UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Daniel Richard Otero, Sr.
v. Civil No. 14-cv-206-PB Opinion No. 2015 DNH 161 Carolyn Colvin, Acting Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Daniel Richard Otero, Sr. appeals the Commissioner’s denial
of his applications for a period of disability and disability
insurance benefits. He argues that the Administrative Law Judge
(the “ALJ”) omitted a material nonexertional limitation from his
residual functional capacity (“RFC”) finding and impermissibly
made alternative findings at both step four and step five of the
Social Security Administration’s sequential evaluation process.
For the reasons I explain below, I deny Otero’s request for
remand and affirm the decision of the Commissioner.
I. BACKGROUND
Pursuant to this Court’s Local Rule 9.1, the parties have
submitted a statement of stipulated facts (Doc. No. 14). See LR
9.1. Because this statement is part of the Court’s record, I need not recount it here. Facts relevant to the disposition of
this matter are discussed as necessary below.
II. STANDARD OF REVIEW
42 U.S.C. § 405(g) authorizes me 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. My review “is limited to
determining whether the ALJ 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).
Findings of fact made by the ALJ are accorded deference as long
as they are supported by substantial evidence. Id. Substantial
evidence to support factual findings 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, factual findings are
conclusive even if the record “arguably could support a
different conclusion.” Id. at 770. Findings are not
conclusive, however, if they are derived by “ignoring evidence,
misapplying the law, or judging matters entrusted to experts.”
2 Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
The ALJ is responsible for determining 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
Otero is a 37-year-old man who previously worked as a
construction laborer and painter. On March 11, 2010, he filed a
claim for disability benefits alleging disability on the basis
of both physical and mental conditions, including right elbow
tendinitis, bipolar disorder, depression, and anxiety. See Tr.
at 410. On September 28, 2012, the ALJ denied his claim.
Otero now seeks remand of his claim for two reasons.
First, he argues that the ALJ erred by omitting his alleged
“severe limitations in social functioning,” Doc. No. 9-1 at 8,
from his RFC determination. Second, he argues that the ALJ made
reversible legal error by making alternative findings of
disability at both step four and step five of the sequential
evaluation process. I address each argument in turn.
A. Residual Functional Capacity
Before proceeding to step four of the sequential evaluation
process, the ALJ found that Otero has the following RFC:
3 [Otero] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). He is unable to climb ladders, and is able to occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. He must avoid temperature extremes, vibrations, and unprotected heights.
Tr. at 328. Thus, the ALJ found that Otero is constrained only
by exertional, and not by any nonexertional, limitations. The
ALJ then concluded at step four that Otero could return to his
previous work with this RFC. Based on a vocational expert’s
testimony, the ALJ also concluded at step five that Otero could
find other work in the national economy with his RFC.
Consequently, the ALJ found Otero not disabled and denied his
claim accordingly.
Otero contends that, in light of his alleged mental
illness, the ALJ’s RFC finding should have included an
additional nonexertional limitation recognizing that Otero
suffers from “severe limitations in social functioning,” Doc.
No. 9-1 at 8.1 The ALJ’s omission of this material nonexertional
limitation, Otero argues, was erroneous for three reasons: (1)
because the ALJ improperly discounted certain objective evidence
1 Otero’s briefing does not clearly identify the specific nonexertional limitation that he alleges. Construing his pleadings as generously as possible, I understand him to argue that his alleged mental illness causes him to suffer from “severe limitations in social functioning,” Doc. No. 9-1 at 8. As my analysis makes clear, however, Otero’s challenge against the ALJ’s RFC finding would fail regardless of the specific nonexertional limitation Otero claims his asserted mental illness to impose.
4 in the record that favors his claim; (2) because the ALJ
assigned insufficient weight to the opinion of Dr. Almos Nagy,
Otero’s treating physician; and (3) because the ALJ improperly
discredited Otero’s own subjective complaints of mental illness
symptoms. None of these arguments, however, establishes any
error made by the ALJ in reaching his RFC determination.
1. Otero’s Treatment Records
Otero argues that “the evidence in the administrative
record, at the very least, support[s] a conclusion he had severe
limitations in social functioning.” Doc. No. 9-1 at 8.
