UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kimberly Tann
v. Civil No. 16-cv-449-JD Opinion No. 2017 DNH 070 Nancy A. Berryhill, Acting Commissioner of Social Security
O R D E R
Kimberly Tann seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of Social
Security, denying her application for disability insurance
benefits under Title II and Title XVI of the Social Security
Act, 42 U.S.C. § 423 and § 1382. Tann contends that the
Administrative Law Judge (“ALJ”) erred in assessing the record
evidence. The Acting Commissioner moves to affirm. Tann filed
a response to the Acting Commissioner’s motion.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.” Nguyen v. Chater,
172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ’s
factual findings as long as they are supported by substantial
evidence. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34
(1st Cir. 2016). “Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Castillo
Condo. Ass’n v. U.S. Dep’t of Housing & Urban Dev., 821 F.3d 92,
97 (1st Cir. 2016) (internal quotation marks omitted).
“[S]ubstantial evidence does not mean either uncontradicted
evidence or overwhelming evidence” but instead can be satisfied
“even if the record arguably could justify a different
conclusion.” Id. (internal quotation marks omitted).
Background
Tann applied for disability insurance benefits and
supplemental security income on October 29, 2013, alleging that
she had been disabled since April 20, 2012, due to chronic
migraines, fibromyalgia, depression, anxiety, herniated disc,
acid reflux, and insomnia. After her applications were denied,
Tann amended her onset date to August 27, 2013, when she was
twenty-six years old. She previously worked as an assembler,
cleaner, as a personal care service provider, and in
maintenance.
2 Tann’s medical records pertinent to her onset date begin on
August 14, 2013. At that appointment, Dr. George W. Lovett, a
dermatologist, noted that Tann was in no distress, was alert and
oriented, and had appropriate mood and affect. Dr. Lovett also
noted edema in Tann’s lower legs and that she was obese. A week
later, Tann had injections in her cervical spine.
Dr. Natacha Sochat completed a physical residual functional
capacity assessment on January 14, 2014. Dr. Sochat found that
Tann could occasionally lift and carry up to twenty pounds,
frequently lift and carry up to ten pounds, and sit and stand or
walk for six hours in an eight hour day. Tann could
occasionally do postural activities such as climbing, balancing,
stooping, crouching, kneeling, and crawling.
At the end of January, 2014, Dr. Sharon Ferguson noted
that Tann’s anxiety and depression were controlled with
medication and her depression had improved. Dr. Ferguson urged
Tann to restart counseling. Dr. Ferguson found that Tann was
not in acute distress, did not have edema, had appropriate
affect, and did not appear to be anxious or depressed.
On February 12, 2014, Sherie Friedrich, Psy.D., examined
Tann to evaluate her psychological condition. Dr. Friedrich
made observations about Tann’s appearance and affect and
recorded Tann’s reports about her feelings and daily activities.
3 Tann was alert and oriented during the examination. Dr.
Friedrich noted Tann’s report that she was unable to adequately
complete chores when she was experiencing a lot of pain. In a
work setting, however, Tann could interact appropriately,
understand work procedures, follow simple instructions, maintain
concentration and complete tasks, tolerate stress that is common
in a workplace, and make simple decisions. Dr. Friedrich also
stated that Tann would benefit from psychotherapy to address her
“maladaptive behaviors.”
On March 4, 2014, Patricia Salt, Ph.D., a state agency
psychologist, completed a Psychiatric Review Technique based on
a review of Tann’s records. Dr. Salt concluded that Tann did
not have a severe mental impairment.
Tann was seen on June 5, 2014, for a follow up on her
chronic headaches by Nurse Finley-Bruno. The treatment notes
include Tann’s reported symptoms of her headaches, which were
moderate but could become severe with pressure and pounding that
caused nausea. Tann further reported that she would need to lie
down in a dark room when experiencing a severe headache and that
the headache could last up to forty-eight hours.
