UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Doreen Ratliff Arseneau
v. Civil No. 17-cv-398-LM Opinion No. 2018 DNH 161 Nancy A. Berryhill, Acting Commissioner of Social Security
O R D E R
Doreen Arseneau 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 insurance benefits. Arseneau moves to reverse the
Acting Commissioner’s decision, and the Acting Commissioner
moves to affirm. For the reasons discussed below, the decision
of the Acting Commissioner is affirmed.
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 [Administrative Law Judge] 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. 42 U.S.C. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016). “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).
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis. 20 C.F.R.
§ 404.1520(a)(4). 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 she has a
severe impairment; and (3) determining whether the impairment
meets or equals a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(i)-(iii).
At the fourth step of the sequential analysis, the 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 her limitations caused by impairments, id.
§ 404.1545(a)(1), and her past relevant work, id.
§ 404.1520(a)(4)(iv). If the claimant can perform her past
relevant work, the ALJ will find that the claimant is not
disabled. See id. § 404.1520(a)(4)(iv). If the claimant cannot
perform her past relevant work, the ALJ proceeds to Step Five,
2 in which the ALJ has the burden of showing that jobs exist in
the economy which the claimant can do in light of the RFC
assessment. See id. § 404.1520(a)(4)(v).
BACKGROUND
A detailed statement of the facts can be found in the
parties’ Joint Statement of Material Facts (doc. no. 13). The
court provides a brief summary of the case here.
On September 22, 2014, Arseneau filed an application for
disability insurance benefits, alleging a disability onset date
of June 6, 2014, when she was 51 years old. She alleged a
disability due to a benign brain tumor and Meniere’s disease, an
inner ear disorder that can cause symptoms such as hearing loss,
vertigo, and dizziness.
After Arseneau’s claim was denied, she requested a hearing
in front of an ALJ. On March 8, 2016, the ALJ held a hearing.
Arseneau, who was represented by an attorney, appeared and
testified by video.
On March 30, 2016, the ALJ issued an unfavorable decision.
She found that Arseneau had the following severe impairments:
diabetes mellitus, benign positional vertigo, hypertension,
bilateral low frequency hearing loss, obesity, and fibromyalgia.
The ALJ also found that Arseneau’s obstructive sleep apnea,
benign brain tumor, and osteoarthritis of the knee were not
3 severe impairments. She further found that Arseneau had the
residual functional capacity to perform light work, as defined
in 20 C.F.R. § 404.1567(b), with certain limitations.
In assessing Arseneau’s residual functional capacity, the
ALJ gave significant weight to the opinion of Dr. Natacha
Sochat, a state agency physician who reviewed Arseneau’s medical
records. The ALJ ultimately adopted a more restrictive RFC
assessment than was contained in Dr. Sochat’s opinion.1
Elizabeth C. Laflamme, an impartial vocational expert,
testified at the hearing. In response to hypotheticals posed by
the ALJ, Laflamme testified that a person with Arseneau’s RFC
could perform jobs that exist in significant numbers in the
national economy, including price marker, laundry classifier,
and mail room clerk. Based on Laflamme’s testimony, the ALJ
found at Step Five that Arseneau was not disabled.
On July 10, 2017, the Appeals Council denied Arseneau’s
request for review, making the ALJ’s decision the Acting
Commissioner’s final decision. This action followed.
DISCUSSION
Arseneau raises three broad claims of error on appeal. She
argues that the ALJ erred in (1) evaluating the severity and
1 Specifically, Dr. Sochat opined that Arseneau had no exertional limitations. The ALJ, however, found that Arseneau could perform light work with certain restrictions.
4 effect of Arseneau’s impairments, (2) evaluating Arseneau’s
subjective complaints and symptoms, and (3) weighing the medical
opinions in the record. The court addresses each argument
below.
I. Arseneau’s Impairments
Arseneau contends that the ALJ erred at Step Two in finding
that her bilateral knee pain, sleep apnea, and depression were
not severe impairments.2 She also argues that the ALJ erred in
failing to consider the effects of Arseneau’s obesity on her RFC
assessment, despite the ALJ finding that it was a severe
impairment.