Specifically, he points to his behavioral health treatment
records from a number of mental health treatment facilities as
objective evidence that supports a finding of a nonexertional
limitation based on mental illness.2 These records suggest that
2 Otero also points to the hearing testimony of Dr. Gerald Koocher, a non-treating physician who reviewed Otero’s records, as objective evidence that supports his claim. At most, however, Dr. Koocher suggested only that Otero might have difficulty in “managing his anger on the job.” Tr. at 382. Otherwise, Dr. Koocher testified that Otero’s attention span, concentration, persistence, pace, and ability to follow “even relatively complex instructions” were not impaired; that Otero’s ability to manage the activities of daily living were not constrained by mental limitation; and that Otero could “engage in reasonable interpersonal relationships” aside from “temper blow up[s].” Tr. at 381-82. Nothing in Dr. Koocher’s testimony, therefore, definitively identifies a particular mental limitation that would restrict Otero’s ability to function within a workplace. To the contrary, and considering Dr. Koocher’s testimony in its entirety, it was reasonable for the ALJ to construe his testimony as evidence that Otero suffers from no such limitation. See Tr. at 377-88.
5 Otero suffers from chronic mental disorders, including anxiety,
depression, borderline personality disorder, and posttraumatic
stress disorder. The ALJ, Otero contends, erred by discounting
this objective evidence and instead finding that he has no
nonexertional limitations.
Otero’s argument, however, misconstrues the standard of
review that applies here. Under that standard, I “must affirm
the [Commissioner’s] resolution, even if the record arguably
could justify a different conclusion, so long as it is supported
by substantial evidence.” Rodriguez Pagan v. Sec’y of Health &
Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per curiam). Here,
the ALJ clearly addressed and considered the behavioral health
treatment records to which Otero points. See Tr. at 326-35.
But based on other evidence in the record, the ALJ concluded
that Otero has no nonexertional limitation caused by mental
illness despite the findings contained in those treatment
records. Tr. at 329. Substantial evidence in the record amply
supports this finding, including:
In March 2011, one doctor noted that despite Otero’s numerous self-reported symptoms, Otero was observed to have normal flow of thought, mood and affect, judgment, and intellect, with only mildly poor insight (Tr. at 989);
In December 2010, a mental health counselor described Otero as presenting in a “controlled fashion” (Tr. at 977);
6 At the hearing on July 9, 2012, Dr. Gerald Koocher, a non-treating physician who reviewed Otero’s records, opined that Otero’s alleged depression “appears to have improved significantly,” that his alleged anxiety “is not documented in his treatment records,” and that the record did not demonstrate that Otero suffered from a personality disorder (Tr. at 383);
At the hearing on March 2, 2012, the ALJ noted that Otero presented as “verbal and articulate” and was able to “respond appropriately to questions” (Tr. at 327, 365).
This material demonstrates that substantial evidence in the
record supports the ALJ’s finding that Otero suffers from no
nonexertional limitation caused by mental illness. Thus, I am
not free to disturb that finding on appeal. See Tsarelka v.
Sec’y of Health & Human Servs., 842 F.2d 529, 534-35 (1st Cir.
1988). Even if the behavioral health treatment records to which
Otero points conflict with the evidence that supports the ALJ’s
finding, it falls within the ALJ’s province to resolve
inconsistencies in the record. See id. at 534 (“Resolution of
conflicts in the evidence is for the [Commissioner].”). That is
what the ALJ did here by addressing Otero’s behavioral health
treatment records but finding them contradicted by the rest of
the record. See Tr. 329-33. The behavioral health treatment
records, therefore, do not establish that the ALJ erred by
finding that Otero does not have a nonexertional limitation
caused by mental illness.
7 2. Weight Assigned to Dr. Nagy
Otero began to seek mental health treatment from Dr. Almos
Nagy in March 2011. Tr. at 1001. He visited with him nine
times between then and the ALJ’s September 28, 2012 denial of
his claim. In the mental RFC questionnaire for Otero, Dr. Nagy
opined that Otero had numerous mental impairments, including
moderate limitations in his ability to remember, understand, and
carry out detailed instructions, his ability to interact
appropriately with the public, and to maintain socially
appropriate behavior. Tr. at 1039. Dr. Nagy also co-signed a
report that diagnosed Otero with posttraumatic stress disorder
and a borderline personality disorder. Tr. at 1232. In
determining that Otero does not suffer from any nonexertional
limitation caused by mental illness, however, the ALJ assigned
only “little weight” to Dr. Nagy’s opinion. Tr. at 333. Otero
now contends that the ALJ was required to give more weight to
Dr. Nagy’s opinion.
