UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jennifer Freddette
v. Case No. 17-cv-672-PB Opinion No. 2019 DNH 003 Nancy A. Berryhill, Acting Commissioner Social Security Administration
MEMORANDUM AND ORDER
Jennifer Freddette challenges the denial of her
applications for supplemental security income and disability
insurance benefits pursuant to 42 U.S.C. § 405(g). She contends
that the Administrative Law Judge (“ALJ”) who considered her
applications improperly evaluated the medical opinion evidence
and Freddette’s testimony in assessing her residual functional
capacity. The Acting Commissioner, in turn, moves for an order
affirming the ALJ’s decision. I deny Freddette’s motion and
affirm the Commissioner’s decision.
I. BACKGROUND
A. Procedural Facts
Freddette is a 48-year-old woman with a high school
education. See Administrative Transcript (“Tr.”) 34. She has
previously worked as a commercial cleaner at one facility for 10
years and as a certified nurse’s aide at a nursing home for 2-3
years. Tr. 683. Freddette has allegedly been disabled since July 11, 2014, due to a combination of anxiety disorder, mood
disorder, and asthma. See Tr. 25. 1
Freddette’s applications were initially denied in September
2015. On January 4, 2017, she testified at a hearing before ALJ
Lisa Groeneveld-Meijer, who ultimately denied her applications.
Tr. 23. The Social Security Administration (“SSA”) Appeals
Council denied Freddette’s request for review in October 2017,
rendering the ALJ’s decision the final decision of the Acting
Commissioner. See Tr. 1-6. Freddette now appeals.
B. Medical Opinions
The record reflects medical opinions of three nontreating
providers: Dr. Stefanie Griffin, a psychologist who performed a
one-time mental consultative examination; Dr. Stuart Gitlow, a
psychiatrist who reviewed Freddette’s records and testified at
the hearing as an impartial medical expert; and Dr. John Warren,
a state agency psychologist who rendered his opinion after
reviewing the evidence of record. 2
Dr. Griffin diagnosed Freddette with generalized anxiety
disorder, mood disorder, and borderline intellection
1 In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts. See Doc. No. 12. Because that joint statement is part of the court’s record, I only briefly recount the facts here. I discuss further facts relevant to the disposition of this matter as necessary below. 2 The record does not contain an opinion from a treating source. 2 functioning. Tr. 688. She opined that Freddette appeared to
require more support than her peers to complete complex daily
activities. She explained that Freddette reported heavy
reliance on her mother, including managing her household
finances. Freddette also regularly forgot to take her
medication. Tr. 686.
According to Dr. Griffin, Freddette did not appear capable
of maintaining appropriate social interactions with others. She
noted that Freddette was polite and cooperative during testing,
presented with neutral mood, and had a stable and appropriate
affect. Tr. 687. Freddette, however, endorsed symptoms of
severe depression and anxiety on self-report measures and
reported yelling at her mother out of frustration. Tr. 684,
687. She was “overly timid and apologetic” during the exam,
which Dr. Griffin found “consistent with her report that she
tends to isolate because of feelings of worthlessness and
discomfort around others.” Tr. 687.
The results of a Folstein Mini-Mental State Exam that Dr.
Griffin administrated indicated that Freddette’s mental state
was “impaired” and her overall intellectual performance was in
the borderline impaired range. Tr. 684. Dr. Griffin noted that
Freddette had difficulty following a three-step command and had
to concentrate carefully while test instructions were being
given. Tr. 684, 687. As a result, Dr. Griffin believed that
3 Freddette was not capable of consistently understanding and
remembering complex spoken information or consistently
completing complex tasks. Tr. 687.
In the end, Dr. Griffin concluded that Freddette did not
appear capable of adhering to a regular work schedule,
maintaining appropriate interactions with others in a work
setting, or making work-related decisions. She explained that
this was due to Freddette’s intellectual limitations and
unmanaged psychiatric symptoms. Tr. 688.
Dr. Gitlow reviewed all the evidence in the record,
including Dr. Griffin’s report, and testified at the hearing as
an impartial medical expert. Dr. Gitlow opined that Freddette
had moderate limitations in understanding, remembering, and
applying information; mild limitations in interacting with
others; moderate limitations in concentration, persistence, and
pace; and moderate limitations in adapting and managing herself.
Tr. 51. Because of her difficulty managing anger, Dr. Gitlow
believed that Freddette “would not do well with a significant
number of peers, colleagues, critical supervisors” or the
general public but could interact with a limited number of
people at work if the same people were there day-to-day. Tr.
