UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Tammy L. Hines
v. Case No. ll-cv-262-PB Opinion No. 2012 DNH 121 Michael As true. Commissioner Social Security Administration
MEMORANDUM AND ORDER
Tammy Hines seeks judicial review of a decision by the
Commissioner of the Social Security Administration denying her
applications for disability insurance and supplemental security
income benefits. Hines contends that the Administrative Law
Judge ("ALJ") who considered her applications erred in assessing
her residual functional capacity ("RFC") and improperly relied
upon the Medical-Vocational Guidelines to determine that she was
not disabled. For the reasons provided below, I affirm the
Commissioner's decision.
I. BACKGROUND1
Hines applied for disability benefits on February 21, 2007,
when she was twenty-nine years old. She initially alleged a
disability onset date of September 19, 2005, due to anxiety,
1 The background information is taken from the parties' Joint Statement of Material Facts. See L.R. 9.1(b). Citations to the Administrative Transcript are indicated by "Tr." asthma, and knee pain. She subsequently amended the disability
onset date to February 19, 2007. Hines is a high school
graduate who worked as a cashier, an amusement park ride
operator, and a folder maker.
A. Medical History
Hines received treatment at the Nashua Area Health Center
("NAHC") beginning in December 2003, when she was diagnosed with
mild persistent asthma. On September 14, 2005, she called the
NAHC to report chest pains. A doctor refilled her asthma
prescriptions. A week later, Hines went to the emergency room
("ER") complaining of intermittent sharp chest discomfort. The
diagnosis was atypical chest pain. When she followed up with
Dr. Bundschuh at the NAHC five days later, she reported that she
had continued to experience similar chest pain since the ER
visit. She also complained that symptoms of her asthma had
increased and that she had to use her inhaler more frequently.
She was assessed with atypical chest pain that appeared to be
musculoskeletal in origin.
Hines presented to the ER again the following month due to
dizziness and chest pain. The impression was chest wall pain
and she was advised to apply heat to the area.
On December 19, Hines informed Dr. Bundschuh that she was
taking Singulair for her asthma, but still had to use her
2 inhaler three to four times a day. She stated that her asthma
prevented her from working. At a follow-up appointment on May
1, 2006, Dr. Bundschuh noted that Hines was doing well with her
mild persistent asthma as long as she had access to medications.
Later that same month, Hines returned to Dr. Bundschuh. He
again assessed stable asthma and recommended stress management.
On June 26, 2006, Hines went to the NAHC to follow up on an
ER visit for asthma exacerbation. She complained of
intermittent chest pressure that occurred when she was stressed.
On October 18, Hines returned to the NAHC for a health
maintenance visit. The impression was a "well woman" with mild
persistent asthma and psychological stress. The following
month, however, Hines again complained of right chest pain that
she rated as six on a scale of one to ten. The assessment was
bronchitis.
On December 26, Hines went to the ER complaining of chest
pain. It was noted that Hines had made multiple visits to the
ER for atypical chest pain. Thistime she also complained of
shortness of breath and palpitations. The final diagnosis was
chest wall pain and dehydration. Two days later, she followed
up with Carol Manning, a nurse practitioner at the NAHC, and
rated her chest pain as seven out of ten. The pain was
3 reproduced with pushing on the chest wall directly over the
sternum. The assessment was costochondritis.
On January 11, 2007, Hines again went to the ER complaining
of chest pain. She also reported experiencing occasional
shortness of breath over the past few months. The diagnosis was
chest wall pain.
On January 17, Hines called the NAHC, stating that she was
still having chest pains with any exertion. Hines reported that
she could not afford the medication that she had been
prescribed. The next day. Nurse Manning assessed Hines with
unspecified abdominal pain and advised her to take Nexium. She
also noted that Hines was previously diagnosed with
costochondritis and given prescriptions that she never filled.
She had also been in the ER twice, but failed to follow the
recommended treatment plans.
On February 1, Hines was again seen at the NAHC for her
chest and abdominal pain. She was assessed with unspecified
abdominal pain, most likely due to gastritis. She reported
little improvement with Nexium. Approximately two weeks later,
however, she stated that Nexium was making her feel better. She
also reported experiencing anxiety for the past month. Hines
said she had blacked out the day before and was angry and
yelling at people. Upon examination, Hines appeared anxious,
4 but her judgment, insight, and memory were intact. The
assessment was mild persistent asthma, unspecified abdominal
pain, knee pain, and generalized anxiety disorder.