Although an ALJ may not ignore evidence or judge matters
entrusted to experts, an ALJ can exercise discretion to decide
how much weight to extend to evidence in the record. See
Rodriguez Pagan, 819 F.2d at 3. This discretion extends even to
the opinions of treating physicians, which “are not entitled to
greater weight merely because they were treating physicians.”
Id. This is particularly true when the opinion of the treating
8 physician is merely conclusory. See Tremblay v. Sec’y of Health
& Human Servs., 676 F.2d 11, 13 (1st Cir. 1982) (per curiam).
Here, the ALJ addressed and considered Dr. Nagy’s opinion
at length. See Tr. at 332-33. Based on other evidence in the
record, however, he decided to place little weight on Dr. Nagy’s
opinion and provided a reasoned explanation for this decision.
Tr. at 333. In particular, the ALJ suspected that, on at least
one occasion, Dr. Nagy “simply signed what the claimant filled
out.” Tr. at 333. He also noted that Dr. Koocher, who reviewed
Otero’s treatment records, opined that nothing in the narratives
that Dr. Nagy recorded in those records supported his findings
that Otero suffered from multiple limitations related to mental
health. Tr. at 332. Dr. Koocher also explained at length how
Dr. Nagy’s records throughout his treatment of Otero
contradicted each other and reached inconsistent and unsupported
findings regarding Otero’s mental health. See Tr. at 378-82.
In short, the ALJ addressed and considered Dr. Nagy’s opinion
but found that it was entitled to only little weight given the
rest of the evidence in the record. In doing so, the ALJ acted
permissibly and well within his discretion. See Sitar v.
Schweiker, 671 F.2d 19, 22 (1st Cir. 1982) (finding that a
treating physician’s “conclusory statements . . . could
reasonably have been rejected by the ALJ in the face of other
9 evidence”). Otero, therefore, points to no legal error caused
by the ALJ’s assignment of little weight to Dr. Nagy’s opinion.
3. Otero’s Subjective Complaints of Mental Illness
During the proceedings below, Otero made multiple
subjective complaints of his alleged mental illness. First, in
his May 2010 function report, he claimed that he “found it very
difficult to secure and maintain work[;] get along with others
and be in public.” Tr. at 618. Next, in his testimony at
hearings that the ALJ held on March 2, 2012 and July 2, 2012, he
testified that he suffered from mental health complications
involving anger and anxiety. Tr. at 349-53, 372-76. In
reaching his determination that Otero did not suffer from any
nonexertional limitation, however, the ALJ found that these
subjective complaints of mental illness were not credible.
Otero now argues that this finding was improper.
It is the ALJ's responsibility to determine whether a
claimant's statements about his symptoms are credible. See 20
C.F.R. § 404.1529(c)(3). Social Security Ruling (“SSR”) 96-7p
prescribes a two-step process that an ALJ must follow to
evaluate the veracity of a claimant’s subjective complaints.
SSR 96–7p, 1996 WL 374186, at *2. First, the ALJ must consider
whether the claimant is suffering from “an underlying medically
determinable physical or mental impairment[] . . . that could
reasonably be expected to produce the individual's pain or other
10 symptoms.” Id. Second, the ALJ must determine whether the
claimant's statements about his symptoms are substantiated by
objective medical evidence. Id. If not, the ALJ must consider
other relevant information to weigh the credibility of his
statements. Id.; see Guziewicz v. Astrue, 2011 DNH 010, 14.
The ALJ's credibility assessment “is entitled to deference,
especially when supported by specific findings.” Frustaglia v.
Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir.
1987). 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.
Here, the ALJ found Otero’s subjective statements about the
severity of his symptoms to be inconsistent with objective
evidence in the record. See Tr. at 329-33. In reaching this
finding, the ALJ considered the objective evidence in the record
at length. See Tr. at 330-35. Moreover, substantial evidence
in the record supports the ALJ’s determination that Otero’s
alleged mental health symptoms were not as severe as Otero
claimed. The ALJ observed, for instance, that:
The record indicated that Otero had strong ties to his family (Tr. at 327, 331);
Otero functioned well enough to permit him to meet his girlfriend and get married during the period of his alleged disability (Tr. at 327, 331);
11 The record indicated that Otero was successful in group therapy sessions (Tr. at 327);
The record did not reflect any problems that Otero has in interacting with his health providers (Tr. at 327); and
The record indicated that Otero’s only area of difficulty was his relationship with his ex-wife, which Otero was increasingly able to tolerate (Tr. at 327, 331-32).