54, 55-56.
Dr. Gitlow testified that Freddette’s personality disorder
and intellectual function “have been the same, virtually,
4 throughout her adult life” and that she showed “good adaptive
functioning despite these problems, including working for a
single facility for ten years and working at another facility
for two to three years.” Tr. 50. Although he agreed that
Freddette’s issues with mood and anxiety “appear to have
worsened” over time, Dr. Gitlow testified that she had a “good”
but “[n]ot a perfect” response to treatment with medication and
therapy. Tr. 50-51.
State agency psychologist Dr. Warren also reviewed the
record evidence. He opined that Freddette was able to “perform
basic tasks and relate with others well enough for routine
workplace purposes;” understand and remember simple
instructions; carry out simple tasks within acceptable
attention, persistence, and pace tolerances; and relate
adequately with supervisors and coworkers, but not the general
public. Tr. 106-109.
C. The ALJ’s Decision
The ALJ assessed Freddette’s claims under the five-step,
sequential analysis required by 20 C.F.R. § 404.1520. At step
one, she found that Freddette had not engaged in substantial
gainful activity since July 11, 2014, her alleged disability
onset date. Tr. 25. At step two, the ALJ found that
Freddette’s anxiety disorder, mood disorder, and asthma
qualified as severe impairments. Tr. 25. At step three, the
5 ALJ determined that none of Freddette’s impairments, considered
individually or in combination, qualified for any impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 26;
see 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526.
The ALJ then found that Freddette had the residual
functional capacity (“RFC”) to perform work at all exertional
levels, with the non-exertional limitations of doing “work that
is routine day to day, with simple tasks, training by
demonstration, and few, if any, changes” and no “contact with
the general public or tandem tasks.” Tr. 27-28. The ALJ also
added the limitation that Freddette could not be exposed to
potential irritants or poorly ventilated areas. Tr. 28.
In making the RFC determination, the ALJ concluded that
Freddette’s “statements concerning the intensity, persistence
and limiting effects of [her] symptoms [were] not entirely
consistent with the medical evidence and other evidence in the
record.” Tr. 29. The ALJ considered Freddette’s daily
activities and found that Freddette lived alone with her four-
year-old son, who was hyperactive and had speech problems; cared
for her son, including by preparing simple meals, bathing him,
reading to him, taking him outside to play “here and there,” and
playing Legos with him; used public transportation; performed
household chores such as cleaning, organizing, and doing
laundry; helped a friend by doing her dishes and cleaning her
6 house; and attended to her personal care needs. Tr. 28-29, 32.
Although Freddette reported relying on her mother for
assistance, the ALJ noted that they communicated mostly by phone
because her mother initially lived three hours away from
Freddette and later moved to Florida. Tr. 28.
Regarding Freddette’s asthma, the ALJ credited treatment
notes stating that the condition was well controlled with
medication. Tr. 29. In terms of her anxiety and mood
disorders, the ALJ noted that “mental status findings have
remained relatively benign, with no evidence of the severe
deficits” that Freddette described. Tr. 29. According to the
ALJ, Freddette’s mental health issues “appear largely caused by
situational stressors including financial worries, parenting
challenges with a four-year-old son with behavioral issues,
social isolation and unemployment.” Tr. 29.
The ALJ reviewed the medical opinions in the record and
gave “great weight” to Dr. Gitlow’s opinion because she found it
well supported by the objective medical evidence. The ALJ also
noted that Dr. Gitlow had reviewed all the evidence, was
familiar with the SSA’s regulations regarding disability
determination, and was a highly qualified specialist who
testified about issues in his area of specialty. Tr. 31-32.
7 The ALJ gave “substantial weight” to Dr. Warren’s opinion.
She reasoned that his opinion was “not inconsistent with the
medical evidence as a whole.” Tr. 33.
The ALJ effectively adopted Dr. Griffin’s opinion that
Freddette could not understand complex instructions or complete
complex tasks by limiting Freddette’s RFC to simple tasks and
training by demonstration. But the ALJ gave “very little
weight” to Dr. Griffin’s opinion that Freddette could not adhere
to a regular work schedule, interact appropriately at work, or
make work-related decisions. The ALJ reasoned that those
limitations were inconsistent with Dr. Gitlow’s opinion and
“rely in large part on [Freddette’s] subjective complaints,
rather than on clinical findings.” Tr. 32.
