UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Lourdes S. Conde
v. Civil No. 15-cv-246-JD Opinion NO. 2016 DNH 018 Carolyn W. Colvin, Acting Commissioner, Social Security Administration
O R D E R
Lourdes S. Conde seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Acting Commissioner of
the Social Security Administration, denying her application for
disability benefits and supplemental security income. In
support, Conde argues that the Administrative Law Judge (“ALJ”)
made factual and legal errors in finding that she was not
disabled. The Acting Commissioner moves to affirm the decision.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the 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. § 405(g). “Substantial evidence is more than a
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Astralis
Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev., 620 F.3d
62, 66 (1st Cir. 2010).
Background
Conde was forty-three years old in August of 2010 when she
alleges her disability began. She completed the seventh grade
in school. She previously worked as an assembler in an
industrial laundry company.
The medical records summarized in the parties’ factual
statement begin in July of 2011 when Conde discussed her newly
diagnosed diabetes with her treating physician, Dr. Karen
Shannon. Thereafter, she had two visits to emergency rooms, in
December of 2011 and May of 2012 for cardiology related
symptoms. She also continued treatment for diabetes.
At the end of April of 2012, Conde went to Elliott Hospital
because she had taken ten tablets of sleeping medication. She
said she was thinking of suicide. She was discharged three days
later with a Global Assessment of Functioning Score of 50. She
then received mental health treatment at The Mental Health
Center of Greater Manchester. In June she started a new
2 medication but did not have any improvement in her anxiety or
poor sleep. By the end of June, she was functioning well.
Conde was assessed at The Mental Health Center on July 16,
2012. She reported agitation, angry outbursts, anxiety, poor
concentration, depressed mood, low energy, poor appetite, and
suicidal ideation and behavior. The assessment found, however,
that her general appearance, interview behavior, thought, motor
activity, speech, mood, affect, and intellect were all normal.
At subsequent treatment sessions, Lourdes continued to report
agitation, angry outbursts, depressed mood, decreased appetite,
poor concentration, insomnia, financial stress, and high stress
with her son.
Dr. E. Hurst completed a form for the New Hampshire
Department of Health and Human Services in July of 2012.1 Dr.
Hurst recounted Conde’s report of diabetes, depression, angry
outbursts, and an inability to deal with stress. During the
interview, Dr. Hurst found that Conde was cooperative and
pleasant, was not in acute distress, and had non-pressured
speech but appeared to be somewhat depressed with a blunt and
congruent affect. Conde was alert, oriented, and attentive.
Dr. Hurst concluded that Conde had a moderate degree of
functional loss in daily activities and social function,
1 The joint factual statement erroneously dates the form as having been completed in July of 2010.
3 frequent functional loss in task performance, and repeated
functional loss in stress reaction. With treatment, Dr. Hurst
thought, Conde would be moderately limited and would not be able
to work for four years.
Psychologist Jessica Stern conducted a mental health
evaluation of Conde in September of 2012. Conde reported many
problems with her son and symptoms that included constant
crying, anxiety, insomnia, poor appetite, fatigue, and panic
attack feelings. Conde also reported that she had vertigo.
During the interview, Conde was polite and cooperative but
cried throughout. Dr. Stern found that Conde had some
difficulty remembering verbal instructions but no difficulty
following written instructions and that Conde would not have
trouble with attendance or getting along with others in a work
environment. Dr. Stern also concluded that if Conde could set
boundaries for her son, she would do better emotionally. Based
on a review of the record, Dr. Laura Landerman, a psychologist,
found in September of 2012 that Conde was able to understand,
recall, and carry out short and simple instructions and could
sustain concentration and attention for two hours on routine
tasks at an acceptable pace in a work day.
In October of 2012, Lourdes was treated at Dartmouth-
Hitchcock Hospital for acute nausea and vomiting. A CT scan of
her head showed evidence of a past infract, a stroke, involving
4 the left medial occipital lobe. As a result of the stroke,
Lourdes had a vision deficit in her right eye.
On November 4, 2012, Conde again attempted suicide by
taking an over dose of medication. During her meeting for
medication management the next week, Conde discussed the ongoing
problems with her son and said she took the medication just so
that she could sleep.
She was treated in December of 2012 for vertigo, which had
resolved by March of 2013. In January of 2013, she reported to
her mental health nurse practitioner that she was doing well and
that her only problem was her son. Conde discussed concerns
about her grandson, said that she was waiting for social
security benefits, and declined to consider employment. Her
reports during therapy over the next months were similar. In
May of 2013, her diabetes was well controlled. By July of 2013,
her attention and concentration were normal.
