that demonstrated the severity of Shaw’s mental impairments as
9The ALJ found Wizwer’s January 3, 2019, medical opinion unpersuasive on both supportability and consistency grounds. Shaw now challenges the ALJ’s evaluation of Dr. Griffin’s opinion.
26 “ruminating thoughts, anxiety, sleep distur[b]ance, and
nightmares.” Id. at 721. She offered her opinion that Shaw had
extreme limitations in concentration, persistence, and pace,
marked limitations in his ability to understand, remember, or
apply information and his ability to interact with others, and
moderate limitations in his ability to adapt or manage himself.
Id. at 723. In stark contrast with Dr. Griffin’s assessment of
Shaw’s social skills, Wizmer opined that he had extreme
limitations in his ability to travel in unfamiliar places,
marked limitations in his ability to interact appropriately with
the general public and to use public transportation, and
moderate limitations in his ability to maintain socially
appropriate behavior. Id.
Wizmer further opined that Shaw had extreme limitations in
his ability to understand and remember detailed instructions,
marked limitations in his ability to carry out detailed
instructions, and moderate limitations in his ability to make
independent plans and to deal with the stress of semiskilled or
skilled work. Id. at 724. She opined that Shaw was likely to
be absent from work approximately four days per month due to his
impairments and/or need for treatment. Id. at 725.
Wizmer expressly opined that Shaw’s symptoms had been
present since November 6, 2017. Id.
27 C. Consultative Psychiatrist Dr. Kleinman
On July 12, 2018, consultative psychiatrist Dr. Kleinman
prepared a report based on his review of Shaw’s medical record.10
Id. at 87-102. Dr. Kleinman offered an assessment of Shaw’s
mental RFC specifically with regard to his expected prognosis as
of November 5, 2018, 12 months after the onset of Shaw’s
symptoms. Id. at 98.
Dr. Kleinman noted the results of Dr. Griffin’s
consultative examination, and observed that the record contained
indications that Shaw was “continuing to improve as expected”
from PRES. Id. at 96. He broadly agreed with Dr. Griffin that
the medical evidence established that Shaw had limitations in
understanding and memory, but disagreed with Dr. Griffin as to
the severity of those limitations. Id. at 98. Specifically, he
opined that Shaw had marked limitations in his ability to
understand and remember detailed instructions, and moderate
limitations in his ability to understand and remember short,
simple instructions. Id. at 99. In addition, he opined that
Shaw had only moderate limitations in concentration,
persistence, and pace, no social interaction limitations, and no
adaptation limitations. Id.
10The ALJ found Dr. Kleinman’s July 12, 2018, medical opinion persuasive on both supportability and consistency grounds. Shaw now challenges the ALJ’s evaluation of Dr. Kleinman’s opinion.
28 D. The ALJ’s Evaluation of the Opinions of Drs. Kleinman and Griffin and of Wizmer
As noted, the ALJ found that Dr. Kleinman’s opinion was
well supported by citations to relevant medical evidence and
consistent with the longitudinal evidence of record.11 Id. at
23. The ALJ noted that Dr. Kleinman’s assessment was of Shaw’s
expected capacity as of a date twelve months after his alleged
disability onset date of November 6, 2017, and therefore took
into account expected improvement in Shaw’s cognitive capacities
as he continued to recover from the effects of PRES. Id. The
ALJ noted that Dr. Kleinman supported his opinion with citations
to medical evidence, including evidence of unremarkable mental
status examinations. Id. In addition, the ALJ stated that Dr.
Kleinman’s opinion was consistent with the absence of any
clinical findings of record regarding significant cognitive or
memory defects. Id.
The ALJ found Dr. Griffin’s opinion less persuasive,
although, as noted, she incorporated portions of Dr. Griffin’s
opinion into her assessment of Shaw’s mental RFC. Id. at 25.
Despite finding Dr. Kleinman’s opinion persuasive 11
overall, the ALJ found more persuasive some of Dr. Griffin’s findings not incorporated into Dr. Kleinman’s opinion, id., specifically her findings regarding Shaw’s limitations in his ability to understand spoken instructions, id. at 510. As noted, the ALJ included those limitations in her assessment of Shaw’s mental RFC. Id. at 15.
29 However, she found Dr. Griffin’s opinion as to the severity of
Shaw’s memory and verbal comprehension deficits to be
inconsistent with Shaw’s score within the normal range on the
mini-mental status examination that Dr. Griffin herself
administered, id. at 508. Id. at 25. She also found that same
portion of Dr. Griffin’s opinion to be inconsistent with Shaw’s
self-reported abilities to act as a secondary care-giver to his
brother and to garden. Id. In addition, she found Dr.
Griffin’s opinion as to Shaw’s limitations in concentration,
persistence, and pace to be inconsistent with Shaw’s self-
reported ability to crochet. Id.
As to Wizmer, the ALJ found her opinion to be simply
unpersuasive. Id. The ALJ noted that Wizmer’s opinion did not
include express references to supporting medical evidence. Id.
Indeed, the ALJ found that Wizmer’s opinion was internally
inconsistent, in that Wizmer opined that Shaw’s symptoms had
been present some eight months before Shaw began consulting with
her. Id. at 25-26.
In addition, the ALJ found Wizmer’s opinion to be
inconsistent with other evidence of record. Id. In particular,
the ALJ found that Wizmer’s opinion as to limitations in Shaw’s
ability to conduct himself socio-emotionally were entirely
inconsistent with the findings of all other medical sources of
record, with all relevant clinical findings in the record, with
30 Shaw’s reports to his caregivers, and with his reported daily
activities. Id. The ALJ found that Wizmer’s opinion regarding
limitations in Shaw’s concentration, persistence, and pace and
in his ability to adapt and manage himself was inconsistent with
Shaw’s self-reported activities and with his performance on
mental status examinations of record. Id. at 26.
Again, some of the evidence cited by the ALJ in support of
her evaluation of the relative persuasiveness of the opinions is
arguably equivocal. Nevertheless, it is clear that the ALJ
applied the proper legal standards to evaluating the
persuasiveness of the opinions and cited to substantial evidence
in support of her findings. Because a reasonable mind could, on
the evidence discussed by the ALJ, find that Dr. Kleinman’s
opinion was better supported by citations to objective medical
evidence and more consistent with the medical record as a whole
than the opinions of Dr. Griffin and Wizmer, no grounds exist
for the court to disturb the Commissioner’s final decision. See
CONCLUSION
For the foregoing reasons, Shaw’s motion to reverse (doc.
no. 7) is denied, and the Commissioner’s motion to affirm (doc.
31 no. 9) is granted. The clerk of the court shall enter judgment
in accordance with this order and close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
June 10, 2020
cc: Counsel of Record