Douglas v SSA

2016 DNH 176

• Court: District Court, D. New Hampshire
• Decided: September 30, 2016
• Docket: 15-cv-378-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kathrine Douglas

v. Civil No. 15-cv-378-PB Opinion No. 2016 DNH 176 US Social Security Administration, Acting Commissioner, Carolyn W. Colvin

MEMORANDUM AND ORDER

Kathrine Douglas is a thirty-nine year old woman who

previously worked as a cashier and a companion. Douglas

challenges the Social Security Administration’s denial of her

claims for disability insurance benefits (“DIB”) and

supplemental security income (“SSI”). The Social Security

Commissioner seeks to have the rulings affirmed.

I. BACKGROUND

In accordance with Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts (Doc. No. 14).

Because that joint statement is part of the court’s record, I do

not recount it here. I discuss facts relevant to the

disposition of this matter as necessary below. II. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), I have the authority to

review the administrative record and the pleadings submitted by

the parties, and to enter judgment affirming, modifying, or

reversing the final decision of the Commissioner. That review

is limited, however, “to determining whether the [Administrative

Law Judge] used the proper legal standards and found facts

[based] upon the proper quantum of evidence.” Ward v. Comm’r of

Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). I defer to the

Administrative Law Judge’s (ALJ’s) findings of fact, so long as

those findings are supported by substantial evidence. Id.

Substantial evidence exists “if a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate

to support his conclusion.” Irlanda Ortiz v. Sec’y of Health &

Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam)

(quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d

218, 222 (1st Cir. 1981)).

If the substantial evidence standard is met, the ALJ’s

factual findings are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. Findings

are not conclusive, however, if the ALJ derived his findings by

“ignoring evidence, misapplying the law, or judging matters

entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st 2 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

Douglas applied for DIB and SSI in March 2009, alleging

disability as of July 2007. Doc. No. 14 at 1. She later

amended her alleged onset date to January 1, 2010. Id.

Douglas’s applications were denied in September 2011. Id.

After an appeal to this court, Douglas’s case was remanded for

further proceedings. Id.

An administrative law judge (“ALJ”) held another hearing in

June 2014, at which Douglas further amended her alleged onset

date to January 1, 2011. Id. At that hearing, a vocational

expert and Douglas, represented by counsel, both testified. Tr.

at 1025-52 (hearing transcript). The ALJ then issued a written

decision in August 2014, concluding that Douglas was not

disabled. Tr. at 1001-16.

The ALJ evaluated Douglas’s claims under the five-step

sequential process outlined in 20 C.F.R. §§ 404.1520(a) and

416.920(a). At step one, the ALJ found that Douglas had not 3 engaged in substantial gainful employment since January 1, 2011,

her amended alleged onset date. Tr. at 1004. The ALJ

determined at step two that Douglas had severe impairments of

obesity and degenerative disc disease of the lumbar spine. Tr.

at 1005. At step three, the ALJ found that Douglas’s

impairments did not meet or medically equal any of the listed

impairments. Tr. at 1009. Then, after calculating Douglas’s

residual functional capacity (“RFC”), the ALJ concluded at step

four that Douglas was able to perform her past work as a cashier

and companion. Tr. at 1015. In the alternative, the ALJ

determined at step five that Douglas could perform jobs that

exist in significant numbers in the national economy. Tr. at

1015. The ALJ therefore found that Douglas was not disabled.

Tr. at 1016.

In July 2015, the Appeals Council denied Douglas’s request

to review the ALJ’s decision. Tr. at 985-88. As such, the

ALJ’s decision constitutes the Commissioner’s final decision,

and this matter is now ripe for judicial review.

Here, Douglas argues that a remand is required for two

principal reasons: (1) the ALJ erred in determining Douglas’s

residual functional capacity, and (2) the ALJ improperly relied

on certain vocational expert testimony. I address each issue in

turn. 4 A. Residual Functional Capacity Arguments

Douglas contends that the ALJ erred in assessing her RFC.

A claimant’s RFC is “the most [the claimant] can still do

despite [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1),

416.945(a)(1). The ALJ must assess a claimant’s RFC “based on

all of the relevant medical and other evidence.” See 20 C.F.R.

§§ 404.1545(a)(3), 416.945(a)(3). On appeal, I determine

whether the assigned RFC is supported by substantial evidence.

Irlanda Ortiz, 955 F.2d at 769.

In this case, the ALJ found that Douglas has the RFC “to

perform light work as defined in 20 CFR 404.1567(b) and

416.967(b) except she could occasionally climb, balance, stoop,

kneel crouch or crawl.”1 Tr. at 1010. In formulating the RFC,

the ALJ recognized Douglas’s severe impairments of obesity and

degenerative disk disease. Tr. at 1011. He also noted “EMG

testing that showed evidence of lumbar radiculopathy.” Tr. at

1011. The ALJ concluded that “[a]lthough [Douglas] subjectively

alleges significant symptoms and work-related functional

1 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 5 limitations from her combination of impairments, the record as a

whole fails to support her alleged limitations as described.”

Tr. at 1011. In particular, Douglas’s treatment history and the

“limited objective scans or testing” on record did not support

the alleged limitations. See Tr. at 1011-12. The ALJ further

described evidence adversely affecting Douglas’s credibility.

Tr. at 1012-13.

The ALJ did not include any non-exertional limitations in

the RFC. Tr. at 1010. In his step two analysis, the ALJ

discussed Douglas’s subjective reports of depression, manic

symptoms, anxiety, and obsessive compulsive disorder. Tr. at

1005. After overviewing Douglas’s “objective clinical

presentation” and evaluating several opinions on her mental

health, the ALJ concluded that “[Douglas’s] mental health

conditions do not more than minimally affect [her] ability to

engage in substantial gainful activity.” Tr. at 1007-1008. The

RFC assessment contains two additional references to opinions on

Douglas’s mental health. Tr. at 1013-14. Douglas challenges

the ALJ’s RFC assessment on several grounds.