Relying on the testimony of a vocational expert, the ALJ
found at step four that Freddette could performing her past
relevant work as a commercial cleaner. Tr. 33. In the
alternative, the ALJ found at step five that there were other
jobs that existed in significant numbers in the national economy
that Freddette could perform. Tr. 33-34. Accordingly, the ALJ
concluded that Freddette had not been disabled from the alleged
onset date through the date of her decision. Tr. 35.
II. STANDARD OF REVIEW
I am authorized to review the pleadings submitted by the
parties and the administrative record and enter a judgment
8 affirming, modifying, or reversing the “final decision” of the
Commissioner. See 42 U.S.C. § 405(g). That review is limited,
however, “to determining whether the [Commissioner] 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 Commissioner’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 [her] 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 Commissioner’s factual findings are supported by
substantial evidence, they are conclusive, even where the record
“arguably could support a different conclusion.” Id. at 770.
The Commissioner’s findings are not conclusive, however, “when
derived by ignoring evidence, misapplying the law, or judging
matters entrusted to experts.” Nguyen v. Chater, 172 F.3d 31,
35 (1st Cir. 1999) (per curiam). “Issues of credibility and the
drawing of permissible inference from evidentiary facts are the
prime responsibility of the Commissioner, and the resolution of
conflicts in the evidence and the determination of the ultimate
question of disability is for her, not for the doctors or for
9 the courts.” Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018)
(internal quotation marks and brackets omitted).
III. ANALYSIS
Freddette alleges two errors with the ALJ’s RFC
determination that purportedly warrant reversal. She first
argues that the ALJ erroneously evaluated the medical opinions
of Drs. Griffin, Gitlow, and Warren. She then contends that the
ALJ erred in evaluating her subjective complaints. I address,
and reject, each argument in turn.
A. Weight Given to Medical Opinion Evidence
Freddette asserts that the ALJ improperly evaluated the
medical opinion evidence in determining her RFC. Because
substantial evidence supports the ALJ’s evaluation and her one
error was harmless, Freddette cannot sustain her burden of
establishing that remand is necessary.
A claimant’s RFC is “the most [the claimant] can still do
despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). It
must be crafted by an ALJ based on all relevant evidence in the
record. Id. In so doing, the ALJ “must consider limitations
and restrictions imposed by all of an individual’s impairments,
even those that are not ‘severe.’” Stephenson v. Halter, 2001
DNH 154, 2001 WL 951580, at *2 (D.N.H. Aug. 20, 2011) (quoting
Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *5
(July 2, 1996)). This is typically done by “piec[ing] together
10 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), but may sometimes
incorporate “common-sense judgments about functional capacity”
based upon those findings. Gordils v. Sec’y of Health & Human
Servs., 921 F.2d 327, 329 (1st Cir. 1990). The ALJ’s written
decision, however, need not specifically address every
individual piece of evidence in the record where it would be
cumulative or unhelpful to the claimant’s position. See Grenier
v. Colvin, 2015 DNH 133, 2015 WL 5095899, at *2 (D.N.H. July 2,
2015); Lord v. Apfel, 114 F. Supp. 2d 3, 13 (D.N.H. 2000); see
also Rodriguez v. Sec’y of Health & Human Servs., 915 F.2d 1557,
1990 WL 152336, at *1 (1st Cir. 1990) (per curiam, table
decision) (“An ALJ is not required to expressly refer to each
document in the record, piece-by-piece.”)
An ALJ must consider “medical opinions” provided by both
treating and nontreating “acceptable medical sources,” “together
with the rest of the relevant evidence.” 20 C.F.R. §§
404.1527(a)-(b), 416.927(a)-(b); see SSR 96-8p, 1996 WL 374184,
at *7. In addition, the ALJ must address such an opinion and –
if it conflicts with the RFC finding – must explain why it was
not adopted. SSR 96-8p, 1996 WL 374184, at *7.
The applicable regulations define “medical opinions” as
“statements from acceptable medical sources that reflect
11 judgments about the nature and severity of [a claimant’s]
impairment(s), including [her] symptoms, diagnosis and
prognosis, what [she] can still do despite impairment(s), and
[her] physical or mental restrictions.” 20 C.F.R. §§
404.1527(a)(2), 416.927(a)(2). A doctor’s recording of a
claimant’s “complaints in his notes does not convert [those]
subjective complaints . . . into medical opinion, thus entitling
[them] to some measure of deference.” Ford v. Barnhart, 2005
DNH 105, 2005 WL 1593476, at *8 (D.N.H. July 7, 2005).
Similarly, “subjective complaints are not entitled to greater
weight simply because they appear in [a] physician’s notes.”