A. Step Two - Severe Impairments
At Step Two, the ALJ determines based on the record
evidence whether the claimant has one or more medically
determinable impairments that are severe. 20 C.F.R. §
404.1520(a)(ii). An impairment or a combination of impairments
is severe at Step Two if it “significantly limits [the
claimant’s] physical or mental ability to do basic work
activities.” Id. § 404.1520(c). It is the claimant’s burden at
As discussed further infra, although the ALJ specifically 2
addressed Arseneau’s knee pain and sleep apnea and found them to be non-severe, the ALJ did not address Arseneau’s depression.
5 Step Two to show that she has a medically determinable severe
impairment. Bowen v. Yuckert, 482 U.S. 137, 146, 149 (1987).
1. Bilateral Knee Pain
In her decision, the ALJ addressed Arseneau’s complaints of
bilateral knee pain. The ALJ noted that an MRI of Arseneau’s
knee revealed “some really minor degenerative changes” and that
Arseneau testified at the hearing that her knee pain had
improved with cortisone injections. Admin. Rec. at 48. The ALJ
concluded that Arseneau’s bilateral knee pain was therefore non-
severe.
Arseneau contends that the ALJ erred in making that
determination because Arseneau testified that her knee pain was
going to be reevaluated in “a few months” and that “if the pain
starts to come back again we’ll go into MRI and seeing the
possibilities if there’s a need for surgery.” Doc. no. 10-1 at
4. She also notes that medical records showed that she had
fallen several times because of Meniere’s disease, including one
time when she landed on her knees and “significantly injured her
left patella.” Id. at 5.
Arseneau has not shown that the ALJ committed error at Step
Two regarding her bilateral knee pain. The fall she references
occurred in March 2014, see Admin. Rec. 361-63, before she
received the cortisone injections that she testified helped her
6 knee pain.3 In addition, her testimony that she could eventually
need surgery if her knee pain returns is insufficient to show
that her knee pain was severe during the relevant time,
particularly because she points to no evidence in the record
that her symptoms persisted after her cortisone injections. See
Leech v. Berryhill, No. 2:16-CV-00487-GZS, 2017 WL 2817023, at
*4 (D. Me. June 28, 2017), report and recommendation adopted by
2017 WL 3185154 (D. Me. July 26, 2017) (noting that reliance on
speculation as to the future effect of an impairment is
insufficient to show reversible error at Step Two). Therefore,
Arseneau has not shown that the ALJ erred in her Step Two
determination with regard to Arseneau’s bilateral knee pain.
2. Sleep Apnea
The ALJ found that Arseneau’s sleep apnea was not a severe
impairment, noting that the condition is “generally well
corralled with use of a CPAP machine.” Admin. Rec. at 48.
Arseneau contends that this finding was in error because she
testified that she continues to experience fatigue even with the
use of a CPAP machine, and her medical records show that she
complained about her fatigue consistently.
3 The exact dates Arseneau received the cortisone injections are unclear, other than that they occurred after March 2014 and her final one occurred in September 2015.
7 The only medical record Arseneau cites concerning her sleep
apnea is a March 2014 progress note from Dartmouth-Hitchcock
Medical Center. This note contains Arseneau’s subjective
complaints about her sleep apnea without any medical evidence to
corroborate her symptoms. A claimant’s subjective complaints
alone, however, do not provide a basis for an impairment. See
20 C.F.R. § 404.1528 (A claimant’s “statements alone are not
enough to establish that there is a physical or mental
impairment.”);4 see also Durgin v. Berryhill, No. 2:17-CV-00241-
DBH, 2018 WL 1532668, at *4 (D. Me. Mar. 28, 2018), report and
recommendation adopted by 2018 WL 2108012 (D. Me. May 7, 2018)
(noting that statements in medical record reflecting plaintiff’s
subjective reports are not medical opinions). Further, a
“claimant has the burden to show that any error at Step Two is
outcome determinative.” Chabot v. U.S. Soc. Sec. Admin., No.
13-cv-126-PB, 2014 WL 2106498, at *10 (D.N.H. May 20, 2014).