1. Reliance on Dr. Jaffe’s Opinion

Douglas first argues that the ALJ erred by relying on the

opinion of Dr. Jonathan Jaffe. See Doc. No. 10-1 at 5-6. Dr.

Jaffe, a state medical consultant, prepared a “Physical [RFC] 6 Assessment” of Douglas in May 2009. See Tr. at 578, 585, 1013.

In relevant part, Dr. Jaffe opined that Douglas could

occasionally lift 20 pounds, could frequently lift 10 pounds,

and could stand or walk for “about 6 hours in an 8-hour

workday.” Tr. at 579. Dr. Jaffe limited Douglas to only

occasionally climbing, balancing, stooping, kneeling, crouching

and crawling. Tr. at 580.

Douglas provides two reasons why the ALJ’s reliance on Dr.

Jaffe’s opinion was erroneous. First, she points to the ALJ’s

statement in his decision that only evidence that is dated

within 12 months of a claimant’s alleged onset date is material

to a DIB claim and argues that the ALJ failed to act

consistently with this statement by considering Dr. Jaffe’s

opinion because the opinion predated Douglas’s amended onset

date by approximately 1-1/2 years. See Doc. No. 10-1 at 5.

Second, she argues that the ALJ should not have relied on Dr.

Jaffe’s opinion because it fails to account for subsequent

medical evidence that bears on Douglas’s RFC. See id. at 5-6.

I address each argument in turn.

a. Materiality

Douglas’s first argument fails because it is based on the

mistaken premise that an ALJ may not consider medical evidence

7 that predates a claimant’s onset date by more than a year. The

ALJ based his statement to this effect on the Social Security

Administration’s Hearings, Appeals, and Litigation Law Manual

(“HALLEX”). See Tr. at 1001.

HALLEX I-2-6-58 (A), the section the ALJ referenced in this

case, provides that an ALJ “will generally admit into the record

any information he or she determines is material.” HALLEX I-2-

6-58 (A). “Information is material if it is relevant, i.e.,

involves or is directly related to issues being adjudicated.”

Id. After defining materiality, HALLEX lists “examples of

information that may be material,” including “[e]vidence dated

within 12 months of the alleged onset date under” a DIB claim

and “[e]vidence dated on or after the application date” of a SSI

claim. Id.

The ALJ misread HALLEX I-2-6-58 (A) because, by its own

terms, it merely offers examples of evidence that may be

considered material without categorically determining evidence

to be immaterial simply because it does not fit within a listed

example. Because HALLEX 1-2-6-58 (A) does not bar the ALJ from

considering Dr. Jaffe’s opinion, the ALJ did not err in relying

on the opinion even though it predated Douglas’s alleged onset

8 date by more than a year.2

b. Impairments arising after Dr. Jaffe’s opinion

Douglas next claims that the ALJ erred in relying on Dr.

Jaffe’s opinion because it did not account for impairments that

arose or were diagnosed after he issued the opinion. See Doc.

No. 10-1 at 5-6. Douglas apparently alleges that Dr. Jaffe did

not consider Douglas’s plantar fasciitis, right trochanteric

bursitis, degenerative disc disease, or radiculopathy. See id.

at 5-6, 8. The record also includes x-rays, EMG testing, and an

MRI performed and interpreted after Dr. Jaffe produced his

opinion. See Id. at 6-8; Tr. at 865, 920, 923.

In February 2011, Dr. Jonathan Warach opined that an

“electrophysiologic test of the lower left extremity reveal[ed]

evidence of lumbar radiculopathy or polyradiculopathy most

prominently affecting the L5 and S1 segments.” Tr. at 803. In

June 2011, Dr. Peter Dirksmeier reviewed contemporaneous x-rays

2 Douglas also faults the ALJ for relying on Dr. Jaffe’s opinion while at the same time refusing to credit other information favorable to her on the ground that it was “remote.” The ALJ, however, did not deem the “remote” evidence to be immaterial and thus he did not violate HALLEX 1-2-6-58 (A). Determining the weight that should be given to evidence included in the record is a different matter that is committed to the discretion of the ALJ. The ALJ did not abuse that discretion merely by deciding to credit Dr. Jaffe’s opinion while discounting other evidence because it was remote.

9 of Douglas’s “lumbrosacral spine” and saw “what appear[ed] to be

disc space narrowing at L5-S1 which [was] mild.” Tr. at 923.

Dr. Dirksmeier also ordered an MRI. Tr. at 923. After

reviewing the MRI, Dr. Dirksmeier diagnosed Douglas with

“symptomatic degenerative disc disease and secondary radiculitis

and trochanteric bursitis.” Tr. at 920. Dr. Dirksmeier did not

“recommend medicinal management or interventional pain

procedures,” but instead “significant weight loss . . . that

would require exercise on a regular basis.” Tr. at 920-921. He

suggested physical therapy or a gym membership. See Tr. at 920-

921.

Where a reviewing consultant bases his or her opinion on a

“significantly incomplete record,” the ALJ may not give that

opinion “any significant weight.” See Alcantara v. Astrue, 257

F. App'x 333, 334 (1st Cir. 2007) (per curiam) (unpublished);

see also Padilla v. Barnhart, 186 F. App'x 19, 22 (1st Cir.

2006) (per curiam) (unpublished); Bell v. Astrue, 2012 DNH 010,

21. However, the above rule is not absolute. As the Court

noted in Ferland v. Astrue, 2011 DNH 169,

[A]n ALJ may rely on [the opinion of a reviewing consultant] where the medical evidence postdating the reviewer's assessment does not establish any greater limitations, [citing Strout v. Astrue, No. CIV. 08- 181-B-W, 2009 WL 214576, at *8-9 (D. Me. Jan. 28, 2009), aff'd, No. CIVIL 08-181-B-W, 2009 WL 578546 (D. Me. Mar. 5, 2009), or where the medical reports of 10 claimant's treating providers are arguably consistent with, or at least not “clearly inconsistent” with, the reviewer's assessment. See Torres v. Comm'r of Social Security, Civil No. 04–2309, 2005 WL 2148321, at *1 (D.P.R. Sept. 6, 2005) (upholding ALJ's reliance on RFC assessment of non-examining reviewer where medical records of treating providers were not “in stark disaccord” with the RFC assessment). See also McCuller v. Barnhart, No. 02–30771, 2003 WL 21954208, at *4 n. 5 (5th Cir.2003) (holding ALJ did not err in relying on non-examining source's opinion that was based on an incomplete record where he independently considered medical records dated after the non- examining source's report).