The following month, Hines returned to the ER, complaining
of chest pain and abdominal pain. She also reported having had
shortness of breath while going up and down stairs. She stated
that she experienced "the shakes" due to her anxiety and that
she was on Paxil. The diagnosis was abdominal pain.
Hines went to the ER again on May 1, 2007, for chest pain.
She stated that she experienced sharp chest pain with a racing
heart when sleeping. She reported stress at home "mostly
because she has to watch her dog all day and the dog needs to go
outside every two hours." Tr. 387. The impression was atypical
chest pain and anxiety. Three days later, Hines called the NAHC
complaining of anxiety and chest pain.
On May 8, Hines underwent a comprehensive psychological
profile performed by Dr. Francis Warman, a psychologist. Dr.
Warman observed that Hines was nervous and anxious and had some
mild stuttering in her voice. Hines reported having panic
attacks three or four times a day and experiencing chest pain,
shortness of breath, heart palpitations, occasional blackouts,
and occasional bouts of screaming. She reported having had
5 difficulty sitting in school and paying attention, and noted
that she was in special education through high school.
Dr. Warman's diagnosis was panic disorder without
agoraphobia. He noted that Hines appeared to have difficulties
with concentration and believed that further testing for
cognitive problems might be warranted. He also stated that
there was some indication of a learning disability, particularly
in the areas of computation and distractibility. According to
Dr. Warman, Hines was able to understand and remember simple
instructions and to interact appropriately and communicate
effectively with others. In light of her distractibility and
hyperactivity. Dr. Warman noted that it would be difficult, but
not impossible, for Hines to maintain her concentration and
focus in work situations. In addition, he opined that her
frequent panic attacks would make it difficult, but not
impossible, for her to maintain attendance and follow schedules
at work.
On May 9, 2007, Hines was seen at the NAHC to follow up
regarding her chest pain. She was still having anxiety and
rated her chest pain as five out of ten. Nurse Manning
diagnosed generalized anxiety disorder. She noted that Hines
had made many visits to the ER and NAHC for the same problem,
and that numerous tests and cardiac workups showed no problem
6 other than anxiety. Hines admitted that anxiety was taking over
her life and that she understood that there was nothing
seriously wrong when she had her attacks. Nurse Manning
increased Hines's dosage of Paxil and prescribed Adavan for
emergency management of panic attacks. She also referred Hines
to the Community Council of Nashua for counseling.
The following day. Nurse Manning wrote a letter addressing
Hines's medical issues as they related to her ability to work.
She opined that Hines's main issue was severe anxiety, which
frequently caused panic attacks. She also indicated that Hines
had moderately severe asthma and was frequently symptomatic.
Dr. William Jamieson completed a psychiatric review on May
17, 2007. He opined that Hines had mild restrictions in her
activities of daily living; no difficulties in maintaining
social functioning; moderate difficulties in maintaining
concentration, persistence, or pace; and no episodes of
decompensation. In his mental RFC statement. Dr. Jamieson
concluded that Hines could understand, remember, and carry out
simple instructions; maintain attention in a simple job setting
with clear expectations and reasonable supervision; maintain
attendance and follow a schedule, despite some disruption due to
anxiety symptoms; sustain an ordinary routine without special
7 supervision; adequately relate with others; and respond
appropriately to routine work changes.
On May 30, Hines presented to the NAHC complaining of
dizziness, a headache, and left ear pain. Nurse Manning
assessed generalized anxiety disorder (improved on Paxil) and
minor vertigo. Five days later, Hines returned to the NAHC for
dizziness and neck pain. The impression was minor vertigo, and
Hines's medication was increased. Two days later, Hines still
reported feeling dizziness and chest pain, but denied neck pain.
She was referred to an ear, nose, and throat specialist for
minor vertigo.
Hines went back to the NAHC on July 9 to follow up about
her anxiety. She reported feeling better. The assessment was
generalized anxiety disorder. Hines felt that her anxiety was
under good control. It was also noted that her mild persistent
asthma was generally under good control.
On July 31, Hines went to the ER, complaining of shortness
of breath with a persistent cough for several days prior to the
visit. She also reported left mid-back pain with inspiration.
The symptoms were attributed to asthma exacerbation. Hines felt
better after receiving an Albuterol nebulizer treatment.
Hines returned to the ER on August 17, complaining of
shortness of breath that had been severe over the previous two hours, and chest wall discomfort associated with a non
productive cough. She reported using her inhaler approximately
three to four times a day. The final diagnosis was asthma.