These facts in the record provide substantial evidence to
validate the ALJ’s finding that Otero’s subjective complaints of
severe mental illness were not credible. After reviewing this
evidence, the ALJ concluded that “[t]he evidence of record
reveals that the course of treatment and objective medical
findings are not consistent with [Otero]’s alleged severity of
symptoms and limitations.” Tr. at 329. That conclusion falls
squarely within the ALJ’s discretion. See Frustaglia, 829 F.2d
at 195.
Otero maintains, however, that certain objective evidence
in the record, including his behavioral treatment records and
the notes of Dr. Nagy, his treating psychologist, substantiate
his subjective complaints, precluding the ALJ from discrediting
them. But I have already concluded that the ALJ permissibly
discounted this evidence, finding it contradicted by the rest of
12 the record.3 That Otero’s subjective complaints may have been
corroborated by objective evidence that the ALJ permissibly
discounted does not, of course, make those complaints any more
credible or otherwise obligate the ALJ to accept them. See
Frustaglia, 829 F.2d at 194 n.1 (“Where there are
inconsistencies in the record, the ALJ may discount subjective
complaints of pain.”). And in any event, I am not free to
disturb the ALJ’s credibility finding if it is supported by
substantial evidence “even if the record arguably could justify
a different conclusion.” Rodriguez Pagan, 819 F.2d at 3.
Otero’s argument essentially urges me to adopt a different
interpretation of the record from that of the ALJ. But because
substantial evidence supports the ALJ’s decision to place little
credibility with Otero’s subjective complaints, Otero’s argument
is a nonstarter. See Irlanda Ortiz v. Sec’y of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991). Thus, Otero points
to no error in the ALJ’s finding that Otero’s subjective
complaints were not credible.
3 Otero also points to his GAF scores as objective evidence supporting his credibility. He claims that the ALJ “only consider[ed] [his] GAF scores of 64 and 65” but failed to consider his low GAF scores of 40, 45, and 50. Doc. No. 16 at 2. In fact, however, the ALJ did consider all of Otero’s GAF scores contained in the record but permissibly chose to give “each of these very limited weight.” See Tr. at 333. Although the ALJ’s decision enumerates only some of these scores, nothing in the decision suggests that the ALJ relied on them in reaching his conclusions. See Tr. at 331.
13 For these reasons, I conclude that substantial evidence
supports the ALJ’s RFC finding, including his omission of any
nonexertional limitation caused by mental illness.
B. The ALJ’s Alternative Step Four and Step Five Findings
Next, Otero challenges the ALJ’s step four and step five
findings, including the ALJ’s decision to make alternative
findings at each step of the sequential evaluation process. At
step four, the ALJ concluded that Otero was not disabled because
his RFC did not preclude him from returning to his previous work
as a “painter/supervisor.” Tr. at 335. After making this
finding, however, the ALJ proceeded to make an alternative
finding at step five that Otero was not disabled because
sufficient jobs existed in the national economy that someone
with Otero’s RFC could perform. Tr. at 336. Otero argues that
both findings are unsupported by substantial evidence. He also
argues that the ALJ made reversible legal error by making an
alternative step five finding after finding Otero not disabled
at step four.
As an initial matter, I reject Otero’s contention that the
ALJ’s step five finding of no disability lacks substantial
evidence. Otero argues that the step five finding is defective
because the RFC that the ALJ posed to the vocational expert did
not include Otero’s asserted nonexertional limitations. But as
I have already explained, the ALJ’s RFC finding was proper and
14 supported by substantial evidence, and the ALJ made no legal
error by excluding any nonexertional limitation caused by mental
illness from that finding. As Otero recognizes, the vocational
expert testified that a hypothetical person with that RFC could
perform jobs existing in sufficient numbers in the national
economy. A vocational expert’s testimony provides substantial
evidence for a step five determination when the expert’s opinion
is based on a hypothetical that reflects an RFC finding
supported by substantial evidence. Perez v. Sec’y of Health &
Human Servs., 958 F.2d 445, 447 (1st Cir. 1991) (holding that
when “hypothetical [is] supported by substantial evidence . . .
the ALJ [is] entitled to rely on the vocational expert’s
testimony”). The vocational expert’s testimony during the
proceedings below, therefore, provides substantial evidence that
validates the ALJ’s finding of no disability at step five.