Ferland, 2011 DNH 169, 11-12.

In this case, the ALJ determined that “[a]lthough

subsequent records were submitted” after Dr. Jaffe’s opinion

“they do not further limit [Douglas’] physical capacities.” Tr.

at 1013. Substantial evidence supports this conclusion.

In support of Dr. Jaffe’s opinion, the ALJ noted that the

opinion was consistent with Dr. Dirksmeier’s recommendation that

Douglas exercise regularly. See Tr. at 1013. Prior to

evaluating Dr. Jaffe’s opinion, the ALJ had reasoned that “[t]he

ability to exercise regularly at a gym is generally consistent

with an ability to perform at least light work.” Tr. at 1013.

The ALJ’s reasoning supports the conclusion that the impairments

diagnosed by Dr. Dirksmeier do not “establish any greater

[functional] limitations” than those recognized in Dr. Jaffe’s

opinion. See Ferland, 2011 DNH 169, 11. Dr. Jaffe assigned

11 Douglas an RFC allowing for light work. See Tr. at 579-580.

The ALJ may permissibly make the inference that regular

exercise at a gym is consistent with light work. “[A]lthough an

ALJ cannot ab initio interpret medical records to determine a

claimant’s RFC, he can ‘render[] common-sense judgments about

functional capacity based on medical findings.’” Delafontaine

v. Astrue, 2011 DNH 005, 26 (quoting Gordils v. Sec'y of Health

& Human Servs., 921 F.2d 327, 329 (1st Cir. 1990)). The ability

to regularly exercise, like the ability to “squat and rise from

a squat without difficulty, and step up and down without

difficulty,” “is not inscrutable medical terminology that

require[s] an expert to interpret.” See Guzman v. Colvin, 2016

DNH 075, 8. Inferring the capabilities required for exercise is

within the ken of a layperson.

This reveals why Douglas’s reliance on Bell v. Astrue, 2012

DNH 010, is misplaced. See Doc. No. 10-1 at 6, 8. In Bell,

several MRIs postdated the opinion of a reviewing consultant.

Bell, 2012 DNH 010 at 23. I ruled that the ALJ “improperly

concluded that [the consultant’s] opinion provided significant

evidence of Bell’s current physical capabilities by interpreting

subsequent raw medical data as consistent with that opinion.”

Id. Douglas argues that something similar happened here. See

Doc. No. 10-1 at 8. In the present case, however, the ALJ did 12 not just discuss MRIs. He drew commonsense inferences based on

Douglas’s treatment. See Tr. at 1013 (citing recommendation of

exercise and “limited use of medication” as support for Dr.

Jaffe’s opinion); cf. Moore v. Astrue, No. 1:09-CV-825, 2011 WL

1398480, at *4 (S.D. Ohio Apr. 13, 2011) (“treatment approach

was conservative, in the main prescribing medication and

physical therapy, which suggests that [claimant’s] back

condition is not substantially limiting”).

The ALJ also permissibly discounted opinions unfavorable to

his conclusion but made with the benefit of the MRI. See Bell,

2012 DNH 010, 25 (instead of ignoring evidence, “[t]he ALJ could

have discounted evidence showing that [claimant’s] condition was

more severe than what the cited evidence indicated”); Johnson v.

Comm'r, Soc. Sec. Admin., No. 13-CV-525-JL, 2015 WL 1119977, at

*6 (D.N.H. Mar. 12, 2015) (where ALJ discounted opinions, “it

was likewise appropriate for the ALJ to rely on the opinions of

a state agency consultant that ‘failed’ to take those

unsupported opinions into account”).

2. Other Opinion Evidence

Douglas next asserts that the ALJ erred by not addressing

three medical opinions: (1) the collected opinions of advanced

practice registered nurse (“APRN”) Amanda Wood-Friend; (2) the

opinion of Dr. Peter Bradley included in Douglas’s application 13 for state aid; and (3) the December 2011 opinion of treating

psychologist Dr. Jonathan Wagner. See Doc. No. 10-1 at 8-10.

Douglas’s arguments are ultimately meritless.

The ALJ must “consider” all medical opinions of record,

along with all relevant evidence received. 20 C.F.R. §§

404.1527(b), 416.927(b). The ALJ must also “evaluate every

medical opinion.” §§ 404.1527(c), 416.927(c). Where the ALJ

discounts a treating source’s opinion, the ALJ must address the

opinion. §§ 404.1527(c)(2), 416.927(c)(2). Further, “[t]he RFC

assessment must always consider and address medical source

opinions. If the RFC assessment conflicts with an opinion from

a medical source, the adjudicator must explain why the opinion

was not adopted.” SSR 96-8P, 1996 WL 374184, at *7 (July 2,

1996).

“Medical sources” include “acceptable medical sources,

[and] other health care providers who are not acceptable medical

sources.” See §§ 404.1502, 416.902; SSR 06-03P, 2006 WL

2329939, at *1 (August 9, 2006). “Licensed physicians” and

“[l]icensed or certified psychologists” are “acceptable medical

sources,” whereas nurse-practitioners are not “acceptable

medical sources.” §§ 404.1513(a), (d), 416.902(a), (d); SSR 06-

03P, 2006 WL 2329939, at *1-2. “[T]he adjudicator generally

should explain the weight given to opinions from [sources that 14 are not acceptable medical sources] or otherwise ensure that the

discussion of the evidence in the determination or decision

allows a claimant or subsequent reviewer to follow the

adjudicator's reasoning, when such opinions may have an effect

on the outcome of the case.” Id. at *6.