Dr. Sabah Hadi, a consulting psychiatrist, filled out a
mental RFC evaluation on January 11, 2008. Dr. Hadi concluded
that Hines had no limitations with respect to performing simple
work; mild limitations in her ability to interact with others;
and moderate limitations in her ability to respond to usual work
situations and work changes. "Moderate" was defined on the form
as "more than a slight limitation in this area but the
individual is still able to function satisfactorily." Tr. 428.
On March 10, 2008, Hines went to the ER complaining of
chest pain. She felt like her heart was racing and she was
short of breath. The impression was right flank pain. Hines
was given Vicodin for the pain and advised to heat the area. At
a follow-up appointment at the NAHC on March 19, Hines rated her
chest pain as nine out of ten. The assessment was
costochondritis.
On May 8, Hines returned to the NAHC, complaining of chest
pain (again rated as nine out of ten), dizziness, and back
numbness. The assessment was unspecified chest pain. Three
days later, Hines presented to the ER due to chest wall pain.
She was told to follow-up with Nurse Manning. In June, she
9 again went to the ER due to chest pain. The impression was left
On June 5, Nurse Manning filled out a medical source
statement on behalf of Hines. She opined that Hines had a
slight limitation in her ability to understand, remember, and
carry out short and simple instructions; no limitation in her
ability to make judgments on simple tasks; no limitation in her
ability to interact with others; and a slight limitation in her
ability to respond to work pressures and routine changes. Nurse
Manning noted that Hines was experiencing episodes of severe
anxiety with unpredictable triggers, and had mild asthma that
worsened during anxiety attacks. She opined that Hines was
nonetheless capable of gainful employment, but that her
conditions possibly could cause her to be absent from work three
or more times per month, depending upon how well her anxiety was
controlled.
Based on a referral from Nurse Manning, Hines was seen at
the Community Council of Nashua on July 2. Hines reported that
her panic attacks began after a car accident two years earlier.
Since then, she only felt safe using the city bus as a means of
transportation. Hines described experiencing a heightened
startle response, a racing heart, difficulty breathing, shaking,
and feeling as though she would fall to the ground. She felt
10 overwhelmed and easily distracted. At times she would stop
herself from leaving her home. She complained of decreased
sleep, appetite, memory, and concentration. She also reported
becoming agitated easily.
During her mental status evaluation, Hines's behavior,
attitude, eye contact, and speech were within normal limits.
Her thought process was normal and insightful. Hines reported
fleeting thoughts of self-harm without suicidal intent and no
actions on the self-harm thoughts. Her mood reflected anxiety
and her affect was appropriate to her mood. The intellectual
functioning test showed that she had a short attention span with
an average intelligence. Her memory was impaired in immediate
and recent recall. She was oriented in all spheres and her
judgment appeared to be adequate. Her Global Assessment of
Functioning ("GAF") score was 58.2
The next day, Hines went to the NAHC complaining of ongoing
numbness in her arms, hands, legs, and feet. The assessment was
that the numbness was likely due to anxiety.
2 A GAF of 51-60 indicates " [ni] oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers)." Diagnostic and Statistical Manual of Mental Disorders at 34 (4th ed. 2 000) ("DSM-IV").
11 Approximately a month later, Hines went to the ER due to
chest pain. The impression was chest wall pain. She was
advised to take Ibuprofen and to heat the area.
On August 26, Nurse Manning wrote that Hines suffered from
severe anxiety and mild persistent asthma. She noted that Hines
had fairly frequent exacerbations and that Hines felt she was
unable to work.
Hines received counseling from Maureen Hayes, a licensed
mental health counselor at the Community Council of Nashua, on
six occasions between July and November 2008. On September 3,
Hayes filled out a medical source statement. She noted that
Hines had disorganized thinking, poor concentration, and poor
focus. According to Hayes, Hines was moderately limited in her
ability to understand, remember, and carry out short, simple
instructions; make judgments on simple work-related decisions;
interact appropriately with the public, supervisors, and co
workers; and respond to work pressures and routine changes in a
work setting. "Moderate" was defined on the form as "more than
a slight limitation in this area but the individual is still
able to function satisfactorily." Tr. 520. The counselor noted
that dealing with changes increased Hines's anxiety and pain.
She also noted that Hines experienced isolation in social
interaction and that monitoring was needed for personal care.
12 Hayes opined that Hines was not capable of gainful employment on
a sustained basis at that time.
Hines was discharged from the Community Council of Nashua
three months later. Her treatment was completed with her goals
mostly met. It was noted that Hines attended appointments as
scheduled and worked on developing skills for reducing the
intensity and severity of her symptoms. Hines reported a
noticeable reduction in symptoms.