A hearing on her social security application was held on
November 4, 2013. Conde was represented by an attorney and
testified. Conde described her family issues and said that her
unsafe neighborhood kept her from feeling calm. She also
described vision problems that she said caused problems with
concentration and testified that anxiety interfered with her
ability to complete tasks, that she did not sleep well, and that
she had vertigo one or two times per week. The ALJ found that
5 Conde had physical and mental impairments but retained the
capacity to do light work, with certain postural limitations,
and was able to understand and carry out short and simple
instructions. Based on the Medical-Vocational Guidelines, the
ALJ found that Conde was not disabled. When the Appeals Council
denied Conde’s request for review, the decision became the
decision of the Acting Commissioner.
Discussion
In support of her motion to reverse the Acting
Commissioner’s decision, Conde contends that the ALJ made a
variety of errors.2 She argues that the ALJ erred in finding
that she did not have a significant impairment due to an
anxiety-related disorder and that she did not meet the
requirements of Listing 11.04. She also argues that the ALJ
should have given more weight to Dr. Hurst’s opinion, that the
ALJ misunderstood Dr. Stern’s opinion, and that the ALJ erred in
assessing her credibility. Further, she contends that the ALJ
2 Although Conde is represented by counsel, the motion and memorandum do not include a statement of issues, and the memorandum is not organized by headings stating the issues raised. Instead, Conde presents an undifferentiated “Argument” with no citation to legal authority other than Social Security Ruling 96-7p. As a result, it is difficult to ascertain clearly what parts of the decision Conde intends to challenge and what grounds would support her argument. The issues listed here are the court’s best interpretation of Conde’s motion and memorandum.
6 erred in finding that she had the residual functional capacity
to do light work, in failing to find her disabled under Medical-
Vocational Guideline 201.09, and in failing to call a vocational
expert to testify at the hearing.
In determining whether a claimant is disabled for purposes
of social security benefits, the ALJ follows a five-step
sequential analysis. 20 C.F.R. §§ 404.1520 and 416.920.3 The
claimant bears the burden through the first four steps of
proving that her impairments preclude her from working. Freeman
v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At the fifth
step, the Acting Commissioner has the burden of showing that the
claimant is employable. Heggarty v. Sullivan, 947 F.2d 990, 995
(1st Cir. 1991).
A. Severe Impairments
After determining that a claimant is not engaged in
substantial gainful activity, the ALJ assesses the severity of
the claimant’s impairments. § 404.1520(a)(4). An impairment is
severe, for purposes of the Step Two finding, if the impairment
is “medically determinable” and the impairment alone or in
Because the pertinent regulations governing disability 3
insurance benefits at 20 C.F.R. Part 404 are the same as the pertinent regulations governing supplemental security income at 20 C.F.R. § 416, the court will cite only Part 404 regulations. See Reagan v. Sec’y of Health & Human Servs., 877 F.2d 123, 124 (1st Cir. 1989).
7 combination with other impairments “significantly limits [the
claimant’s] ability to do basic work activities.”
§ 404.1520(a)(ii) & (c). The claimant bears the burden of
showing that she has a medically determinable severe impairment.
Ramos v. Barnhart, 60 F. App’x 334, 335 (1st Cir. 2003). If an
ALJ erroneously excludes an impairment at Step Two, that
omission is harmless as long as the ALJ found at least one
severe impairment and considered all impairments at Step Four
when assessing the claimant’s residual functional capacity. See
Andrade v. Colvin, 2015 WL 5749446, at *6 (D. Mass. Sept. 30,
2015) (citing cases).
In this case, at Step Two, the ALJ found Conde had the
following severe impairments: “essential hypertension, diabetes
mellitus, a vestibular system disorder/vertigo, major depressive
disorder, and late effects of a cerebrovascular accident in
January of 2010, including an organic mental disorder/cognitive
disorder.” The ALJ also noted that the record showed that Conde
complained of symptoms of anxiety but found that “there is no
substantial medical evidence in the record establishing the
claimant has been formally diagnosed by [an] acceptable medical
source with any anxiety-related disorder, or that the claimant
has significant work-related limitations because of anxiety.”
The ALJ found that because the record did not show that Conde
8 was more than minimally limited by anxiety in her ability to do
work, that was not a severe impairment.
Conde disputes that finding, citing several pages from her
records produced by The Mental Health Center. The cited records
show that Conde complained of anxiety but was diagnosed with a
depressive disorder. Contrary to Conde’s argument, Conde’s
complaints of symptoms, which were recorded by health care
providers, do not provide objective medical evidence of severe
impairment. § 404.1529(a) & (b); see also Rodriguez Pagan v.
Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987).