Douglas first claims that the ALJ committed error by not

addressing the opinions of APRN Wood-Friend. I find no error.

APRN Wood-Friend authored at least six “Physician/Clinician

Statement[s] of Capabilities” from 2008 to 2010. Tr. at 694-97,

722-725, 772-775, 777-80, 781-84, 786-789. The statements were

checkbox forms, and each indicated that Douglas was incapable

“of participating in work-related activities at this time.” Tr.

at 694-97, 722-725, 772-775, 777-80, 781-84, 786-789. In 2011,

APRN Wood-Friend also concurred with a July 2010 “functional

capacity evaluation” performed by another source. Tr. 951-56.

The ALJ mentioned only the 2011 concurrence, which he dismissed

because APRN Amanda Wood-Friend “is not an acceptable medical

source.” Tr. at 1014.

Although it would have been preferable for the ALJ to have

discussed APRN Wood-Friend’s statements and concurrence, I

decline to remand on this ground. Douglas did treat with APRN

Wood-Friend frequently and over a substantial period of time.

Nevertheless, because APRN Wood-Friend’s statements and 15 concurrence are conclusory, and even internally inconsistent at

times, the ALJ’s failure to discuss them “was harmless because

the check-box form[s] [were] so patently deficient that the

Commissioner could not possibly credit [them].” See Denham v.

Comm'r of Soc. Sec., No. 2:15-CV-2425, 2016 WL 4500713, at *3

(S.D. Ohio Aug. 29, 2016) (citing Wilson v. Comm'r of Soc. Sec.,

378 F.3d 541, 547 (6th Cir. 2004)).

Douglas’s next claim of error involves a 2012 “physical RFC

worksheet” allegedly completed by Dr. Peter Bradley in

connection with Douglas’s application for New Hampshire Aid to

the Permanently and Totally Disabled (“APTD”). See Doc. No. 10-

1 at 9. Douglas complains that “[t]he ALJ did not mention this

opinion and instead grouped all the evidence for APTD together.”

See id. I am unpersuaded by this argument. Although the ALJ

did not specifically discuss the work sheet, he did consider the

APTD application as a whole. This was not reversible error.

Last, Douglas argues that the ALJ ignored a December 2011

opinion from treating psychologist Jeffrey Wagner, Ph.D.

Although the ALJ did not specifically reference the December

2011 opinion in his decision, he did explain why he assigned

little weight to Dr. Wagner’s other opinions. Because Dr.

Wagner’s December 2011 opinion does not differ materially from

his earlier opinions and, as I explain below, the ALJ 16 supportably determined that Dr. Wagner’s other opinions were

entitled to little weight under these circumstances, the ALJ did

not commit reversible error in failing to discuss Dr. Wagner’s

December 2011 opinion.

3. Treatment of Dr. Wagner’s Opinions

Douglas next contends that the ALJ improperly discounted

Dr. Wagner’s other opinions that bear on her RFC. See Doc. No.

10-1 at 9-13. Douglas’s claim fails. A treating source’s

opinion is entitled to controlling weight so long as that

opinion is “well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence.” 20 C.F.R. §§ 404.1527(c)(2),

416.927(c)(2). Even if a treating source’s opinion deserves

less than controlling weight, it may be “entitled to deference.”

SSR 96-2p, 1996 WL 374188, at *4 (July 2, 1996).

To determine how much weight a treating source’s opinion

should receive, the ALJ must consider the “length of the

treatment relationship,” the “nature and extent of the treatment

relationship,” the opinion’s supportability and consistency with

the record as a whole, the treating source’s area of

specialization, if any, and any other relevant factors. See 20

C.F.R. §§ 404.1527(c), 416.927(c). Where the ALJ discounts a

treating source’s opinion, the ALJ is required to provide “good 17 reasons” for doing so. 20 C.F.R. §§ 404.1527(c)(2),

416.927(c)(2). The ALJ’s decision must be “supported by the

evidence in the case record, and . . . sufficiently specific to

make clear . . . the weight [the ALJ] gave to the treating

source’s medical opinion and the reasons for that weight.” SSR

96-2p, 1996 WL 374188, at *5; see also Jenness v. Colvin, 2015

DNH 167, 15 (“To meet the ‘good reasons’ requirement, the ALJ’s

reasons must be both specific and supportable.” (internal

citations and punctuation omitted)).

a. August 2011 opinion

Douglas appears to take issue primarily with the ALJ’s

rejection of Dr. Wagner’s August 2011 opinion. See Doc. No. 10-

1 at 11. In the August 2011 opinion, labelled a “treatment

update,” Dr. Wagner first recounts Douglas’s description of how

pain interferes with her daily life and then offers two

“model[s] of pain management.” See Tr. at 984. In assigning

“limited weight” to this opinion, the ALJ explained that “[Dr.

Wagner’s] notes are brief, with no mental status examination,

and no functional analysis to support a conclusion of inability

to engage in any substantial gainful activity. He also noted

that Dr. Wagner “confuse[d] reports of limitations from physical

pain, the province of a medical provider, with limitation from

psychological issues.” Tr. at 1013. 18 The ALJ’s decision to discount Dr. Wagner’s August 2011

opinion was both “supported by the evidence in the case record”

and “sufficiently specific.” The ALJ supportably described the

August 2011 opinion, and provided specific reasons for

discounting it. An ALJ may permissibly consider the depth of

analysis in an opinion, and whether objective evidence or

observation supports the opinion. See 20 C.F.R. §§ 404.1527(c),

416.927(c) (“The more a medical source presents relevant

evidence to support an opinion, particularly medical signs and

laboratory findings, the more weight we will give that opinion.