Id.
An ALJ is generally required to “give more weight to the
opinion of a source who has examined [a claimant] than to the
medical opinion of a medical source who has not examined [her].”
20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1). “However, just as
an ALJ may properly decline to give controlling weight to the
opinion of a treating source, an ALJ may also discount the
weight given to the opinion of an examining source in favor of
the opinion of a nonexamining source.” Downs v. Colvin, 2015
DNH 113, 2015 WL 3549322, at *8 (D.N.H. June 8, 2015) (internal
citations omitted).
When determining the weight to give to a medical opinion,
an ALJ must consider, inter alia, the nature of the relationship
12 between the medical source and the claimant, the supportability
of the opinion, the consistency of the opinion with the record
as a whole, and whether the source of the opinion is a
specialist. See 20 C.F.R. §§ 404.1527(c), 416.927(c).
Regarding supportability, the regulations explain:
The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion. The better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion. Furthermore, because nonexamining sources have no examining or treating relationship with [a claimant], the weight we will give their medical opinions will depend on the degree to which they provide supporting explanations for their medical opinions. We will evaluate the degree to which these medical opinions consider all of the pertinent evidence in [a] claim, including medical opinions of treating and other examining sources.
20 C.F.R. §§ 1527(c)(3), 416.927(c)(3).
Here, the ALJ gave “very little weight” to the opinion of
consultative examiner Dr. Griffin, “great weight” to the opinion
of Dr. Gitlow, a nonexamining medical expert, and “substantial
weight” to the opinion of Dr. Warren, a nonexamining state
agency psychologist. I address each in turn.
1. Dr. Griffin’s Opinion
Dr. Griffin performed a consultative “Intelligence Profile”
examination of Freddette at the Commissioner’s request. The ALJ
gave “very little weight” to Dr. Griffin’s opinion that
Freddette’s intellectual limitations and unmanaged psychiatric
13 symptoms rendered her incapable of adhering to a regular work
schedule, maintaining appropriate interactions with others at
work, or making work-related decisions. Tr. 32; see Tr. 688.
The ALJ reasoned that those limitations were inconsistent with
Dr. Gitlow’s opinion and “rely in large part on [Freddette’s]
subjective complaints, rather than on clinical findings.” Tr.
32. The ALJ’s finding is supported by evidence that is
“adequate” to persuade “a reasonable mind.” See Irlanda Ortiz,
955 F.2d at 769 (internal quotation marks omitted).
The ALJ was entitled to credit Dr. Gitlow’s opinion over
Dr. Griffin’s. Dr. Gitlow disagreed with Dr. Griffin’s severe
limitations. He reasoned that Freddette’s personality disorder
and intellectual functioning “have been the same, virtually,
throughout her adult life.” Tr. 50. Despite those
dysfunctions, she worked for one employer for 10 years and
another employer for 2-3 years, demonstrating good adaptive
functioning. Tr. 50, 53.
Similarly, Dr. Gitlow was unpersuaded that Freddette’s
anxiety and mood disorder were severe enough to support Dr.
Griffin’s opinion. He explained that Freddette had “a good
response” to treatment and showed no signs of deficits during
Dr. Griffin’s exam. Tr. 51, 53. Specifically, Freddette’s mood
was neutral, her affect was stable and appropriate to the
circumstances, her speech was normal, and she was pleasant and
14 cooperative. Dr. Gitlow concluded that such “presentation is
not consistent with an impairing level of disease.” Tr. 53-54.
Finally, Dr. Gitlow rejected Dr. Griffin’s opinion that
Freddette would be incapable of maintaining appropriate social
interactions at work. That conclusion, he reasoned, was
inconsistent with Dr. Griffin’s observations that Freddette
interacted well during the examination. Tr. 54-55. According
to Dr. Gitlow, Freddette would not do well with a significant
number of colleagues or critical supervisors but would be suited
for “individual type of work place where she’s not involved in
significant customer or peer contact.” Tr. 54.
Conflicts in the evidence, such as the difference of
opinion between Dr. Gitlow and Dr. Griffin, are for the
Commissioner to resolve. See Irlanda Ortiz, 955 F.2d at 769.
Dr. Gitlow offered a detailed and persuasive explanation for his
opinion, which bolsters its supportability. See 20 C.F.R. §§
1527(c)(3), 416.927(c)(3). The ALJ noted that Dr. Gitlow’s
opinion was well-supported by the record and that he reviewed
all record evidence. By contrast, Dr. Griffin had the benefit
of only a handful of records. Finally, the ALJ stated that Dr.