Thus, even if the ALJ had not properly evaluated Arseneau’s
sleep apnea, any error is harmless because Arseneau has not
pointed to any medical evidence to show that the diagnosis
4 20 C.F.R. § 404.1528 was removed effective March 27, 2017, after the ALJ issued her decision. The revised version of 20 C.F.R. § 404.1529, which replaced § 404.1528, contains similar language. See 20 C.F.R. § 404.1529(a) (“There must be objective medical evidence from an acceptable medical source that shows you have a medical impairment(s) . . . .”).
8 caused any functional limitations. See Caswell v. Colvin, No.
13-cv-552-JD, 2014 WL 4749456, at *9 (D.N.H. Sept. 24, 2014)
(“Any error in failing to address limitations caused by
Caswell’s obesity and sleep apnea is harmless because Caswell
has not provided evidence to show that those diagnoses caused
any functional limitations.”).
3. Depression
Arseneau asserts that she was diagnosed with depression by
her treating physicians and that her treatment records indicate
that her depression caused functional limitations. She notes
that the ALJ did not discuss Arseneau’s depression at all in the
decision, let alone make a finding as to the severity of the
impairment as required at Step Two.
While a claimant bears the burden at Steps One through
Four, the Acting Commissioner retains an obligation “to develop
an adequate record from which a reasonable conclusion can be
drawn.” Jones v. Berryhill, No. 16-11011-DJC, 2017 WL 3726018,
at *9 (D. Mass. Aug. 29, 2017). Nevertheless, when a claimant
is represented by counsel, the ALJ “should ordinarily be
entitled to rely on claimant’s counsel to structure and present
the claimant's case in a way that claimant’s claims are
adequately explored.” Faria v. Comm’r of Social Sec., 187 F.3d
621, 1998 WL 1085810, at *1 (1st Cir. 1998).
9 Arseneau has not shown that the ALJ committed any error
with regard to Arseneau’s depression. Because Arseneau was
represented by counsel, the ALJ was under no heightened duty to
develop the record, see Morris v. Astrue, No. 11-cv-248-JL, 2012
WL 4499348, at *9 (D.N.H. Sept. 28, 2012), and the ALJ was
entitled to rely on Arseneau’s counsel to structure the case,
see Faria, 1998 WL 1085810, at *1. Arseneau did not include
depression as one of her impairments in either her Disability
Report or in her request for review and she did not testify at
the hearing that she suffers from depression. Therefore,
Arseneau has not shown that the ALJ erred in failing to address
her depression.
Even if Arseneau had shown that the ALJ erred, however, any
error is harmless. In her motion, Arseneau cites medical
records from March 2014, which list depression as part of
Arseneau’s medical history, but do not show a current diagnosis
of depression. Although it appears that Arseneau took
medication for depression, see Admin. Rec. at 485-86, treatment
records show that she was “stable” and “did well” with stressful
events. Id. at 485. Further, Arseneau does not point to any
medical records that would show any functional limitations from
10 her depression. Therefore, even if the ALJ erred in not
addressing Arseneau’s depression, any error is harmless.5
B. Obesity
Arseneau seeks reversal and remand on the basis that the
ALJ found a severe impairment of obesity but failed to assess
any resulting functional limitations, in contravention of Social
Security Ruling (“SSR”) 02–1p. See Titles II & XVI: Evaluation
of Obesity, SSR 02–1P, 67 Fed. Reg. 57859 (Sept. 12, 2002). The
Acting Commissioner contends that the ALJ appropriately
explained the impact of Arseneau’s obesity in her RFC
assessment.
“The combined effects of obesity with other impairments may
be greater than might be expected without obesity.” SSR 02-1P,
67 Fed. Reg. at 67863. “SSR 02–1p requires an individualized
assessment of the impact of obesity on a claimant’s
functioning.” Fothergill v. Astrue, No. 2:11-CV-247-DBH, 2012
WL 1098444, at *2 (D. Me. Mar. 29, 2012), report and
5 Arseneau also notes that the ALJ “made no findings regarding the severity of her carpal tunnel syndrome.” Doc. no. 10-1 at 3. To the extent Arseneau intended to argue that the ALJ erred at Step Two in not finding that her carpal tunnel syndrome was a severe impairment, that argument is unavailing. As with Arseneau’s depression, she failed to indicate on her Disability Report or request for review that she suffered from carpal tunnel syndrome, and she has pointed to no medical records that establish that she suffers from any functional limitations from the condition.