Hines returned to the Community Council of Nashua on March
24, 2009, a week after the death of her husband, upon referral
from Nurse Manning. Hines reported suffering from chronic worry
and felt like she was unable to express herself. She felt
isolated and lonely, and lacked energy, interest, or motivation.
She also complained of sleep and appetite disturbances,
increased physical pain and panic attacks, a rapid heartbeat,
chest pain and pressure, shortness of breath, tingling in her
arms and legs, irritability, agitation, anger, a lack of memory,
and a lack of concentration. When in a social setting, she
would completely shut down. A mental status evaluation was
essentially normal, except her intellectual functioning showed a
short attention span with a below average to average
intelligence. It was noted that her memory was impaired in
immediate and recent recall. Her GAF score was 60. She
13 subsequently received counseling from Maureen Hayes on six
occasions between April and September 2009.
On April 13, 2009, Hines was seen by Dr. Lawrence Jasper, a
consulting psychologist, for a comprehensive psychological
examination. Hines reported that a month prior to the
evaluation, her 66-year-old husband of the past seven years had
died. She stated that she had been diagnosed with depression
about a month prior to the examination. Hines explained that
the depression began when she was a child, but it grew worse
during the six months before her husband died. Hines reported
that she was coded as educationally handicapped in school
because she was a very slow learner and had attention deficit
hyperactivity disorder. She believed that she could not work
because of pain, anxiety, and excessive irritability.
On mental status examination, Hines performed in the
impaired range on the tests of immediate and intermediate verbal
memory, which was consistent with Hines's report of having
required a one-to-one aide in order to interpret classroom
instructions. Her speech was articulate and grammatical, her
eye contact was good, affect was appropriate, thinking was goal
directed, her intelligence appeared average, and her mood was
within normal limits. Hines described her anxiety level as
elevated in response to extensive cognitive demands. Dr. Jasper
14 assessed that Hines was able to understand and remember simple
instructions; interact appropriately and communicate effectively
with family, friends, her landlord, and fellow employees;
sustain attention and complete simple tasks; and tolerate
stresses associated with a typical work setting.
On April 26, 2009, Hines was brought to the ER by ambulance
because she was having sharp, severe chest pain. Diagnostic
studies were essentially unremarkable. The impression was
costochondritis, improved after administration of Toradol.
Hines underwent a psychiatric evaluation by Dr. Jonathan
Sobin on June 5, 2009. She primarily complained of symptoms of
panic disorder (two to three episodes per week) that were
sometimes triggered by asthma attacks. Her panic attacks
manifested as a shortness of breath, tightness in her chest,
pain, shaking, blackouts, and a fear of completely losing
control. Hines reported nervous reactions to being among people
she did not know well and also complained of insomnia. Dr.
Sobin opined that Hines's degree of functional loss was between
slight and moderate in daily activities, slight in social
interactions, slight in task performance, and moderate in stress
reaction. His diagnostic impression was panic disorder with
agoraphobia.
15 At a mental health counseling session on December 1, 2009,
Counselor Hayes noted that Hines had an increased sense of
sadness secondary to the loss of her husband. Hines saw Hayes
for mental health counseling again on December 30, 2009. On
March 23, 2010, Hines requested that her case be closed.
On June 4 and 18, 2010, Dr. Jasper, an examining
consultant, conducted an intelligence profile and
neuropsychological test battery. Dr. Jasper noted that Hines
displayed an unusual lack of insight for an adult and that she
did not appear to be a fully accurate historian. She reported
that panic attacks manifested in motoric shakiness, difficulty
breathing (which might escalate to an asthma attack), chest
pain, a rapid heartbeat, and numbness and tingling in her left
arm and right leg from the kneecap down. Hines said she did not
have panic attacks if she stayed away from her disruptive
neighbors.
The examination was terminated by Hines about six hours
into the session. Hines complained that her arm was too tired,
and that taking a break would not help her. She also was
worried about her pet bird because she had forgotten to turn on
the air conditioning. Hines was encouraged to call her
attorney, who strongly urged her to complete the examination.
During the call, she became genuinely upset, stating, "I'm just
16 full of emotion. I'm afraid if I continue. I'm going to be in
an ambulance going to the hospital[.]" Tr. 709. After the
phone call, Hines explained that she felt that she might develop
a panic attack because she was so upset, which would trigger a
severe asthma attack. The session was terminated and Hines
offered to come back to finish the testing.
Hines returned for her second appointment on June 18. She
seemed happy and cooperative during the remaining portion of the
examination. Dr. Jasper noted that Hines's speech was
articulate and grammatical and that her affect was bright and
cheerful. He also noted that she became irritable and somewhat
labile on two occasions when placed under stress but was able to
maintain adequate self-control.