Further, even if the ALJ erred in finding no severe
impairment due to anxiety, that error is harmless because the
ALJ considered all of her symptoms at Step Four. Specifically,
the ALJ considered Conde’s allegations of impaired memory,
trouble concentrating, impaired attention, difficulty handling
stress, and difficulty getting restful sleep because of her
“mental health deficits.” Conde, who bears the burden at Step
Two and Step Four, has not shown that anxiety caused greater
impairment than the ALJ considered.
B. Listing
At Step Three of the sequential analysis, the ALJ assesses
whether the claimant’s impairments meet or equal the criteria
for a section provided in Appendix 1, Subpart P of 20 C.F.R.
9 Part 404, which are known as the Listings. The Listings “are
descriptions of various physical and mental illnesses and
abnormalities, much of which are categorized by the body system
they affect.” Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990).
“For a claimant to show that his impairment matches a listing,
it must meet all the criteria for the one most similar listed
impairment.” Id. at 530. To show that her impairments equal a
listed impairment, a claimant “must present medical findings
equal in severity to all the criteria for the one most similar
listed impairment.” Id. at 531.
Conde contends that the ALJ erred in failing to find that
she met the criteria for Listing 11.04. Listing 11.04 provides
as follows:
11.04 Central nervous system vascular accident. With one of the following more than 3 months post-vascular accident: A. Sensory or motor aphasia resulting in ineffective speech or communication; or B. Significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station (see 11.00C).4
4 Listing 11.00C provides as follows: Persistent disorganization of motor function in the form of paresis or paralysis, tremor or other involuntary movements, ataxia and sensory disturbances (any or all of which may be due to cerebral, cerebellar, brain stem, spinal cord, or peripheral nerve dysfunction) which occur singly or in various combinations, frequently provides the sole or partial basis for decision in cases of neurological impairment. The assessment of impairment depends on the degree of interference with locomotion and/or interference with the use of fingers, hands, and arms.
10 In support, Conde states that she “suffered and continues to
suffer ineffective speech or communication skills.” She cites
no record evidence to support that assertion, and the record,
along with Conde’s testimony at the hearing, contradict her.5
Therefore, the ALJ did not err in finding that Conde did not
meet the criteria for Listing 11.04.6
C. Medical Opinions
An ALJ is required to consider the medical opinions along
with all other relevant evidence in a claimant’s record. 20
C.F.R. § 404.1527(b). Medical opinions are evaluated based on
the nature of the medical source’s relationship with the
claimant, the consistency of the opinion with the other record
evidence, the medical source’s specialty, and other factors that
may be brought to the ALJ’s attention. § 404.1527(c). The ALJ
may rely on opinions of state agency consultant physicians under
the same analysis as that applied to opinions of treating or
examining medical sources. § 404.1527(e); Ormon v. Astrue, 497
F. App’x 81, 84 (1st Cir. 2012); Smallidge v. Colvin, 2014 WL
799537, at *5 (D.N.H. Feb. 28, 2014); see also Titles II and
To the extent Conde intended to argue that her alleged 5
difficulties with concentration and maintaining persistence and pace would support a finding that she met the requirements of Listing 11.04, she is mistaken.
6 Conde does not contend that she “equaled” the criteria.
11 XVI: Consideration of Administrative Findings of Fact by State
Agency Medical and Psychological Consultants and Other Program
Physicians, SSR 96-6p, 1996 WL 374180 (July 2, 1996). Medical
opinions based on the claimant’s subjective reports, rather than
objective medical findings, may be entitled to less weight.
Pagan Rodriguez, 819 F.2d at 3.
The ALJ gave great weight to the opinions of state agency
consultants, Dr. Jaffe and Dr. Landerman; gave significant
weight to the opinion of Dr. Stern, who examined Conde as a
consultant; and gave little weight to the opinion of Dr. Hurst,
who examined Conde for New Hampshire’s Aid to the Permanently
and Totally Disabled program (“APTD program”). Conde challenges
the ALJ’s assessment of Dr. Hurst’s opinion and argues that the
ALJ misunderstood the import of Dr. Stern’s opinion.
The ALJ adequately explained her reasons for discounting
Dr. Hurst’s opinion.7 She noted that Dr. Hurst’s opinion
addressed the standard applicable to the ATPD program, not the
different standard used for social security disability
determinations. She then stated that Dr. Hurst’s opinion about
Conde’s functionality was based on Conde’s report of her
subjective symptoms rather than on his own objective findings.
Further, the ALJ found that Dr. Hurst’s opinion was inconsistent
7 Dr. Hurst examined Conde but was not a treating source.
12 with Dr. Landerman’s opinion and Conde’s reports about her
activities and ability to function. Conde has not shown that
the ALJ failed to give Dr. Hurst’s opinion appropriate weight.