11 recommendation adopted by 2012 WL 1313488 (D. Me. Apr. 17,
2012); SSR 02-1p, 67 Fed. Reg. at 57862 (“An assessment should .
. . be made of the effect obesity has upon the individual’s
ability to perform routine movement and necessary physical
activity within the work environment.”). Thus, when an ALJ
finds a severe impairment of obesity, she finds that “the
plaintiff’s obesity was determined to cause more than a slight
limitation in work-related function” and must “describe how
obesity affected the plaintiff’s RFC.” Kaylor v. Astrue, No.
2:10-CV-33-GZS, 2010 WL 5776375, at *3 (D. Me. Dec. 30, 2010),
report and recommendation adopted by 2011 WL 487844 (D. Me. Feb.
7, 2011).
The ALJ found at Step Two that Arseneau’s obesity was a
severe impairment. The ALJ cited SSR 02-1p, noting that obesity
may “increase the severity or functional limitations of the
other impairments” and stated that she “has fully considered
obesity in the context of the overall record of evidence” when
making her RFC assessment. Admin. Rec. at 49.
ALJ stated that an “individual assessment of the claimant
supports a finding of Level I obesity, which when considered in
combination with her other impairments, produce nonexertional
limitations consistent with those outlined in the body of this
decision.” Id. at 52. The ALJ subsequently found that because
12 of “persistent pain from fibromyalgia and the effects of
obesity, the undersigned finds the claimant can never climb
ladders, ropes or scaffolds and she can occasionally kneel,
stoop, crouch, crawl and balance.” Id.
Thus, the ALJ specifically identified the role that obesity
played in Arseneau’s functional limitations and incorporated
those limitations in her RFC assessment. Therefore, the ALJ
complied with her obligations under SSR 02-1P. See Lobov v.
Colvin, No. CIV. 12-40168-TSH, 2014 WL 3386567, at *8 (D. Mass.
June 23, 2014) (holding that ALJ’s statement that claimant’s
obesity was a severe impairment and that it, in combination with
the claimant’s other impairments, “caused significant limitation
in claimant’s ability to perform basic work activities” was
sufficient under SSR 02-1P); Spencer v. Colvin, No. 1:13-CV-
00171-JAW, 2014 WL 1806862, at *5 (D. Me. May 7, 2014)
(affirming Commissioner’s decision and noting that “[w]hile the
discussion of obesity is not expansive, the ALJ plainly
considered it in assessing Plaintiff’s residual capacity”).
In addition, Arseneau does not identify any evidence that
her obesity imposed greater functional limitations than those
found by the ALJ. Therefore, because Arseneau has not shown
that her obesity caused additional functional limitations, any
error by the ALJ is harmless. See, e.g., Jessica B. v.
Berryhill, No. 17-cv-294-NT, 2018 WL 2552162, at *7 (D. Me. June
13 3, 2018); Leonard v. Colvin, No. CV 15-155S, 2016 WL 3063853, at
*11 (D.R.I. Mar. 29, 2016), report and recommendation adopted by
2016 WL 3077874 (D.R.I. May 31, 2016); Drouin v. Colvin, No.
1:14-CV-544-DBH, 2015 WL 7259562, at *4 (D. Me. Oct. 2, 2015),
report and recommendation adopted by 2015 WL 7194881 (D. Me.
Nov. 16, 2015).
For those reasons, Arseneau has not shown that the ALJ
erred in evaluating the severity and effect of Arseneau’s
impairments.
II. Arseneau’s Subjective Complaints and Symptoms
Arseneau contends that the ALJ improperly evaluated her
subjective complaints and symptoms under SSR 96-7p, 61 Fed. Reg.
34483 (July 2, 1996). She argues that the ALJ should have
evaluated her subjective complaints under SSR 16-3p, 82 Fed.