The better an explanation a source provides for an opinion, the

more weight we will give that opinion.”); Gregoire v. Colvin,

2015 DNH 035, 6-7 (lack of objective evidence suggests reliance

on “subjective complaints,” which is grounds for “reject[ing]

the opinion of a treating physician”). Additionally, given that

“the ALJ [is] simply not qualified to interpret raw medical data

in functional terms,” Nguyen, 172 F.3d at 35, an ALJ may

permissibly conclude that an opinion lacking functional analysis

is of limited utility in determining a claimant’s RFC.

b. July 2011 opinion

Douglas also describes Dr. Wagner’s July 2011 opinion, but

does not specifically contest the ALJ’s decision to discount it.

See Doc. No. 10-1 at 11-13. The July 2011 opinion provides a 19 much more detailed functional analysis of Douglas’s mental

impairments than the August 2011 opinion, see Tr. at 856-863,

and elicited a more detailed rejection from the ALJ, Tr. at

1007. Directing the thrust of Douglas’s argument at the ALJ’s

reasons for giving “very little weight” to the July 2011 opinion

still does not ultimately reveal reversible error.

In his July 2011 opinion, identified as a “Mental

Impairment Medical Source Statement (RFC & Listings),” Dr.

Wagner drew a number of functional conclusions, including that

Douglas was “unable to meet competitive standards” with respect

to five “mental abilities and aptitudes needed to do unskilled

work,” four “mental abilities and aptitudes needed to do

semiskilled and skilled work,” and one “mental abilit[y] [or]

aptitude[] needed to do particular types of jobs.” Tr. at 856-

60 (capitalization altered). Dr. Wagner further determined that

Douglas had “[m]arked” “restriction of activities of daily

living” and “marked” “difficulties in maintaining social

functioning” and “concentration, persistence or pace.” Tr. at

861.

The ALJ provided four interconnected reasons for giving

“very little weight” to Dr. Wagner’s July 2011 opinion: (1) the

limitations identified by Dr. Wagner “are inconsistent with the

medical record of evidence;” (2) the limitations “are not 20 supported by [Dr. Wagner’s] own cursory treatment notes” which

further contained "no mention of manic syndrome, autonomic

hyperactivity, sleep disturbance, or recurrent obsessions;” (3)

“[Dr. Wagner] only saw [Douglas] on two occasions, for one hour

each time;” and (4) “[Douglas] has a history of symptom

magnification or exaggeration, which may explain why she makes

significant complaints of anxiety, depression, and agitation yet

displays no such signs on objective examination.” Tr. at 1007.

Although this is a close question, the ALJ has given

reasons “sufficiently specific” and “supported by the evidence

in the case record.” See SSR 96-2p, 1996 WL 374188, at *5. The

ALJ’s first reason for rejecting Dr. Wagner’s July 2011 opinion,

that the opinion is “inconsistent with the medical record of

evidence,” Tr. at 1007, is generally a “good reason” if

adequately clear and supported. See, e.g., Couture v. Colvin,

2015 DNH 128, 7-8 (accepting ALJ’s decision to discount treating

physician’s opinion, which decision was based, in part, on

conflicting medical opinions); Figueroa v. Astrue, 2012 DNH 101,

15-16 (finding “good reasons” where ALJ discounted a treating

physician opinion on the basis of a conflicting opinion and

treating physician’s notes); Walter v. Colvin, No. 15-CV-194-LM,

2016 WL 659721, at *8–9 (D.N.H. Feb. 18, 2016) (finding no error

where ALJ discounted an apparently treating physician’s opinion 21 because of, inter alia, inconsistency between the opinion and

“medical records show[ing] cooperative behavior with good

grooming and pleasant behavior”).

The ALJ cited the evidence in his decision to support his

conclusion that Dr. Wagner’s July 2011 opinion was “inconsistent

with the medical record of evidence.” Tr. at 1007. The ALJ’s

citation constitutes a “sufficiently specific” direction to at

least two pieces of evidence. First, an overview of “[Douglas’]

objective clinical presentation” from 2011 through 2014, located

on the same page as the ALJ’s rejection of Dr. Wagner’s July

2011 opinion. Tr. at 1007. Second, the June 2010 opinion of

Dr. Paul Friedrichs, also discussed on the same page. Tr. at

1007. These two pieces of evidence represent substantial

evidence for the ALJ’s first justification for rejecting the

July 2011 opinion of Dr. Wagner.

The ALJ’s overview of clinical observations supports his

determination that “[o]verall, this review of [Douglas’]

objective clinical presentation in treatment is quite mild and

fails to support [non-extertional limitations].” Tr. at 1007.

The ALJ cites to record evidence in favor of his conclusion, for

example noting that “[i]n June 2011, [Douglas] presented with no

depression, anxiety, or agitation,” Tr. at 1007 (citing Tr. at

939), and that in “May 2013, she presented with appropriate 22 speech, normal thought processes, intact associations, no

psychotic determinants, good insight and judgment, good recent

and remote memory, and well-modulated affect” and received a

Global Assessment of Functioning (“GAF”) score of 60, Tr. at

1007 (citing Tr. at 1789).

The opinion of Dr. Friedrichs also supports the ALJ’s

rejection of Dr. Wagner’s July 2011 opinion. The ALJ assigned

“significant weight” to “the opinion of treating physician P.

Friedrichs, M.D.” Tr. at 1007. In the June 2010 opinion,

labeled a “Medical Source Statement of Ability To Do Work-

Related Activities (Mental),” Dr. Friedrichs checked boxes

indicating that Douglas’s impairments had no effect on her

“ability to understand, remember, and carry out instructions,”

nor her “ability to interact appropriately with supervision, co-

workers, and the public, as well as respond to changes in the

routine work setting.” Tr. at 609-610 (capitalization altered).

Dr. Friedrichs’s conclusions stand in stark contrast to Dr.