Tann explained that she had stopped taking her migraine
headache medicine when she discovered that she was pregnant and
had been having headaches for two months. She also said that
4 she had broken up with her boyfriend because of disputes over
custody of their son and his abusive behavior, which caused her
to have stress. Despite having a headache during the
examination with pain at the level of 6 out of 10, the provider
reported that Tann was in no acute distress and that her head
and neck range of motion was normal. Tann stated that triggers
for her headaches were stress, chemical smells, fluorescent
lights, and heavy perfume.
Tann reported headaches on September 29, 2014, with a pain
level of 6.5 out of 10. On January 20, 2015, Tann saw Nurse
Finley-Bruno and reported a headache pain level of seven out of
ten. Finley-Bruno, however, found that Tann was not in acute
distress, her mood and affect were normal, she was alert and
oriented, and was not ataxic.1 Nurse Finley-Bruno indicated that
Tann intended to take her headache medication again post-
pregnancy. At an appointment on March 11, 2015, Tann again
reported a headache pain level of 7 out of 10, but Nurse Finley-
Bruno noted that Tann was in no acute distress, her mood and
affect were normal, she was alert and oriented, and she was not
ataxic.
On April 3, 2015, Dr. Ferguson increased Tann’s medication
to better control her anxiety and depression. He also
1 Ataxia refers to a lack of motor control or coordination.
5 recommended that she increase exercise. Tann was in no acute
distress and all of Dr. Ferguson’s observations provided normal
results. Nurse Finley-Bruno also found normal results on June
18, 2015, despite Tann’s report of daily stress and headaches
and a pain rating of 7 out of 10. Tann was given a shot in her
cervical spine and continued on her other mediations.
Dr. Thomas Ward completed a Headache Residual Functional
Capacity Questionnaire on September 15, 2015. Dr. Ward stated
that he had treated Tann intermittently since December 31, 2012,
and noted that she had had chronic and constant migraine
headaches. He wrote that Tann’s headaches were
“mild/moderate/to severe pressure/pounding/sharp with
nausea/vomiting and light/sound sensitivity.” He wrote that
triggers were bright light, stress, moving around, and noise.
Dr. Ward said that Tann had a good response with Botox
treatment but still had daily headaches that would preclude even
basic work activities. He also said that she would need daily
unscheduled breaks from work because of headaches and thought
she would miss more than four days of work each month when she
was completely disabled due to headaches.
A hearing was held before an ALJ on September 22, 2015.
Tann was twenty-nine years old at the time of the hearing. She
was living with her mother and her two children.
6 Tann testified about her physical ailments and treatment
for fibromyalgia, a herniated disk in her lower back, and
headaches. She also testified that she had been seeing a
therapist for depression and anxiety and was taking medication
that controlled her mental impairments. Tann also described her
daily activities and the effects of her headaches.
A vocational expert, Ralph Richardson, also testified at
the hearing. Based on the hypothetical presented, Richardson
responded that Tann could not do any of her previous work but
would be able to do sedentary jobs, such as bench worker,
general office clerk, and order clerk. With additional
limitations, including increased absences, Richardson found no
work that Tann could do.
The ALJ issued a decision on October 5, 2015, denying
Tann’s applications. The ALJ found that Tann had severe
impairments due to migraines, degenerative disc disease, and
fibromyalgia. The ALJ also found that despite her impairments
Tann had the residual functional capacity to do light work with
a restriction on standing and walking and only occasional
postural activities. The ALJ also found that Tann would need to
avoid perfume, odors, bright lights and would need a low stress
environment, meaning that there would be little change in the
work setting and no need to exercise judgment. Based on that
7 assessment, the ALJ found that jobs existed in the national
economy that Tann could do. The Appeals Council denied her
request for review, making the ALJ’s decision the decision of
the Acting Commissioner.
Discussion
Tann moves to reverse the Acting Commissioner’s decision,
arguing that the ALJ erred in failing to make findings about her
ability to handle stress, improperly weighed the medical
evidence, and erred in not finding a severe impairment due to
obesity. The Acting Commissioner moves to affirm. Tann filed a
response to the Acting Commissioner’s motion.