Reg. 49462 (Oct. 25, 2017), which superseded SSR 96-7p and
became effective March 27, 2016, three days prior to the date
the ALJ issued her decision. Arseneau asserts that the ALJ’s
error led her to incorrectly evaluate Arseneau’s complaints and
requires reversal. The Acting Commissioner agrees that the ALJ
applied the wrong Social Security Ruling to Arseneau’s
subjective complaints but argues that the error was harmless
because the ALJ adhered to the regulatory language and factors
required by SSR 16-3p.
14 A. SSR 16-3p
SSR 96–7p required an ALJ to assess the applicant’s
“credibility” when assessing the “extent to which an
individual’s statements about symptoms can be relied upon as
probative evidence in determining whether the individual is
disabled.” SSR 96–7p, 61 Fed. Reg. at 34485. “Following
concerns raised by the Administrative Conference of the United
States about symptom evaluation under that SSR, however, the SSA
decided to ‘eliminat[e] the use of the term ‘credibility’ from
[the] sub-regulatory policy’ to make clear that a ‘subjective
symptom evaluation is not an examination of an individual’s
character.’” Coskery v. Berryhill, 892 F.3d 1, 4 (1st Cir.
2018) (quoting SSR 16-3p, 82 Fed. Reg. at 49463 & n.1).
“Thus, under SSR 16–3p, which supersedes SSR 96–7p, an ALJ
determining whether an applicant has a residual functional
capacity that precludes a finding of disability must ‘evaluate
the intensity and persistence of an individual’s symptoms such
as pain and determine the extent to which an individual’s
symptoms limit his or her ability to perform work-related
activities.’” Id. (quoting SSR 16-3p, 82 Fed. Reg. at 49464).
“Moreover, SSR 16–3p provides that, in conducting that inquiry,
the ALJ must ‘examine the entire case record, including the
objective medical evidence; an individual’s statements about the
15 intensity, persistence, and limiting effects of symptoms;
statements and other information provided by medical sources and
other persons; and any other relevant evidence in the
individual’s case record.’” Id. (quoting SSR 16-3p, 82 Fed.
Reg. at 49464).
B. ALJ’s Evaluation of Arseneau’s Subjective Complaints
In evaluating Arseneau’s subjective complaints, the ALJ
discussed Arseneau’s testimony concerning the effects of her
dizziness, fatigue, and obesity. The ALJ addressed the evidence
in the record that she found did not fully support Arseneau’s
subjective complaints, which included her “longitudinal
treatment record” and medical records throughout 2014. The ALJ
also noted that, although Arseneau claimed that she could not
perform the basic demands of competitive work, she was caring
for her “grandson who has multiple psychological issues.” Id.
at 51. As a result, the ALJ concluded that Arseneau’s
statements regarding the intensity, persistence, and limiting
effects of her symptoms were not credible to the extent that
they were inconsistent with the RFC assessment.
C. Arseneau’s Challenges to the ALJ’s Evaluation
Arseneau raises three arguments to challenge the ALJ’s
evaluation of Arseneau’s subjective complaints about her
symptoms. The court addresses each below.
16 First, Arseneau argues that the ALJ contravened SSR 16-3p’s
instruction that an ALJ “not disregard an individual's
statements about the intensity, persistence, and limiting
effects of symptoms solely because the objective medical
evidence does not substantiate the degree of impairment-related
symptoms alleged by the individual.” SSR 16-3p, 82 Fed. Reg. at
49465. The ALJ, however, did not violate that rule. While the
ALJ did rely on the objective medical evidence in rejecting
Arseneau’s allegations, the ALJ also noted other factors,
including Arseneau’s daily activities and the fact that she
cares for her grandson, the medical opinions, the frequency of
her doctor’s visits, and Arseneau’s treatment regimens before
and after her alleged onset date.
Second, Arseneau disputes the ALJ’s characterization of a
June 11, 2014 treatment note from Christopher Laurent, APRN. In
her decision, the ALJ discussed the June 11, 2014 appointment
with Laurent, noting that the appointment occurred a few days
after Arseneau’s alleged disability onset date. The ALJ noted
Arseneau’s statement during that appointment (as recorded by
Laurent) that she needed a doctor to state that she had to be
out of work for six months so that she can acquire disability
benefits because she made too much money to be eligible
otherwise. The ALJ also stated that despite Arseneau’s
testimony as to her long-term limited functional abilities, her
17 last physical exam prior to the June 2014 appointment had been
approximately a year earlier and was within normal limits. See
Admin. Rec. at 51.