Gitlow was a highly qualified specialist who testified about
issues related to his area of specialty and was knowledgeable
about the SSA’s disability determinations. Adjudicators are
entitled to rely on such findings to credit opinion evidence.
15 See, e.g., 20 C.F.R. §§ 404.1527(c), 416.927(c). Accordingly,
the fact that Dr. Griffin examined Freddette and Dr. Gitlow did
not is insufficient to challenge the ALJ’s weighing of their
opinions. See Downs, 2015 WL 3549322, at *8. 3
The ALJ’s decision to discount Dr. Griffin’s opinion as
based largely on Freddette’s subjective complaints is likewise
supported by substantial evidence. Although Freddette correctly
notes that Dr. Griffin’s report reflects a number of clinical
observations summarized above, which the ALJ acknowledged in her
decision, see Tr. 32, it also frequently relies on Freddette’s
own statements. See Tr. 681-88. In addition, the limited
written evidence that Dr. Griffin reviewed consisted almost
entirely of Freddette’s subjective complaints. See Tr. 686
(listing SSA function report that Freddette filled out and two
intake summaries from Community Partners as evidence reviewed);
see also Tr. 263-70 (function report); Tr. 319-45 (intake
summaries). As discussed below, the ALJ supportably found that
Freddette’s subjective complaints were not entirely consistent
3 The decision in Hainey v. Colvin, upon which Freddette relies, is distinguishable. There, the ALJ failed to adequately explain his decision to give more weight to the opinions of nonexamining medical sources than those of examining sources. See 2014 DNH 254, 2014 WL 6896022, at *6 (D.N.H. Dec. 5, 2014). Further, the nonexamining sources did not address the claimant’s seemingly significant cognitive limitations and they did not review a conflicting opinion of one examining source, rendering their opinions “somewhat incomplete and less persuasive.” Id. at *6 & n.4. 16 with the evidence in the record. Those subjective complaints
are not entitled to deference simply because they appear in Dr.
Griffin’s report. See Downs, 2015 WL 3549322, at *7; Ford, 2005
WL 1593476, at *8. Accordingly, I find no error in the ALJ’s
decision to give “very little weight” to Dr. Griffin’s opinion
and “great weight” to Dr. Gitlow’s opinion.
2. Dr. Gitlow’s Opinion
Freddette faults the ALJ for failing to include in the RFC
finding a limitation consistent with Dr. Gitlow’s opinion that
she could only interact with a “[l]imited number of people” at
work if “the same people . . . are there day-to-day.” Tr. 55-
56. Despite giving Dr. Gitlow’s opinion “great weight,” the ALJ
did not expressly address this limitation. The Commissioner
argues that the RFC finding is still sufficient because the ALJ
limited Freddette to jobs that entailed “few, if any, changes”
and required neither any “contact with the general public” nor
any “tandem tasks.” See Tr. 33. Alternatively, the
Commissioner maintains that the omission is a harmless error
because Freddette’s past relevant work and the other jobs the
vocational expert identified all have the lowest-possible rating
for social interaction, which accommodates Dr. Gitlow’s opinion.
The RFC finding does not account for general interaction
with coworkers. I agree with the Commissioner that limiting
Freddette to jobs that entailed “few, if any changes” includes
17 changes to the people who are at work and thus incorporates Dr.
Gitlow’s opinion about Freddette’s need to work with the same
people. But precluding contact with the public does not
accommodate the limitation on coworker interactions.
The ALJ seemingly sought to address this restriction by
excluding “tandem tasks,” which presumably involve collaborative
interaction with coworkers. No medical opinion in the record
used that term, however, and the parties have not cited a
pertinent source that defines it. Accordingly, I cannot
determine from this record whether a bar on tandem tasks could
in fact be equated with Dr. Gitlow’s limitation on workplace
interactions. 4
A remand on this basis is not warranted, however, because
the ALJ’s error is harmless. Courts routinely find harmless
error “where an alleged limitation that was not included in the
ALJ’s hypothetical (or in the RFC) was not necessary to perform
one or more of the jobs identified by the [vocational expert],
according to the [Dictionary of Occupational Titles].” Rochek
v. Colvin, No. 2:12-CV-01307, 2013 WL 4648340, at *12 (W.D. Pa.