Wagner’s. Where medical opinions conflict, the ALJ must weigh

several factors to determine which opinion to credit. See 20

C.F.R. § 404.1527(c); Guzman, 2016 DNH 075, 15. The ALJ decided

to credit Dr. Friedrichs’s opinion because “[Dr. Friedrichs] was

[Douglas’] primary treating source as of the time of his

assessment . . . [and] I find [his] opinion reasonable, 23 supported by [Douglas’] erratic treatment history and

consistently mild objective clinical presentation, and supported

in light of the inconsistencies in [Douglas’] testimony

concerning her alleged symptoms.” Tr. at 1007. Here, the ALJ

did not err in crediting Dr. Friedrichs’s opinion. See Couture,

2015 DNH 128 at 7-8 (ruling that conflict among medical opinions

supported ALJ’s decision to discount treating physician’s

opinion).

The second reason cited by the ALJ for giving “very little

weight” to Dr. Wagner’s July 2011 opinion is that the opinion is

“not supported by [Dr. Wagner’s] own cursory treatment notes.”

Tr. at 1007. This reason qualifies as a “good reason” if

adequately supported. See Brown v. Colvin, No. 14-CV-256-JL,

2015 WL 4416971, at *4 (D.N.H. July 17, 2015) (ruling ALJ

permissibly discounted opinion where, inter alia, it was

inconsistent with treatment note); Marshall v. Colvin, 2014 DNH

180, 43-44 (implying treatment notes based primarily on

“subjective reports” may not substantiate opinion). There is

adequate support here.

The ALJ cites to three treatment notes in his discussion of

the July 2011 opinion, including the two notes dated prior to

the opinion. Tr. at 1007 (citing Tr. at 854-55, 864).

Citations elsewhere in the opinion indicate that the ALJ 24 considered five other treatment notes from Dr. Wagner. See Tr.

at 1007, 1013. The ALJ could permissibly infer that these

treatment notes largely contain Douglas’s reports, as opposed to

objective observation or examination. It is not error for the

ALJ to discredit an opinion on that ground. See Gregoire, 2015

DNH 035, 6-7; Marshall, 2014 DNH 180, 43-44.

Third, the ALJ faults Dr. Wagner’s July 2011 opinion for

being based on two, one-hour meetings with Douglas. Tr. at

1007. Length of treatment and frequency of examination are

indeed legitimate grounds for evaluating a medical opinion. 20

C.F.R. §§ 404.1527(c), 416.927(c). In this instance, however,

the ALJ failed to discuss Dr. Wagner’s December 2011 opinion,

which was based on three additional meetings with Douglas. See

Tr. at 1076-1078 (treatment notes corresponding to visits). Nor

did the ALJ explicitly take into account the four visits that

occurred after Dr. Wagner’s December 2011 opinion. Id. at 1536-

37. There is no indication that Dr. Wagner materially changed

his opinion after the additional visits in 2011 or 2012. Cf.

Jenness, 2015 DNH 167 at 17-18 (finding error where ALJ

criticized a treating source’s “reliance upon [claimant’s]

subjective reports without also noting” a later opinion that

reached the same conclusions with the benefit of objective

examination). The ALJ’s appeal to the length or frequency of 25 treatment thus does not qualify in this case as a “good

reason[]” for rejecting Dr. Wagner’s July 2011 opinion. See SSR

96-2p, 1996 WL 374188, at *5.

Fourth and last, the ALJ offers Douglas’s alleged “history

of symptom magnification or exaggeration” as a reason for

discounting Dr. Wagner’s July 2011 opinion. Tr. at 1007.

Several pages later, the ALJ substantiates this claim with

evidence that casts doubt on Douglas’s credibility, including:

(1) a June 2011 consultation “where [Douglas] was noted to

exhibit a slightly awkward limp . . . [that] was noted to

improve when walking out” and “[Douglas] was noted to exhibit

exaggerated withdrawal to even light touch, but then exhibited

normal passive range of motion,” Tr. at 1012 (citing Tr. at 922-

23); and (2) Douglas claiming “self-employment” on a disability

application dated after September 2011, but “den[ying] any such

work” at the hearing, Tr. at 1012 (citing Tr. 1392, 1029-30).3

An adequately supported claim of exaggeration can constitute or

complement a “good reason” for rejecting a treating source’s

opinion. Cf. Moore, 2011 WL 1398480, at *5-6 (finding no error

3 The ALJ cites to an Appeals Council order that notes Douglas’s earnings in 2010 and “subsequent applications” describing self- employment that ended in July 2010. Tr. at 1392. At the 2014 hearing, Douglas denied working in 2010. Tr. at 1029-30.

26 where ALJ discounted treating psychiatrist opinion, in part

“because it was based largely on [claimant’s] self-reported

symptoms” and claimant had a history of drug-seeking behavior).

The ALJ adequately supported his conclusion here.

In summary, the ALJ had multiple good reasons for assigning

little weight to Dr. Wagner’s opinion. Under these

circumstances, the mere fact that Dr. Wagner saw Douglas on more

occasions than the ALJ’s decision acknowledges does not

undermine my conclusion that substantial evidence supports the

ALJ’s decision to discount Dr. Wagner’s opinions.4

4 Douglas also faults the ALJ for not considering the limitations reflected in examining psychologist Eric Niler’s opinion in combination with the limitations recognized in Dr. Friedrichs’s and Dr. Wagner’s opinions. See Doc. No. 10-1 at 15. Dr. Niler examined Douglas in March 2012 and prepared a “psychiatric evaluation.” Tr. at 1258, 1260 (capitalization altered). In pertinent part, he determined that Douglas had suffered a “moderate” functional loss in “social interactions” because “[s]he stated that she no longer spends time with her friends.” See Tr. at 1259 (capitalization altered). He further opined that Douglas would “seldom” have a functional loss in “concentration, persistence, [or] pace” at work. See Tr. at 1259 (capitalization altered). Dr. Niler ultimately concluded that Douglas’s “mental health issues, in and of themselves, are [not] preventing her from working.” Tr. at 1260. Even though the ALJ did not explicitly evaluate Dr. Niler’s opinion, he was clearly aware of it. See Tr. at 1006, 1014 (describing the opinion at step two and referencing it in the RFC assessment). Further, Dr. Wagner found an even greater limitation than Dr. Niler, see Tr. at 861 (noting “[m]arked]” “[d]ifficulties in maintaining social functioning”), and the ALJ permissibly discounted Dr. Wagner’s opinion. For largely similar reasons, the ALJ could have permissibly discounted the limitation in Dr. Niler’s opinion. To the extent Dr. Niler’s or Wagner’s opinions 27 4. Consideration of All Impairments

a. Step two severity analysis

Douglas argues that the ALJ erred in “f[inding] no severe

mental health impairments” at step two of the ALJ’s sequential

analysis. See Doc. No. 10-1 at 14. The ALJ did find some

physical impairments—“obesity and degenerative disc disease of

the lumbar spine”—but concluded that “[Douglas’s] medically

determinable mental impairments, considered singly and in

combination, do not cause more than minimal limitation . . . and

are therefore non-severe.” Tr. at 1005.