Arseneau contends that the ALJ “erroneously implies that Ms.
Arseneau had not had any medical treatment during the previous
year, which is incorrect – the treatment note simply indicates
that her last complete physical examination had been done
approximately one year earlier.” Doc. no. 10-1 at 8. The ALJ’s
decision, however, does not make such an implication, and
instead simply notes that Arseneau’s last physical exam had been
a year earlier and was within normal limits. Arseneau does not
dispute the accuracy of that statement and does not show any
error.
Arseneau also notes that she had consistently described her
difficulties with sustaining work activity prior to her June
2014 appointment. Arseneau appears to contend that the ALJ
erred when she considered Arseneau’s statement to Laurent that
she needed to be out of work because she made too much money and
was attempting to secure eligibility for social security
disability benefits. Arseneau fails to identify any error in
that analysis. An ALJ may consider a claimant’s statements to
her medical providers, including those that reflect on her
reasons for seeking treatment or not pursuing treatment in the
18 past. See, e.g., SSR 16-3p, 82 Fed. Reg. at 49466 (directing an
ALJ to consider “possible reasons he or she may not comply with
treatment or seek treatment consistent with the degree of his or
her complaints”). Regardless, it does not appear that the ALJ
took Arseneau’s statement into account in reaching her decision
and, therefore, any error is harmless.
Third, Arseneau argues that the ALJ erroneously concluded
that her activities of caring for her grandson are inconsistent
with her claimed symptoms. She contends that the “demands of
caring for a child at home, even a child with mental health
issues, do not necessarily equate to the demands of sustaining
gainful employment in the workplace.” Doc. no. 10-1 at 9. The
ALJ, however, did not cite Arseneau’s ability to care for her
grandson as evidence that she could engage in substantial
gainful activity. Rather, the ALJ discussed Arseneau caring for
her grandson as evidence of her daily activities in evaluating
her subjective complaints. That is precisely what SSR 16-3p and
corresponding social security regulations require an ALJ to
consider. See SSR 16-3p, 82 Fed. Reg. at 49465 (directing the
ALJ to consider a claimant’s daily activities when evaluating
the effect of his or her symptoms); see also 20 C.F.R. §
404.1529(c)(3).
19 In short, none of these arguments justifies reversal.6
III. Medical Opinions
Arseneau contends that the ALJ erred in weighing the medical
opinions in the record. Specifically, Arseneau argues that the
ALJ erroneously gave little weight to Laurent and did not
address the opinion of her treating podiatrist, Dr. William
Schanlaber. Arseneau also notes that the ALJ gave great weight
to the opinion of Dr. Sochat.
“An ALJ is required to consider opinions along with all
other relevant evidence in a claimant’s record.” Ledoux v.
Acting Comm’r, Social Sec. Admin., No. 17-cv-707-JD, 2018 WL
2932732, at *4 (D.N.H. June 12, 2018). “Medical opinions are
statements from acceptable medical sources that reflect
judgments about the nature and severity of [the claimant’s]
impairment(s), including [the claimant’s] symptoms, diagnosis
and prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant’s] physical or mental
restrictions.” § 404.1527(a)(1).
6 It is unclear whether Arseneau argues that the decision must be reversed because the ALJ cited SSR 96-7P instead of SSR 16- 3p. To the extent she intended to make that argument, it is unavailing. Coskery, 892 F.3d at 5-6 (holding that regardless of whether the ALJ should have applied SSR 96-7p or SSR 16-3p, the ALJ’s decision was supported by substantial evidence).
20 The ALJ analyzes the opinions of state agency consultants,
treating sources, and examining sources under the same rubric.
See id.; 20 C.F.R. § 404.1527(c). The ALJ must consider “the
examining relationship, treatment relationship (including length
of the treatment relationship, frequency of examination, and
nature and extent of the treatment relationship), supportability
of the opinion by evidence in the record, consistency with the
medical opinions of other physicians,” along with the doctor’s
expertise in the area and any other relevant factors. Johnson
v. Berryhill, No. 16-cv-375-PB, 2017 WL 4564727, at *5 (D.N.H.