Dr. Jasper diagnosed panic disorder without agoraphobia and
borderline intellectual functioning. He opined that Hines was
able to complete her daily activities; interact appropriately
with others in a work setting, despite some difficulty;
understand and remember very short, simple instructions;
maintain attention and concentration on simple tasks; and
tolerate stressors common to a work setting.
In an RFC statement. Dr. Jasper opined that Hines had
moderate limitations in her ability to understand, remember, and
carry out simple instructions; make judgments on simple work-
17 related decisions; interact appropriately with the public,
supervisors, and co-workers; and respond appropriately to work
situations and changes in routine work settings. "Moderate" was
defined on the form as "more than a slight limitation in this
area but the individual is still able to function
satisfactorily." Tr. 703.
Hines went to the ER on July 27, 2010, complaining of chest
pain, shortness of breath, and dizziness. She was admitted for
atypical chest pain and ataxia. It was noted that Hines's pain
appeared to be related to anxiety/hysteria. Several days later,
she was seen at the NAHC to follow up on the ER visit. She
still had pain, which was worse with inspiration. The
assessment was non-cardiac chest pain.
On November 2, 2010, Hines was seen by Dr. Kalyani Eranki
for a rheumatology consultation. She had significant eczema on
both hands. An antinuclear antibody test ("ANA") was positive.
The doctor reported that Hines seemed to have symptoms of
Raynaud's syndrome. At a follow-up appointment later in the
month. Dr. Eranki discussed conservative treatment options.
B. Administrative Proceedings
After her claim for disability benefits was denied at the
initial levels, Hines requested a hearing before an ALJ. The
hearing was held on September 11, 2008. The ALJ issued an
18 unfavorable decision on November 3, 2008, and the Decision
Review Board ("DRB") reviewed the case. On February 6, 2009,
the DRB vacated the ALJ's decision and remanded the case for a
further hearing to resolve several issues. Among other things,
the DRB asked the ALJ to "evaluate the claimant's mental
impairments, consider further the claimant's maximum residual
functional capacity . . . and obtain vocational evidence." Tr.
100 .
Hines appeared before a different ALJ for a new hearing on
October 27, 2010. Hines was represented by counsel. She and
her father testified. A vocational expert was also present but
was not asked to testify.
On December 23, 2010, the ALJ issued an unfavorable
decision. At step two of the sequential analysis, the ALJ found
that Hines had the following severe impairments: panic disorder
without agoraphobia; borderline intellectual functioning;
asthma; and possible Raynaud's syndrome with a positive ANA
test. At step three, he found that her impairments did not meet
or medically equal a listing. The ALJ then determined that
Hines had the RFC to perform medium work, except that she "is
limited to work involving simple instructions" and "cannot be
exposed to excessive dust, fumes, gases, and extreme
temperatures." Tr. 13. At step five, the ALJ determined that
19 the additional limitations had no effect on the occupational
base of unskilled medium work and decided, based on the Medical-
Vocational Guidelines, that jobs existed in significant numbers
in the national economy that Hines could perform. Accordingly,
the ALJ found that Hines was not disabled from February 19, 2007
through the date of the decision.
The DRB again selected the claim for review, but notified
Hines on March 29, 2011 that it did not complete its review
during the time allowed. The ALJ's December 23, 2010 decision
therefore became the final decision of the Commissioner.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the transcript of 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) .
The findings of fact made by the ALJ are accorded deference
as long as they are supported by substantial evidence. Id.
20 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." Nguyen v. Chater, 172 F.3d 31, 35 (1st
Cir. 1999). The ALJ is responsible for determining issues of
credibility and for drawing inferences from evidence on 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.
The ALJ follows a five-step sequential analysis for
determining whether an applicant is disabled. 20 C.F.R. §
404.1520; 20 C.F.R. § 416.920. The applicant bears the burden,
through the first four steps, of proving that his impairments
preclude him from working. Freeman v. Barnhart, 274 F.3d 606,
608 (1st Cir. 2001). At the fifth step, the ALJ determines
whether work that the claimant can do, despite his impairments,
21 exists in significant numbers in the national economy and must
produce substantial evidence to support that finding. Seavey v.
Barnhart, 276 F.3d 1, 5 (1st Cir. 2001).
Ill. ANALYSIS
Hines argues that the ALJ erroneously denied her claims for
disability benefits because he failed to account for her panic
disorder in the RFC assessment, improperly discounted certain
medical source opinions, and improperly relied upon the Medical-
Vocational Guidelines (the "Grid") to determine that she was not
disabled.3 I address each challenge below.