Aug. 23, 2013) (collecting cases). The ALJ ultimately found
4 I reject the Commissioner’s invitation to conclude that the ALJ discounted Dr. Gitlow’s opinion on this matter in favor of Dr. Warren’s, which does not include a similar limitation. The ALJ generally gave more weight to Dr. Gitlow’s opinion than Dr. Warren’s, and the RFC finding is otherwise more consistent with the former than the latter. 18 that Freddette was not disabled by relying on the vocational
expert’s testimony that a person with Freddette’s RFC could
perform her past relevant work as a commercial cleaner and three
other jobs. The Dictionary of Occupational Titles (“DOT”)
assigns the lowest-possible rating for social interaction
(“people” code) to each of those jobs and provides that social
interaction is “Not Significant” in any of them. See DOT §
381.687-014, 1991 WL 673257 (commercial cleaner); DOT § 920.687-
126, 1991 WL 687992 (marker II); DOT § 921.685-046, 1991 WL
688088 (fruit distributor); DOT § 712.687-010, 1991 WL 679245
(assembler, plastic hospital products). Numerous courts have
found jobs with that rating appropriate for claimants with RFC
specifying limited coworker contact because such jobs involve
workplace interactions that are only “occasional,” “brief” and
“superficial.” See Sweeney v. Colvin, No. 3:13-cv-02233, 2014
WL 4294507, at *17 (M.D. Pa. Aug. 28, 2014) (collecting cases).
Because the ALJ identified jobs that Freddette could
perform even if Dr. Gitlow’s limitation were imported, the error
in failing to assess it was harmless.
3. Dr. Warren’s Opinion
Freddette argues that the ALJ’s decision to give
“substantial weight” to the opinion of state agency psychologist
Dr. Warren is not supported by substantial evidence. This is
because, she asserts, Dr. Warren “fail[ed] to evaluate the
19 opinion evidence from Dr. Griffin’s consultative examination,”
as evidenced by his statement that there was no medical or other
opinion evidence in the record. See Doc. No 8-1 at 7. This
challenge is meritless.
Dr. Warren explicitly and repeatedly indicated that he had
evaluated Dr. Griffin’s report. See Tr. 102 (listing Dr.
Griffin’s report as first item in list of evidence of record);
Tr. 105 (citing Dr. Griffin’s report as “Psych CE” and noting
that it “[s]hows B[orderline] I[intelligence] F[unctioning] and
G[eneralized] A[nxiety] D[isorder]”); Tr. 106 (noting “[r]ecent
mental CE suggests borderline intelligence”). The fact that Dr.
Warren did not list Dr. Griffin’s report as opinion evidence or
discuss it at length does not mean that he failed to consider
it. To the extent Freddette argues that Dr. Warren was required
to expressly reconcile his opinion with Dr. Griffin’s, she cites
no authority to support that proposition, and I have found none.
Because Dr. Warren’s opinion is supported by substantial
evidence, including relatively benign mental status findings and
evidence of Freddette’s daily activities, the ALJ properly
assigned it substantial weight.
B. Subjective Symptom Evaluation
Freddette also argues that the ALJ’s RFC determination
cannot stand because the ALJ did not properly evaluate her
subjective complaints. I find that the ALJ supportably
20 discounted Freddette’s subjective reports regarding the
intensity, persistence, and limiting effects of her symptoms as
“not entirely consistent with the medical evidence and other
evidence in the record.” Tr. 29.
In crafting a claimant’s RFC, an ALJ must consider all of a
claimant’s alleged symptoms and determine the extent to which
those symptoms can reasonably be accepted as consistent with
objective medical evidence and other record evidence. 20 C.F.R.
§§ 404.1529(a), 416.929(a); SSR 16-3p, 2016 WL 1119029, at *2
(Mar. 16, 2016). This involves a two-step inquiry. First, the
ALJ must determine whether the claimant has a “medically
determinable impairment” that could reasonably be expected to
produce her alleged symptoms. SSR 16-3p, 2016 WL 1119029, at
*3. Second, the ALJ evaluates the “intensity, persistence, and
limiting effects of [those] symptoms” to determine how they
limit the claimant’s ability to perform work-related activities.
Id. at *4. The ALJ must “examine the entire case record” in
conducting this evaluation, including objective medical
evidence, the claimant’s own statements and subjective
complaints, and any other relevant statements or information in
the record. Id.; see Coskery v. Berryhill, 892 F.3d 1, 4 (1st
Cir. 2018) (quoting SSR 16–3p, 82 Fed. Reg. 49462 (Oct. 25,
2017)) (republished without substantial change).