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis. 20 C.F.R. § 404.1520.2
The claimant bears the burden through the first four steps of
proving that her impairments preclude her from working.3 Freeman
v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At the fifth
2 Because the pertinent regulations governing disability insurance benefits at 20 C.F.R. Part 404 are the same as the pertinent regulations governing supplemental security income at 20 C.F.R. Part 416, the court will cite only Part 404 regulations. See Reagan v. Sec’y of Health & Human Servs., 877 F.2d 123, 124 (1st Cir. 1989).
3 The first four steps are (1) determining whether the claimant is engaged in substantial gainful activity; (2) determining whether she has a severe impairment; (3) determining whether the impairment meets or equals a listed impairment; and (4) assessing the claimant’s residual functional capacity and her ability to do past relevant work. 20 C.F.R. § 404.1520(a).
8 step, the Acting Commissioner has the burden of showing that
jobs exist which the claimant can do. Heggarty v. Sullivan, 947
F.2d 990, 995 (1st Cir. 1991).
A. Ability to Handle Stress
Tann contends that the ALJ erred by failing to question her
at the hearing about her ability to handle stress and about
whether her past work was stressful. She also contends that the
ALJ erred in failing to make findings about her ability to
handle stress. Tann argues that ALJs are required to be
thorough and individualized in assessing stress and that the ALJ
in her case did not meet that standard.
In support, Tann relies on Titles II and XVI: Capability
to Do Other Work—The Medical—Vocational Rules as a Framework for
Evaluating Solely Nonexertional Impairments, Social Security
Ruling (“SSR”) 85-15, 1985 WL 56857 (January 1, 1985); and
Lancellotta v. Sec’y of Health & Human Servs., 806 F.2d 284 (1st
Cir. 1986). In Lancellotta, the First Circuit considered a
claimant with a severe mental impairment and the ALJ’s finding
that although the claimant could not perform his past work he
could perform other “low stress” jobs. Id. at 285. The court
held that substantial evidence did not support the ALJ’s finding
because the ALJ failed to explain why the claimant could do the
identified jobs despite the low stress limitation. Id. The
9 court noted “that stress is not a characteristic of a job, but
instead reflects an individual’s subjective responses to a
particular situation” and that there was no basis for the ALJ’s
finding that the claimant could do low stress work. Id.
In contrast, here the ALJ found that Tann had severe
physical impairments. To the extent Tann contends that the ALJ
was required to develop the record to show that stress or her
reaction to stress was a severe mental impairment, she is
mistaken. Tann bore the burden of showing through objective
medical evidence that she had a medically determinably mental
impairment that significantly limited her ability to work. See
Gardiner v. Colvin, 2015 WL 6504802, at *8 (D.R.I. Oct. 27,
2015); Rascoe v. Comm’r of Social Security, 103 F. Supp. 3d 169,
182 (D. Mass. 2015). Tann does not argue that the ALJ’s Step
Two findings were wrong in that regard.
The ALJ found that Tann was unable to do her past work
because of physical limitations, including migraine headaches
that could be triggered by stress. Unlike the situation in
Lancellotta, however, here the ALJ explained what he intended as
low stress work. Tann has not shown that the ALJ’s limitation
was insufficient to address that issue. Therefore, the ALJ’s
explanation satisfies the need for considering a claimant’s
individual needs under Lancellotta. See Degraffenreid v.
10 Colvin, 2016 WL 5109509, at *8 (D. Mass. Sept. 20, 2016); Poulin
v. Colvin, 2015 WL 237326, at *2-*3 (D. Me. Jan. 18, 2015).
B. Medical Opinion Evidence
Tann contends that the ALJ erred in giving little weight to
Dr. Ward’s opinions about the nature and effects of her migraine
headaches. She also contends that the ALJ erred in giving no
weight to the functional capacity assessment done by “OT Saun.”
The Acting Commissioner argues that the ALJ properly assessed
Dr. Ward’s opinion and asserts that the ALJ considered the
occupational therapist’s evaluation.