A. The ALJ's RFC Assessment
Hines contends that the ALJ's RFC assessment is not
supported by substantial evidence. Specifically, she argues
that the ALJ's decision is internally inconsistent because he
found at step two that her panic disorder was a severe
impairment but then failed to include in her RFC any functional
restrictions associated with the impairment. The argument lacks
merit.
3 Hines also argues that the ALJ failed to comply with instructions in the DRB's remand order. Because my task is to decide whether the ALJ applied the correct legal standards and reached a decision that is supported by substantial evidence, the allegation is not relevant to my review of the ALJ's decision. See 42 U.S.C. §405(g); Wilkins v. Barnhart, 69 Fed. App'x. 775, 779 (7th Cir. 2003).
22 The determination at step two as to whether an impairment
is severe is a de minimis test, designed to "screen out
groundless claims." McDonald v. Sec'y of Health & Human Servs.,
795 F.2d 1118, 1123 (1st Cir. 1986). All that is required of
the claimant at this step is "to make a reasonable threshold
showing that the impairment is one which could conceivably keep
him or her from working." Id. at 1122. An ALJ's finding that
an impairment is severe does not necessarily translate into
functional restrictions in the RFC. See Griffeth v. Comm'r of
Soc. Sec., 217 Fed. App'x 425, 428 (6th Cir. 2007) ("The ALJ's
finding that the limitation was [severe], however, was not
inherently inconsistent with his finding that the limitation has
'little effect' on the claimant's ability to perform basic work-
related activities."); Sykes v. Apfel, 228 F.3d 259, 268 n.12
(3d Cir. 2000) ("A finding under step two of the regulations
that a claimant has a 'severe' nonexertional limitation is not
the same as a finding that the nonexertional limitation affects
residual functional capacity"). Accordingly, although the ALJ
determined that Hines's panic disorder was a severe impairment,
he was not required to find that the impairment affected Hines's
RFC.
With respect to her mental RFC, the ALJ determined that
Hines was limited to work involving simple instructions, but
23 that she was able to use judgment, respond appropriately to
supervision, co-workers, and usual work situations, and cope
with routine changes in a work setting. Hines argues that the
ALJ's finding indicates that he rejected without adequate
explanation all medical source opinions to the extent they
identified functional limitations related to her panic disorder.
Specifically, she points out that the ALJ gave significant
weight to the opinions of Drs. Jamieson, Hadi, and Jasper, but
failed to explain his treatment of their opinions that she had
"moderate" limitations in her ability to respond appropriately
to changes in a work setting and/or in her ability to interact
appropriately with supervisors and co-workers. Based on the
definition of "moderate" common to all the opinions, I disagree.
The medical source and RFC evaluation forms that the
doctors filled out all define a "moderate" limitation as "more
than a slight limitation in this area but the individual is
still able to function satisfactorily." Given that the doctors
in effect opined that Hines could still respond to changes in a
work setting and interact with others at a satisfactory level,
despite some difficulties, the ALJ's assessment is not
inconsistent with their opinions. See McLain v. Astrue, No.
SACV 10-1108 JC, 2011 WL 2174895, at *6 (C.D. Cal. June 3, 2011)
("Moderate mental functional limitations - specifically
24 limitations in social functioning and adaptation - are not per
se disabling, nor do they preclude the performance of jobs that
involve simple, repetitive tasks.").
In fact, medical opinions indicating that a claimant is at
most moderately limited in the relevant areas can "adequately
substantiate" an ALJ's finding that the claimant can function in
a work environment. Falcon-Cartagena v. Comm'r of Soc. Sec., 21
Fed. App'x 11, 14 (1st Cir. 2001); see Quintana v. Comm'r of
Soc. Sec., 110 Fed. App'x. 142, 145 (1st Cir. 2004) (the ALJ's
finding that claimant could "relate normally to supervisors and
co-workers" is supported by treating psychiatrist's opinion that
the claimant's social functioning was "only 'moderately' limited
in most respects"). Here, the ALJ's assessment is bolstered by
Nurse Manning, whose opinion stated that Hines had only a mild
limitation in her ability to cope with work pressures and
routine changes in a work setting, and no limitation in her
ability to interact with others. The ALJ gave significant
weight to that opinion. The ALJ was entitled "to piece together
the relevant medical facts from the findings and opinions of
multiple physicians." Evangelista v. Sec'y of Health & Human
Servs., 826 F.2d 136, 144 (1st Cir. 1987). Accordingly, the
ALJ's RFC assessment is not internally inconsistent and is
supported by substantial record evidence.