Oct. 12, 2017).
The court addresses the opinions of Dr. Sochat, Laurent, and
Dr. Schanlaber in turn.
A. Dr. Sochat
As discussed supra, the ALJ gave significant weight to the
opinion of Dr. Sochat, a state agency physician who did not
examine Arseneau. The ALJ agreed with Dr. Sochat’s opinion as
to Arseneau’s postural limitations and included them in her RFC
assessment. The ALJ did not agree with Dr. Sochat’s opinion
that Arseneau had no exertional limitations, instead concluding
that Arseneau was limited to performing light work.
In evaluating Dr. Sochat’s opinion, the ALJ was mindful of
the factors set forth in 20 C.F.R. § 404.1527(c) and SSR 96-6p,
21 see 1996 WL 374180, at *2 (July 2, 1996).7 The ALJ concluded
that Dr. Sochat’s opinion was entitled to significant weight
because it was completed by an acceptable medical source who was
familiar with the disability program and reviewed the evidence,
provided a rationale for the opinion, and cited supporting
evidence.
Although Arseneau notes that the ALJ gave Dr. Sochat’s
opinion significant weight, she does not appear to contend that
the ALJ erred in doing so. Without more, the court finds no
error in the weight given to Dr. Sochat’s opinion.
B. Laurent
Laurent, a nurse practitioner, saw Arseneau every two or
three months between May 2014 and February 2016. On February
23, 2016, Laurent completed a Physical Impairment Medical Source
Statement. In that Statement, Laurent stated that Arseneau’s
impairments had existed since June 2014. He opined that: (1)
Arseneau frequently experienced pain or other symptoms severe
enough to interfere with attention and concentration for simple
work tasks; (2) she was incapable of even low stress jobs; (3)
she could sit and stand/walk for less than 2 hours each in an 8-
hour day; and (4) she needed to walk every 30 minutes for 5
7 SSR 96-6p was in effect when the ALJ issued her decision. It has since been superseded by SSR 17-2p.
22 minutes. Laurent concluded that Arseneau needed to shift
positions at will and take unscheduled breaks; she could
occasionally lift/carry less than ten pounds and rarely
lift/carry ten pounds; and she could occasionally look up and
down, turn her head to the side, and hold her head static.
The ALJ addressed Laurent’s assessment in her decision,
noting that, as a nurse practitioner, Laurent was not an
acceptable medical source and therefore could not offer a
medical opinion under § 404.1527(a). See 20 C.F.R. §
404.1513(a) (nurse practitioners not listed among those deemed
acceptable medical sources); Considering Opinions and Other
Evidence from Sources Who Are Not “Acceptable Medical Sources”
in Disability Claims, SSR 06–3p, 2006 WL 2329939 (rescission
eff. Mar. 27, 2017).8 Nevertheless, the ALJ addressed Laurent’s
opinion and concluded that the medical record did not contain
objective medical evidence that supported Laurent’s extreme
restrictions. The ALJ also found that Arseneau’s daily
activities were inconsistent with Laurent’s assessment.
Arseneau challenges the ALJ’s evaluation of Laurent’s
opinion, asserting that the ALJ failed to articulate good
reasons for discounting Laurent’s assessment. An ALJ, however,
8 “The commissioner rescinded SSR 06–03p effective for claims filed on or after March 27, 2017.” Jessica B., 2018 WL 2552162, at *6 (internal citations omitted).
23 need not provide “good reasons” for discounting the opinion of a
non-acceptable medical source. See Dale W. v. Berryhill, No.
2:17-CV-00213-JDL, 2018 WL 2278253, at *8 (D. Me. May 18, 2018);
see also Robert L. v. Berryhill, No. 1:17-CV-00348-JDL, 2018 WL
3599966, at *9 (D. Me. July 27, 2018) (noting that with regard
to a non-acceptable medical source under SSR 06-3p, an ALJ is
obligated only to “explain the weight given to” her opinion “or
otherwise ensure that the discussion of the evidence . . .
allows a claimant or subsequent reviewer to follow [her]
reasoning”).