Conde also contends that the ALJ erred in failing to
consider Dr. Stern’s “findings” about her symptoms. The
symptoms Conde cites are her subjective reports to Dr. Stern,
not objective medical findings made by Dr. Stern. In contrast,
Dr. Stern found that Conde would be able maintain schedules,
attendance, and relationships at work in an appropriate job.
Therefore, no error occurred.
D. Credibility
It is the responsibility of the ALJ to determine whether
the claimant’s description of her symptoms is credible. Irlanda
Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st
Cir. 1991). In making that determination, the ALJ must first
determine whether the claimant has an impairment that could
reasonably be expected to produce the symptoms described, and,
if so, whether the record evidence supports the claimant’s
statements. Policy Interpretation Ruling Titles II and XVI:
Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual’s Statements, SSR 96-7p, 1996 WL
374186, at *4 (July 2, 1996); see also Brown v. Colvin, 2014 WL
6670637, at *10 (D.N.H. Nov. 24, 2014). The ALJ then considers
13 the objective medical evidence in the record, the claimant’s
statements about the intensity and persistence of symptoms, and
other evidence, such as the claimant’s daily activities,
precipitating and aggravating factors, treatment, and
medications. 20 C.F.R. § 404.1529(c). “It is the ALJ’s
prerogative to resolve conflicting evidence, and [the court]
must affirm such a determination, even if the record could
justify a different conclusion so long as it is supported by
substantial evidence.” Vazquez-Rosario v. Barnhart, 149 F.
App’s 8, 10 (1st Cir. 2005) (internal quotation marks omitted);
see also Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d
218, 222 (1st Cir. 1981)
Conde appears to charge that the ALJ made only a conclusory
statement about her lack of credibility. She is mistaken. The
ALJ provided a thorough analysis to support her conclusion that
Conde’s “statements concerning the intensity, persistence and
limiting effects of [her] symptoms are not entirely credible.”
See Admin. Rec. 23-25. Therefore, Conde has not shown that the
ALJ erred in assessing her credibility.
E. Residual Functional Capacity
A residual functional capacity assessment determines the
most a person can do in a work setting despite her limitations
caused by impairments. 20 C.F.R. § 404.1545(a)(1). The Acting
14 Commissioner’s residual functional capacity assessment is
reviewed to determine whether it is supported by substantial
evidence. Irlanda Ortiz v. Sec’y of Health & Human Servs., 955
F.2d 765, 769 (1st Cir. 1991); Pacensa v. Astrue, 848 F. Supp.
2d 80, 87 (D. Mass. 2012).
The ALJ found that Conde retained the functional capacity
to do light work with certain postural limitations and with
short and simple instructions. Conde states that the ALJ’s
finding is “inappropriate” but does not provide any developed
argument to support her theory. The ALJ’s assessment is well
supported by the record evidence, as is explained in the
decision.
F. Disability Determination
The ALJ relied on the Medical-Vocational Guidelines
(“Grid”), 20 C.F.R. § 404, Subpart P, Appendix 2, Rule 202.16 to
find that Conde was not disabled. At the fifth step of the
sequential analysis, the Acting Commissioner bears the burden of
proving that the claimant is employable. Heggarty v. Sullivan,
947 F.2d 990, 995 (1st Cir. 1991). That burden may be satisfied
by using the Grid as long as the claimant’s non-exertional
impairments do not significantly erode the occupational base at
the identified exertional level. Nguyen, 172 F.3d at 36; Ortiz
15 v. Sec’y of Health & Human Servs., 890 F.2d 520, 524 (1st Cir.
1989).
Conde argues that the ALJ erred in failing to find that she
was disabled under Grid Rule 201.09. Rule 201.09 applies to
claimants who are “[c]losely approaching advanced age.” A
claimant must be between 50 and 54 years old to be “closely
approaching advanced age.” 20 C.F.R. § 404.1563(d). Because
Conde was only 47 at the time of the ALJ’s decision, she was a
“younger person” and did not qualify for Rule 201.09.8
§ 404.1563(c).
Conde also argues that the ALJ erred in failing to have a
vocational expert testify. The ALJ, however, could properly
rely on the Grid as a framework for decision-making as long as
Conde’s mental impairments did not significantly erode the
occupational base for light and sedentary work. The ALJ
explained in the decision why Conde’s mental health impairments
would have little or no effect on the occupational base for
light unskilled work. Conde does not challenge the ALJ’s
analysis or point to any errors that would require reversal.
8 Conde states at the beginning of her memorandum in support of her motion to reverse that she was a “younger individual” within the meaning of § 404.1563.
16 Conclusion
For the foregoing reasons, the claimant’s motion to reverse
and remand (document no. 11) is denied. The Acting
Commissioner’s motion to affirm (document no. 14) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
January 25, 2016
cc: John A. Wolkowski, Esq. Terry L. Ollila, Esq.