25 B. Weight Given to Opinions
To the extent Hines also challenges the ALJ's decision to
assign little weight to the opinions that arguably conflict with
his RFC assessment, I conclude that the ALJ properly exercised
his discretion to resolve conflicts in the record.
An ALJ must consider a number of factors in weighing
medical source opinions, including the nature and extent of the
source's relationship with the applicant, whether the source
provided evidence in support of the opinion, whether the opinion
is consistent with the record as a whole, and whether the
medical source is a specialist in the field. 20 C.F.R. §
404.1527(c)(1-6). The fact that a medical opinion is from an
"acceptable medical source" is a factor that may justify giving
that opinion greater weight than an opinion from a medical
source who is not an "acceptable medical source." SSR 06-03P,
2006 WL 2329939, at * 5 (Aug. 9, 2006).
Here, the ALJ gave little weight to Counselor Hayes's
September 2008 opinion that Hines was not capable of gainful
employment. As the ALJ noted, Hayes had only been treating
Hines for two months at the time she rendered her opinion, and
Hines's counseling sessions ended three months later, with
treatment notes indicating that her condition had improved.
Moreover, Hayes's opinion is inconsistent with other medical
26 source opinions, and she is not an "acceptable medical source."
20 C.F.R. §§ 404.1502; 416.902. Accordingly, I find no error in
the ALJ's decision to give her opinion little weight.
The ALJ also gave little weight to Nurse Manning's opinion
that Hines received frequent treatment for severe anxiety at the
emergency room and the NAHC. The ALJ acknowledged that certain
treatment notes indicate that Hines's chest pains could be
related to anxiety, but he instead relied upon the fact that
both emergency and NAHC providers for the most part did not
attribute her chest pain to anxiety. Although the record
"arguably could support a different conclusion," Irlanda Ortiz,
955 F.2d at 770, Hines's treatment notes adequately support the
ALJ's decision, as her chest pain was most frequently diagnosed
as either costochondritis or chest wall pain.4 As the ALJ noted.
4 Hines also argues that the ALJ failed to recognize that many of her physical complaints and her compulsion to seek frequent medical attention were manifestations of anxiety. Her Statement of Disputed Facts describes additional treatment records indicating complaints of back, neck, shoulder, arm, or knee pain at various times between October 2003 and October 2010. The two treatment notes indicating that doctors recommended stress management in response to Hines's complaints are included in the Joint Statement of Facts. The rest merely note that Hines complained of pain or numbness in different areas without any indication that doctors considered these to be due to anxiety. Accordingly, I agree with the Commissioner that those treatment notes do not support Hines's claim that the ALJ misunderstood her physical complaints. The ALJ properly resolved any conflict in the evidence. See Irlanda Ortiz, 955 F.2d at 769 ("[T]he
27 moreover. Nurse Manning "is not a psychologist or psychiatrist
or even an acceptable medical provider." Tr. 15. Accordingly,
the ALJ was entitled to give little weight to the opinion.
Lastly, the ALJ discounted Dr. Warman's conclusion that it
would be difficult, though not impossible, for Hines to maintain
concentration and attendance and to follow a schedule. As the
ALJ explained, the opinion is inconsistent with other medical
opinions in the record, as well as Hines's activities of daily
living. The ALJ noted that she regularly attended medical
appointments, used the city bus, and wrote short stories, all of
which indicated greater ability than Dr. Warman assessed.
Because substantial evidence supports the ALJ's treatment of the
opinion evidence, a remand is not warranted on this basis.
C. Reliance on the Grid
To support his step five finding that Hines was not
disabled, the ALJ used the Grid5 to determine that jobs existed
in significant numbers in the national economy that Hines could
resolution of conflicts in the evidence is for the [ALJ], not the courts.") .
5 The Grid is a matrix that sets out different combinations of a claimant's age, education, work experience, and exertional capacity, and provides, as to each combination, whether the claimant is disabled. Sherwin v. Sec'y of Health & Human Servs., 685 F.2d 1, 2 (1st Cir. 1982). "The ALJ simply selects the proper table and row based on the characteristics he finds the claimant to possess, and reads the decision, 'disabled' or 'not disabled' from the right-hand column in that row." Id.
28 perform. Hines contends that the ALJ erred in doing so because
he was required to obtain vocational expert testimony to clarify
the effect of her nonexertional limitations on the occupational
base. I disagree.