Regardless, even if Laurent were an acceptable medical
source, the ALJ properly addressed his opinion. Arseneau
challenges the ALJ’s evaluation of Laurent’s opinion on several
grounds, none of which has any merit. Arseneau criticizes the
ALJ for considering objective medical evidence to discount
Laurent’s opinion. As discussed supra, however, under
§ 404.1527, an ALJ considers many factors in evaluating a
medical source’s opinion, including the supportability of the
opinion by evidence in the record, the consistency with the
medical opinions of other physicians, and any other relevant
factors.9 Arseneau further criticizes the ALJ for not taking
9 Arseneau appears to conflate the standard for evaluating a claimant’s subjective symptoms, provided in SSR 16-3p, with the standard for evaluating opinion evidence under § 404.1527.
24 into account her depression when evaluating Laurent’s opinion.
Laurent did not offer any opinion as to the effect of Arseneau’s
depression, however, and, as discussed supra, Arseneau does not
point to any medical records that would show functional
limitations due to depression.
Arseneau also contends that the ALJ erred when she found
that Arseneau’s ability to crochet was inconsistent with
Laurent’s opinion as to Arseneau’s manipulative limitations.
However, an ALJ may consider a claimant’s daily activities in
evaluating a provider’s medical opinion. See Pressley v.
Berryhill, No. CV 16-40050-TSH, 2017 WL 5760915, at *16 (D.
Mass. Sept. 8, 2017) (holding that ALJ reasonably discounted
weight given to a medical opinion because it was inconsistent
with the claimant’s reported daily activities); Reyes v.
Berryhill, No. CV 16-10466-DJC, 2017 WL 3186637, at *12 (D.
Mass. July 26, 2017) (holding that the ALJ properly relied upon
claimant’s daily activities in evaluating the medical records
and opinion evidence). Here, the ALJ properly found that
Arseneau’s testimony that she crocheted was inconsistent with
Laurent’s opinion that she could use her hands only one percent
of the day and her fingers five percent of the day. See Admin.
Rec. at 656.
For those reasons, Arseneau has not shown any error in the
ALJ’s evaluation of Laurent’s opinion.
25 C. Dr. Schanlaber
Arseneau argues that the ALJ erred in failing to address
the April 2014 treatment note of her treating podiatrist, Dr.
William Schanlaber.10 She cites Dr. Schanlaber’s treatment note,
which states that Arseneau “would be best suited for the type of
job that does not require extended standing, walking, etc.”
Doc. no. 10-1 at 12.
Assuming that Dr. Schanlaber’s statement could be
considered an opinion as to Arseneau’s functional limitations,
Arseneau has not shown that the ALJ’s failure to consider the
April 2014 treatment note warrants remand. The treatment note
states that Arseneau had “bilateral foot surgery” on December
19, 2013.11 Admin. Rec. at 317. The note describes the
appointment as a “post op check,” and pertains to Arseneau’s
impairment due to the condition of her feet post-surgery. Id.
Arseneau points to no medical records from Dr. Schanlaber after
April 2014 or to medical evidence in the record that suggest any
limitations because of an impairment with her feet. Further,
Arseneau does not claim an impairment of her feet in support of
10 Arseneau describes Dr. Schanlaber’s treatment note as being from May 2014, but she quotes from and cites to an April 2014 treatment note. It does not appear that Arseneau saw Dr. Schanlaber after April 2014.
11 The note describes the surgery as “plantar fascial release left heel, fifth metatarsal osteotomy left foot, flexor tenotomy of fourth and fifth right toes.” Admin. Rec. at 316.
26 her disability, and the ALJ was entitled to rely on Arseneau’s
counsel’s construction of the case. See Faria, 1998 WL 1085810,
at *1. Therefore, the ALJ did not err in failing to discuss the
April 2014 treatment note.
CONCLUSION
For the foregoing reasons, Arseneau’s motion to reverse
(doc. no. 10) is denied, and the Acting Commissioner's motion to
affirm (doc. no. 12) 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
August 14, 2018
cc: Counsel of Record