An ALJ is required to consider the medical opinions along
with all other relevant evidence in a claimant’s record. 20
C.F.R. § 404.1527(b). Medical opinions are evaluated based on
the nature of the medical source’s relationship with the
claimant, the consistency of the opinion with the other record
evidence, the medical source’s specialty, and other factors that
may be brought to the ALJ’s attention. § 404.1527(c). “[U]nder
the treating source rule, controlling weight will be given to a
treating physician’s opinion on the nature and severity of a
claimant’s impairments if the opinion is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in the record.” Arrington v. Colvin, --- F. Supp. 3d -
11 --, 2016 WL 6562550, at *16 (D. Mass. Nov. 3, 2016) (internal
quotation marks omitted). On the other hand, the ALJ may give
little weight to a treating source’s opinion if that opinion “is
inconsistent with other substantial evidence in the record,
including treatment notes and evaluations by examining and non-
examining physicians.” Glynn v. Colvin, 2017 WL 489680, at *2
(D. Mass. Feb. 6, 2017).
1. Dr. Ward’s Opinion
Dr. Ward recorded in his Headache Residual Functional
Capacity Questionnaire that Tann had daily constant headaches
with exacerbations that could last up to forty-eight hours. He
also indicated that the headaches were made better by Botox and
Verapamil. Dr. Ward believed that Tann could tolerate low
stress work, that she would require unscheduled breaks and
likely be absent more than four days each month, and that she
was completely disabled by headaches.
The ALJ considered Dr. Ward’s opinion but decided to give
it little weight.4 The ALJ noted that Dr. Ward indicated Tann
had exacerbations of her headaches but he did not indicate how
often the exacerbations would occur. The ALJ also noted that
Dr. Ward’s opinion was contradicted by Tann’s testimony that she
4 In parts of his decision, the ALJ misidentified Dr. Ward as Dr. Warden.
12 had headaches with a pain level of five out of ten and was able
to function normally and by Dr. Ward’s treatment notes showing
that medication helped Tann’s headaches. The ALJ also found
that Dr. Ward’s opinion about Tann’s likely absences was not
supported by the record and that Tann’s activity level also did
not support that level of severity and frequency of headaches.
Dr. Ward’s treatment notes for Tann begin on December 31,
2012.5 Dr. Ward reported Tann’s description of her headaches,
their history, and her symptoms.6 On examination, Dr. Ward found
no abnormalities. He changed her medication and recommended a
book, “Conquering Headaches.”7 Tann’s subsequent medical records
show that although she reported headache pain at a level up to
seven out of ten at various medical appointments, she was able
5 Although Tann cites the earlier records in support of her motion to reverse, the joint factual statements begins with medical records in August of 2013.
6 Statements in a medical record that merely repeat a claimant’s subjective complaints are not medical opinions because the notes are not “‘statements . . . that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, and what you can still do despite impairment(s), and your physical or mental restrictions.’” Hesson v. Colvin, 2015 WL 7259747, at *4 (D. Me. Sept. 29, 2015) (quoting 20 C.F.R. § 416.927(a)(2)).
7 The only cited objective medical test result in the record is an MRI done in April of 2012, which apparently did not show any related abnormality. Although Tann also had a lumbar spinal puncture to assess intracranial pressure done in 2013, Tann cites no records or opinions to show those results.
13 to function normally, appeared to be in no acute distress, and
had normal results on neurological examination.
The medical records also show that Tann was able to take
care of her son, visit her boyfriend, do grocery shopping, pay
bills, do household chores, prepare food, and attend medical
appointments despite her headaches. Although Tann testified
that her daily activities were limited when she was in pain
above a level of five out of ten, the ALJ found that she was not
entirely credible as to the severity, intensity, and limiting
effects of her headaches. Tann has not challenged the ALJ’s
credibility determination.
2. The Occupational Therapist’s Evaluation
Tann contends that the ALJ erred in failing to accord any
weight to the opinion of “OT Saun,” meaning the evaluation done
by Occupational Therapist Joan Van Saun.8 The parties’ joint
statement of material facts, which must include “all facts
pertinent to the decision of the case and all significant
procedural developments,” does not mention Van Saun’s
8 In support, Tann cites Titles II and XVII: Considering the opinions and Other Evidence from Sources Who Are Not “Acceptable Medical Sources” in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies, SSR 06-3p, 2006 WL 2329939 (Aug. 9, 2006), which explains the requirement that an ALJ must consider evidence from all sources. Contrary to Tann’s theory, however, there is no requirement that the ALJ must always assign a particular weight to that evidence.