The Grid allows the Commissioner to satisfy his burden at
step five without the opinion testimony of a vocational expert
when a claimant's limitations affect the strength requirements
of a job. Seavey, 276 F.3d at 5; Ortiz v. Sec'y of Health &
Human Servs., 890 F.2d 520, 524 (1st Cir. 1989). "In cases
where a nonexertional impairment significantly affects [a]
claimant's ability to perform the full range of jobs he is
otherwise exertionally capable of performing, the Secretary must
carry his burden of proving the availability of jobs in the
national economy by other means, typically through the use of a
vocational expert." Ortiz, 890 F.2d at 524 (quotations and
citations omitted).
An ALJ may rely on the Grid exclusively, however, if the
non-strength impairments "impose no significant restriction on
the range of work" a claimant can perform or if they only reduce
the occupational base "marginally." Id. With regard to mental
impairments, this determination involves the following inquiry:
"(1) whether a claimant can perform close to the full range of
unskilled work; and (2) whether [she] can conform to the demands
29 of a work setting, regardless of the skill level involved." Id.
at 526.
Here, the ALJ specifically determined that the use of the
Grid was appropriate because Hines's mental limitations "have
little or no effect on the occupational base of unskilled medium
work." Tr. 17. Substantial evidence supports the ALJ's
conclusion. The Commissioner has described the mental
capabilities required for unskilled work as follows:
the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.
SSR 85-15, 1985 WL 56857, at *4. Here, most medical sources
indicated that Hines could function satisfactorily in all three
areas. First, both examining and non-examining sources agreed
that Hines could understand, carry out, and remember simple
instructions. Second, Drs. Warman, Jamieson, and Hadi, as well
as treating Nurse Manning, all opined that Hines could interact
appropriately with supervisors and co-workers. Third, Drs.
Jamieson and Jasper indicated that Hines was only moderately
limited in her ability to cope with work changes, and Dr. Hadi
found a mild restriction in the area. According to the forms
the doctors filled out, an individual with a moderate limitation
"is still able to function satisfactorily." Accordingly, their
30 opinions support the ALJ's conclusion that, although Hines's
panic disorder was a "severe" impairment at step two, it did not
significantly compromise her capacity for unskilled work.
The First Circuit has recognized that moderate mental
limitations impose no significant restriction on the range of
work a claimant can perform. See Faicon-Cartagena, 21 Fed.
App'x at 14 ("[S]ince the RFC [] reports indicate that claimant
was at the most moderately limited in areas of functioning
required for unskilled work, we conclude that they adequately
substantiate the ALJ's finding that claimant's mental impairment
did not affect, more than marginally, the relevant occupational
base."). The ALJ was, therefore, justified in concluding that
Hines's mental impairments did not preclude performance of
substantially the full range of unskilled work.
The related inquiry regarding the claimant's ability to
conform to the demands of a work environment is also satisfied
here. Conforming to the demands of a work setting involves
"getting to work regularly . . . and remaining in the workplace
for a full day." SSR 85-15, 1985 WL 56857, at *6. Medical
sources agreed that Hines was only moderately limited in her
ability to maintain attention and concentration and to perform
work activities within a schedule. Again, those moderate
limitations do not significantly erode Hines's potential
31 occupational base because they do not preclude satisfactory
performance in the relevant areas. Notably, the claimant in
Ortiz also was moderately limited in the exact same areas, and
the First Circuit agreed with the ALJ that "apart from [the
claimant] being relegated to jobs of an unskilled nature, the
claimant's capacity for the full range of light work was not
significantly compromised by his additional nonexertional
limitations." 890 F.2d at 527. Finally, as in Ortiz, the
"claimant's characteristics did not position [her] near the
disabled/not disabled dividing line under the Grid rules." See
id. at 527-28. Even if Hines had been illiterate, the Grid
would have directed a finding of not disabled. See 20 C.F.R.
P t . 404, Subpt. P, App 2, Table No. 3, Rules 203.25-203.31.
Accordingly, I find no error in the ALJ's reliance on the
Grid. I echo, however, the First Circuit's cautionary message
that "an ALJ typically should err on the side of taking
vocational evidence when a [nonexertional] limitation is present
in order to avoid needless agency rehearings." Ortiz, 890 F.2d
at 52 8.
IV. CONCLUSION
For the foregoing reasons, Hines's motion to reverse the
decision of the Commissioner (Doc. No. 13) is denied. The
32 Commissioner's motion to affirm (Doc. No. 16) is granted. The
clerk shall enter judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
July 9, 2012
cc: Janine Gawryl, Esq. Gretchen Leah Witt, Esq.