Douglas’s argument cannot succeed because “[t]his court has

consistently held [] that an error in describing a given

impairment as non-severe is harmless so long as the ALJ found at

least one severe impairment and progressed to the next step of

the sequential evaluation.” Chabot v. Acting Comm’r of Soc.

Sec., 2014 DNH 067, 23-24 (citing Hines v. Astrue, No. 11-CV-

184-PB, 2012 WL 1394396, at *12-13 (D.N.H. Mar. 26, 2012);

Lawton v. Astrue, No. 11-CV-189-JD, 2012 WL 3019954, at *7

conflicted with the opinion of Dr. Friedrichs, it was a conflict for the ALJ to resolve. See Irlanda Ortiz, 955 F.2d at 769. Though Dr. Friedrichs only opined on Douglas’s ability to interact socially in the workplace, as opposed to her general “social interactions” or “social functioning,” see Tr. at 610, it is permissible for an ALJ to focus on a claimant’s functioning in the workplace. I find no grounds for remand. 28 (D.N.H. July 24, 2012). At step two, the ALJ found that Douglas

had two impairments, and he “progressed to the next step of the

sequential evaluation.” See Chabot, 2014 DNH 067, 23.

Accordingly, I find no grounds for remand at step two.

b. RFC analysis

Douglas makes three additional arguments related to the

ALJ’s formulation of Douglas’s RFC. First, she argues that the

ALJ erroneously “did not consider [Douglas’] mental health

impairments in combination” in calculating her RFC. See Doc.

No. 10-1 at 14. Douglas claims that the functional limitations

in Dr. Friedrichs’s June 2010 opinion and Dr. Wagner’s opinions

should have been considered in combination. See id. at 15.

Second, the ALJ further erred by “not includ[ing] any mental

health limitations in the RFC.” See id. at 14. Third and last,

she asserts that the ALJ committed error when he “failed to

consider the limiting effects from [Douglas’] radiculopathy

symptoms” and did not “account” for those symptoms in the RFC.

See id. at 15.

In assessing whether a claimant is disabled, an ALJ must

consider “the combined effect of all of a claimant's

impairments,” regardless of whether those impairments are

classified as “severe.” McDonald v. Sec’y Health & Human

Servs., 795 F.2d 1118, 1126-27 (1st Cir. 1986); see 42 U.S.C. § 29 423(d)(2)(B); 20 C.F.R. §§ 404.1523, 416.923. It is “simply a

matter of common sense that various physical, mental, and

psychological defects, each nonsevere in and of itself, might in

combination, in some cases, make it impossible for a claimant to

work.” McDonald, 795 F.2d at 1127. An ALJ must therefore

“consider the combined effect of all of [a claimant’s]

impairments without regard to whether any such impairment, if

considered separately, would be of sufficient severity.” 20

C.F.R. 404.1523; see SSR 96-8P, 1996 WL 374184, at *5 (July 2,

Nonetheless, an ALJ has “considerable latitude in how” he

considers non-severe impairments in calculating a claimant’s

RFC. See Chabot, 2014 DNH 067, 25. Generally, merely

mentioning a non-severe impairment is sufficient to show

consideration. See Hines, 2012 WL 1394396, at *13, (“[T]he ALJ

noted the medical evidence of [claimaint’s] fibromyalgia in his

decision. Thus, there is evidence in the record to suggest that

the ALJ did consider [claimant’s] fibromyalgia when he

determined her RFC, and nothing to suggest that he did not.”

(citation omitted)), report and recommendation adopted sub nom.,

Hines v. U.S. Soc. Sec. Comm'r, No. 11-CV-184-PB, 2012 WL

1393063 (D.N.H. Apr. 20, 2012); Baker v. Astrue, No. 10-CV-454-

SM, 2011 WL 6937505, at *9 (D.N.H. Nov. 15, 2011) ("ALJ noted 30 the medical evidence of Baker's shoulder condition in his

decision and also acknowledged her complaints of shoulder

pain.”), report and recommendation adopted, No. 10-CV-454-SM,

2012 WL 10284 (D.N.H. Jan. 3, 2012).

The ALJ’s decision evinces adequate consideration of

Douglas’s mental impairments in forming the RFC. At step two,

the ALJ extensively discussed Douglas’s mental impairments. He

reviewed her subjective complaints and objective presentations,

Tr. at 1005, 1007, referenced multiple mental health opinions,

Tr. at 1007-08, and considered the “paragraph B” categories used

“for evaluating mental disorders,” Tr. at 1008-09. The

extensive discussion of mental impairments at step two, along

with two mentions of mental health opinions in the RFC

assessment, satisfy the ALJ’s duty to “consider the combined

effect of all of [a claimant’s] impairments.” § 404.1523; see

Martel v. Comm’r of Soc. Sec., 2013 DNH 157, 32 (“ALJ properly

considered depression when making his RFC finding” by citing to

it twice at step two and “permissibly disregard[ing]” it).