21 When a claimant’s statements are inconsistent with
objective medical evidence, an ALJ must evaluate the veracity of
the claimant’s descriptions of the intensity, persistence, and
limiting effects of her symptoms. See Floyd v. Berryhill, 2017
DNH 114, 2017 WL 2670732, at *5 (D.N.H. June 21, 2017); SSR 16-
3p, 2016 WL 1119029, at *4. The ALJ cannot reject the veracity
of the claimant’s own statements, however, solely because they
are unsubstantiated by objective medical evidence. 20 C.F.R. §§
404.1529(c)(2), 416.929(c)(2); see Clavette v. Astrue, No. 10-
cv-580, 2012 WL 472757, at *9 (D.N.H. Feb 7, 2012), R. & R.
adopted, 2012 WL 472878 (D.N.H. Feb. 13, 2012); Valiquette v.
Astrue, 498 F. Supp. 2d 424, 433 (D. Mass. 2007). Rather, an
inconsistency between subjective complaints and objective
medical evidence is just “one of the many factors” to consider
in weighing the claimant’s statements. SSR 16-3p, 2016 WL
1119029, at *5; see Makuch v. Halter, 170 F. Supp. 2d 117, 127
(D. Mass. 2001). 5
5 The principle that an ALJ may not rest a negative credibility assessment solely on the lack of corroborating objective medical evidence was developed under application of SSR 96-7p. See, e.g., Makuch, 170 F. Supp. 2d. at 126-127; Ault v. Astrue, 2012 DNH 005, 2012 WL 72291, at *5 (D.N.H. Jan. 10, 2012). This ruling has since been replaced by SSR 16-3p. See Coskery, 892 F.3d at 4; SSR 16-3p, 2016 WL 1119029, at *1. SSR 96-7p had been construed to only require an ALJ to assess a claimant’s “credibility” in the event her subjective statements were unsubstantiated by the objective medical record. See Guziewicz v. Astrue, 2011 DNH 010, 2011 WL 128957, at *6 (D.N.H. Jan. 14, 2011). Therefore, it was deemed legal error for an ALJ 22 Other factors the ALJ must consider, known as the “Avery
factors” in the First Circuit, include (1) the claimant’s daily
activities;(2) the location, duration, frequency, and intensity
of the pain or symptom; (3) any precipitating and aggravating
factors; (4) the effectiveness of any medication currently or
previously taken; (5) the effectiveness of non-medicinal
treatment; (6) any other self-directed measures used to relieve
pain; and (7) any other factors concerning functional
limitations or restrictions. See 20 C.F.R. §§ 404.1529(c)(3),
416.929(c)(3); see also Childers v. Colvin, 2015 DNH 142, 2015
WL 4415129, at *5 (D.N.H. July 17, 2015) (citing Avery v. Sec’y
of Health & Human Servs., 797 F.2d 19, 29 (1st Cir. 1986)). But
the ALJ is not required to address every Avery factor in her
written decision for her evaluation to be supported by
substantial evidence. Ault, 2012 WL 72291, at *5. Instead, the
decision need only “contain specific reasons for the weight
to discredit a claimant’s statements solely for lacking corroborating objective evidence. See, e.g., Clavette, 2012 WL 472757, at *9. In enacting SSR 16-3p to replace SSR 96-7p, the SSA primarily sought to “eliminate the use of the term ‘credibility’ from the sub-regulatory policy to make clear that a subjective symptom evaluation is not an examination of an individual’s character.” Coskery, 892 F.3d at 6 (citing SSR 16- 3p, 82 Fed. Reg. at 49463 & n.1) (internal quotation marks and brackets omitted); SSR 16-3p, 2016 WL 1119029, at *1 n.1. Despite that change, SSR 16-3p is materially the same as its predecessor, and it explicitly precludes an ALJ from “evaluat[ing] an individual’s symptoms based solely on objective medical evidence.” See SSR 16-3p, 2016 WL 1119029, at *4. 23 given to the individual’s symptoms, be consistent with and
supported by the evidence, and be clearly articulated so the
individual and any subsequent reviewer can assess how the
adjudicator evaluated the individual’s symptoms.” SSR 16-3p,
2016 WL 1119029, at *9 (emphasis added); see Anderson v. Colvin,
2014 DNH 232, 2012 WL 72291, at *7 (D.N.H. Nov. 4, 2014).
Here, the ALJ sufficiently explained her decision to credit
Freddette’s subjective complaints “only to the extent they can
reasonably be accepted as consistent with the objective medical
and other evidence.” Tr. 29. For example, the ALJ noted that
Freddette had a good response to treatment. Tr. 28, 29, 30.