Because substantial evidence supports the ALJ’s step five
determination that Otero is not disabled, Otero’s objection to
the ALJ’s antecedent step four determination is material only if
the ALJ committed reversible legal error by making alternative
findings at step four and step five. Otero presses this
argument, pointing to the language of 20 C.F.R. § 416.920(a)(4),
which provides that if the Social Security Administration “can
find that you are disabled or not disabled at a step, we make
our determination or decision and we do not go on to the next
15 step.” 20 C.F.R. § 416.920(a)(4). Otero argues that this
regulation precludes an ALJ from “go[ing] on to” step five after
finding a claimant not disabled at step four, as the ALJ did
here.
I disagree. Although the First Circuit has not yet
addressed the question of whether an ALJ may make alternative
findings at step four and step five, other courts have held that
it is permissible to do so. In particular, in Murrell v.
Shalala, 43 F.3d 1388 (10th Cir. 1994), the Tenth Circuit
considered and rejected the very argument that Otero raises
here. The language of 20 C.F.R. § 416.920(a)(4), the court
determined, simply means that “a proper finding of disability
(at step three) or nondisability (at steps two, four, or five)
is conclusive, and, thus, cannot be overturned by consideration
of a subsequent step.” Murrell, 43 F.3d at 1389 (emphasis
added). But, the court held, the regulation does not prohibit
an ALJ from making alternative findings at subsequent steps that
reinforce, rather than overturn, a decision made at a previous
step. See id. Far from exceeding an ALJ’s discretion, the
court explained, such alternative findings strengthen an ALJ’s
decision by making it more thorough. Id. In other words, “the
integrity of a step-four finding is not compromised in any way
by the recognition that step five, if it were reached, would
dictate the same . . . result.” Id.
16 I find the reasoning in Murrell persuasive.4 Moreover,
Otero cites no case holding that an ALJ may not make alternative
step four and step five findings, and this Court is otherwise
aware of no such authority. To the contrary, numerous courts
across the country have, like the Murrell court, concluded that
an ALJ makes no error by reaching alternative findings at steps
four and five. See, e.g., Julian v. Colvin, No. 4:13-CV-2167-
RLW, 2015 WL 1257790, at *10 (E.D. Mo. Mar. 18, 2015)
(“[A]lternative findings are permissible, particularly to avoid
wasting valuable agency and judicial resources.”); Isabell v.
Comm’r, Soc. Sec., No. JKB-13-0479, 2013 WL 5883409, at *2 (D.
Md. Oct. 29, 2013) (“There is . . . no reason to preclude
alternative findings, which can ensure that an ALJ’s opinion
reaches a valid result even if the ALJ commits an error at
either Step Four or Five.”); Lindsey v. Soc. Sec. Admin., No.
1:10-cv-00038-JAW, 2011 WL 86567, at *2 (D. Me. Jan. 10, 2011)
4 In any event, even if the ALJ erred by making alternative step four and step five findings, that error would be harmless and would not justify remand. “[R]emand is not essential if it will amount to no more than an empty exercise.” Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000). As I have explained, the ALJ’s step five finding is supported by substantial evidence as it presently stands. Remanding this case would require the ALJ to do nothing more than to simply vacate his step four finding and leave his step five finding intact. For that reason, even if the ALJ made legal error here – which he did not – that error would be harmless and would not warrant remand.
17 (alternative step five finding does not warrant remand).
Accordingly, I conclude that the ALJ made no legal error here by
finding Otero not disabled at both step four and step five.5
IV. CONCLUSION
For these reasons, I grant the Commissioner’s motion to
affirm her decision (Doc. No. 13) and deny Otero’s motion to
reverse (Doc. No. 9). The clerk is directed to enter judgment
accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
August 27, 2015
cc: Raymond J. Kelly, Esq. T. David Plourde, Esq.
5 Because the ALJ’s step five determination is supported by substantial evidence and because the ALJ made no reversible error by making alternative findings at step four and step five, I need not address Otero’s argument that the ALJ’s step four finding lacked substantial evidence.