14 evaluation. LR. 9.1(c). As such, Tann may have waived any
issue pertaining to that evaluation. See Lawton v. Astrue, 2012
WL 3019954, at *9 (D.N.H. July 24, 2012).
In any case, the ALJ considered Van Saun’s evaluation,
which was done in February of 2013. The ALJ noted the
functional evaluation and Tann’s report about her headache pain
and medication. The ALJ also noted that Tann told the
occupational therapist that she was unable to find work in her
area and that transportation was a problem.
Van Saun found that Tann was able to do postural activities
such as squatting and kneeling, without difficulty. She could
lift and carry up to twenty-five pounds occasionally, and she
could lift and carry up to fifteen pounds frequently. Her push
and pull strength was fairly strong. Tann could sit for up to
an hour, stand for up to a half-hour, and walk for up to an hour
at a time. Van Saun determined that physically Tann was capable
of working full time at an exertional level of up to light
physical demand.
The ALJ’s residual functional capacity finding generally
follows Van Saun’s assessment. Tann argues, nevertheless, that
the ALJ erred in failing to incorporate two of Van Saun’s
limitations into the residual functional capacity.
Specifically, Tann cites Van Saun’s recommendations that bending
15 would increase her back pain and put her at risk of injury and
that she would do best if she could change positions, “optimally
stand and walk for 5-10 minutes per one hour of sitting.”
The differences cited by Tann are minimal. Van Saun found
that Tann could squat, kneel, and half kneel without limitation.
The ALJ found that Tann could do those activities only
occasionally. Although the ALJ did not mention bending
specifically, the other postural limitations limit such
activities to only occasionally, which is consonant with Van
Saun’s recommendations.
The ALJ added a restriction that Tann must have the
opportunity to stand for five minutes each hour. Van Saun’s
recommendation for a standing option to last five to ten minutes
was for the optimal situation, not a requirement. Therefore,
the ALJ’s restriction is well within the limits set by Van Saun.
C. Obesity
Tann contends that the ALJ erred in failing to assess the
effects of her obesity at Step Two, as required by Titles II and
XVI: Evaluation of Obesity, SSR 02-1p, 2002 WL 34686281 (Sept.
12, 2002). She argues that because obesity can compound the
effect of other impairments, the ALJ should have considered the
effect of obesity on her migraine headaches, degenerative disc
disease, and fibromyalgia. She further asserts that the ALJ had
16 the duty to develop the record to show that she was disabled by
the effect of obesity on her other impairments.
Tann is mistaken. At Step Two, the claimant bears the
burden of providing evidence of a medically determinable severe
impairment or severe combination of impairments. Bowen v.
Yuckert, 482 U.S. 137, 146 & 149 (1987). While an ALJ has a
responsibility to fill gaps in a claimant’s medical records when
the record presented is inadequate, Heggarty v. Sullivan, 947
F.2d 990, 997 (1st Cir. 1991), Tann has not shown that any gaps
existed in her records. In addition, Tann was represented by
counsel through the administrative process and on judicial
review.
The ALJ found that migraines, degenerative disc disease,
and fibromyalgia were severe impairments and considered the
effects of those impairments on Tann’s ability to function.
Tann provides no evidence that her obesity compounded those
impairments or that other evidence existed that would show that
to be the case.9 Therefore, Tann has not shown that the ALJ had
a responsibility to develop the record as to what, if any,
effect her obesity might have had on her other impairments.
9 The treatment records, evaluations, and opinions in the record acknowledge Tann’s weight and height. In addition, Van Saun assessed Tann’s functional capacity in light of her obesity.
17 Substantial evidence supports the Acting Commissioner’s
decision, which is affirmed.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
(document no. 8) is denied. The Acting Commissioner’s motion to
affirm (document no. 9) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
April 10, 2017
cc: Penelope E. Groneck, Esq. Terry L. Ollila, Esq.