She also stated that Freddette’s daily functioning undermined
her subjective claims of fully debilitating symptoms.
Specifically, the ALJ noted that Freddette lived independently
with her four-year-old son who had behavioral problems; cared
for him by preparing simple meals, bathing him, reading to him,
playing Legos with him, and occasionally taking him outside to
play; used public transportation; performed household chores
such as cleaning, organizing, and doing laundry; helped a friend
by doing her dishes and cleaning her house; and attended to her
personal care needs. Tr. 28-29, 32. Such an explanation
provides a sufficiently specific reason for the weight given to
Freddette’s testimony. Cf. Teixeira v. Astrue, 755 F. Supp. 2d
340, 347 (D. Mass. 2010) (“While a claimant’s performance of
24 household chores or the like ought not be equated to an ability
to participate effectively in the workforce, evidence of daily
activities can be used to support a negative credibility
finding.”).
In addition, the ALJ noted that during her consultative
examination with Dr. Griffin, Freddette completed intake
paperwork independently (albeit slowly) and “was able to follow
along with the natural flow of the examination.” Tr. 26. The
ALJ also observed that Freddette was able to respond
appropriately when spoken to and initiate conversation and was
pleasant and responsive to questioning during the hearing. Tr.
26. The ALJ’s observations support her decision to discount
Freddette’s statements that endorse a higher degree of
impairment. See Perez v. Sec’y of Health & Human Servs., 958
F.2d 445, 448 (1st Cir. 1991) (ALJ properly relied on his
“observation of claimant’s demeanor at the hearing” when
discounting claimant’s subjective complaints).
The ALJ also considered Freddette’s past work history and
noted that despite her professed difficulty getting along with
coworkers and supervisors, she worked at one facility for 10
years and at another for 2-3 years. Tr. 29, 30. In fact,
Freddette testified that on several occasions she stopped
working for reasons unrelated to her mental health conditions.
See Tr. 65 (testifying that her pregnancy and her employer’s
25 decision to reduce her hours explained why she stopped one job);
Tr. 67 (testifying that she was fired from another job for
working unauthorized overtime). The ALJ was entitled to rely on
the inconsistency between Freddette’s past work record and her
statements that she could not work to discount her testimony.
See Lewis v. Berryhill, 722 F. App’x 660, 662 (9th Cir. 2018)
(ALJ properly rejected claimant’s testimony in part based on
“inconsistencies between [claimant’s] testimony and her ability
to work in the past despite her limitations”); Bruton v.
Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (ALJ properly
considered claimant’s stated reasons for leaving past work in
discrediting claimant’s testimony).
In terms of precipitating and aggravating factors, the ALJ
found that Freddette’s conditions were largely caused by
situational stressors, including financial concerns, parenting
challenges, social isolation, and unemployment. Tr. 29. An ALJ
may consider whether a claimant’s symptoms result from temporary
situational stressors in discounting her subjective complaints.
See West v. Berryhill, No. 17-1170, 2017 WL 6499834, at *1 (1st
Cir. Dec. 11, 2017) (noting that ALJ’s RFC determination was
supported by “evidence that temporary situational factors
contributed to heightened symptoms”); Chesler v. Colvin, 649 F.
App’x 631, 632 (9th Cir. 2016) (symptom testimony properly
rejected in part because “the record support[ed] the ALJ’s
26 conclusion that [claimant’s] mental health symptoms were
situational”). 6
In sum, the ALJ provided specific reasons, supported by
substantial evidence, to discount Freddette’s subjective
complaints. Her finding is entitled to deference.
IV. CONCLUSION
Pursuant to sentence four of 42 U.S.C. § 405(g), I grant
the Acting Commissioner’s motion to affirm (Doc. No. 11), and I
deny Freddette’s motion to reverse and remand (Doc. No. 8). The
clerk is directed to enter judgment accordingly and close the
case.
SO ORDERED.
/s/ Paul Barbadoro Paul Barbadoro United States District Judge
January 7, 2019
cc: Robert J. Rabuck, Esq. D. Lance Tillinghast, Esq.
6 Freddette states that the treatment notes the ALJ cited describe her situational stressors as “risk factors” as opposed to “causes” of her mental health impairments. She does not explain the relevance of this distinction, let alone cite any supporting authority. To the extent there is a meaningful difference, it suffices to say that the treatment notes state that Freddette’s anxiety was “related to” one of those stressors, supporting the ALJ’s characterization of the record. See Tr. 808, 810. 27