Note that the ALJ did not commit the error of the ALJ in

Forni v. Barnhart, 2006 DNH 120. In Forni, “[the ALJ]

determined that [claimant’s] mental impairment was not severe

but that his asthma and carpal tunnel syndrome were severe. He

then completely (and improperly) dropped [claimant’s mental 31 impairment] from his analysis.” Forni, 2006 DNH 120, 23. The

ALJ in the present case mentioned two mental health opinions in

the RFC evaluation. Tr. at 1013-14; see also Morse v. Colvin,

2015 DNH 055, 19 (that the ALJ evaluated all mental health

opinions in step two and all physical health opinions in its RFC

formulation “supports an inference that the ALJ believed that

opinions on [claimant’s] non-severe mental impairments were

irrelevant to his analysis beyond step two”).

Douglas’s remaining claims in this section do not amount to

reversible error. First, though there is tension between the

functional conclusions of Dr. Friedrichs’s June 2010 opinion and

the list of diagnoses contained therein, conflicts in the

evidence are for the ALJ to resolve. See Irlanda Ortiz, 955

F.2d at 769. Second, no error arises from the RFC not

reflecting the functional limitations described in Dr. Wagner’s

opinions. The ALJ gave “good reasons” for rejecting Dr.

Wagner’s representative July 2011 opinion. See 20 C.F.R. §§

404.1527(c)(2), 416.927(c)(2). Third, with respect to Douglas’s

radiculopathy, the ALJ referred to the condition in formulating

Douglas’s RFC. Tr. at 1011. Besides noting her symptoms,

Douglas does not connect her radiculopathy to any aspect of the

RFC. I thus find no error.

32 B. Consideration of VE Opinion Evidence

Douglas also argues that the ALJ improperly relied upon

certain vocational expert testimony in concluding that Douglas

was not disabled. See Doc. No. 10-1 at 15. In this case, the

ALJ held a hearing on September 7, 2011. Vocational expert

Howard Steinberg testified at that 2011 hearing. See Tr. at 60-

65. After the case was remanded, however, another hearing was

held on June 16, 2014. A different vocational expert, Jack Bop,

testified at that 2014 hearing. See Tr. at 1047-1050. But, in

his August 2014 decision, the ALJ relied upon VE Steinberg’s

testimony from the 2011 hearing. In particular, the ALJ stated

that, “[a]t the previous hearing, the vocational expert

testified that the demands of the jobs of cashier and companion

would not exceed the residual functional capacity above.” Tr.

at 1015. The ALJ further relied upon VE Steinberg’s 2011

testimony regarding the number of available jobs (i.e. 615,000)

that Douglas could perform given her RFC.

Douglas contends that it was improper for the ALJ to rely

upon VE Steinberg’s 2011 testimony for two reasons. First,

according to Douglas, “the number of jobs available . . . could

have reasonably changed” between 2011 and 2014. See Doc. No.

10-1 at 16. Second, she argues that she did not have adequate

notice that the ALJ would use that 2011 testimony, or an 33 adequate opportunity to cross-examine VE Steinberg. See id. at

16-17.

I need not address Douglas’s first argument. As the

Commissioner points out, the ALJ resolved this case at step

four, and only proceeded to step five in the alternative. See

Doc. No. 13-1 at 20; Tr. at 1015. The number of jobs in the

national economy is not relevant to the step four determination.

See 20 C.F.R. §§ 404.1560(b)(3), 416.960(b)(3).

Douglas’s second argument is simply unpersuasive. Douglas,

who was represented by counsel, had sufficient notice that the

ALJ might use testimony from the 2011 hearing. The Commissioner

notes that the ALJ identified the hypothetical directed to the

VE at the 2014 hearing as “hypothetical number five.” See Doc.

No. 13-1 at 20; Tr. at 1015. This reasonably indicates that the

ALJ viewed the second hearing as continuation of the first.

Further, it would be unusual for an ALJ to ask just one question

and then conclude the meeting, especially when Douglas knew the

ALJ had posed four hypotheticals at the 2011 hearing. Douglas

should have realized that the ALJ was not proceeding as if the

slate had been wiped clean.

In addition to sufficient notice, Douglas had sufficient

opportunity to cross-examine the VE. At the 2011 hearing,

Douglas had every opportunity to cross-examine the VE on his 34 opinions, particularly his opinions on past relevant work. The

record reveals no questions. Tr. at 60-61, 65. Likewise,

Douglas could have asked the VE at the 2014 hearing about his

opinions on matters testified to at the prior hearing. Again,

the record reveals no such questions.

Where there has been no change in RFC, courts have not

required the ALJ to provide an opportunity to cross-examine the

prior VE. See, e.g., McKnight v. Astrue, 340 F. App'x 176, 181

(5th Cir. 2009) (unpublished) (“Since the ALJ did not change his

RFC assessment after remand, the ALJ's failure to initiate new

hearings or submit the vocational expert to renewed cross-

examination is not prejudicial because the vocational expert's

interrogatories had been entered into the record without

objection from the claimant.”); Wisniewski v. Comm'r of Soc.

Sec., 210 F. App'x 177, 180 (3d Cir. 2006) (unpublished)(where

there is no change in circumstances, “the administrative law

judge could properly rely a second time on the testimony of the

vocational expert”); see also Savat v. Astrue, No. CIV. A. 07-

1752, 2009 WL 580429, at *6 n.10 (W.D. La. Mar. 5, 2009) (“VE

testimony from a prior hearing may properly support the

Commissioner's decision when, as here, the claimant had an

opportunity to cross-examine the expert.”). The change in RFC

on remand in this case was slight and does not entitle Douglas 35 to cross-examine the VE who testified at her first hearing.

Compare Tr. at 1010 with Tr. at 30.

Last, fairness does not require further cross-examination.

Douglas had two opportunities to cross-examine, and one

opportunity to raise this issue with ALJ. If anything, fairness

counsels against granting additional opportunities where

previous opportunities went unused.

IV. CONCLUSION

For the foregoing reasons, I grant the Commissioner’s

motion to affirm (Doc. No. 13) and deny Douglas’s motion to

reverse (Doc. No. 10). The clerk is directed to enter judgment

accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

September 30, 2016

cc: Laurie Smith Young, Esq. Michael T. McCormack, Esq.