UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Cherie Ann Lacourse,
v. Civil No. 15-cv-375-JL Opinion No. 2016 DNH 140 Carolyn Colvin, Acting Commissioner, Social Security Administration
ORDER ON APPEAL
Cherie Ann Lacourse has appealed the Social Security
Administration’s (“SSA”) denial of her application for a period
of disability and disability insurance benefits. An
administrative law judge at the SSA (“ALJ”) ruled that, despite
several severe impairments, including fibromyalgia, post-
traumatic stress disorder, and cognitive disorder, Lacourse
retains the residual functional capacity (“RFC”) to perform jobs
that exist in significant numbers in the national economy, and
thus is not disabled. See 20 C.F.R. §§ 404.1505(a), 416.905(a).
The Appeals Council granted Lacourse’s request for review of the
ALJ’s initial decisions, see id. § 404.967, vacating the ALJ’s
decision and remanding for further proceedings. The ALJ issued
a new decision on remand, and the Appeals Council denied
Lacourse’s request for review thereof, with the result that the
ALJ’s second decision became the final decision on Lacourse’s
application, see id. § 404.981. Lacourse then appealed that decision to this court, which has jurisdiction under 42 U.S.C.
§ 405(g) (Social Security).
Lacourse has moved to reverse the decision, see
L.R. 9.1(b), contending that the ALJ erred (1) by incorrectly
weighing the opinion of one medical source when determining
Lacourse’s RFC, and (2) in his assessment of the credibility of
Lacourse’s subjective complaints. The Acting Commissioner of
the SSA has cross-moved for an order affirming the ALJ’s
decision. See L.R. 9.1(e). After careful consideration, the
court grants the Acting Commissioner’s motion to affirm (and
denies Lacourse’s motion to reverse) the ALJ’s decision.
I. Applicable legal standard
The court limits its review of a final decision of the SSA
“to determining whether the ALJ used the proper legal standards
and found facts upon the proper quantum of evidence.” Ward v.
Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The
court will uphold the ALJ’s decision if it is supported by “such
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quotations omitted). Though the evidence in the record
may support multiple conclusions, the court will still uphold
the ALJ’s findings “if a reasonable mind, reviewing the evidence
in the record as a whole, could accept it as adequate to support
2 his conclusion.” Irlanda Ortiz v. Sec’y of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991).
II. Background1
The ALJ invoked the requisite five-step process in
assessing Lacourse’s request for disability benefits. See 20
C.F.R. § 416.920. First, he concluded that Lacourse had not
engaged in substantial gainful activity during the period
between the alleged onset of her disability on May 20, 2011, and
the date she will no longer be insured, December 31, 2016. He
then analyzed the severity of Lacourse’s impairments, concluding
that Lacourse suffered from three severe impairments:
fibromyalgia, post-traumatic stress disorder, and cognitive
disorder. Admin. R. at 27.
At the third step, the ALJ found that Lacourse’s severe
impairments did not meet or “medically equal” the severity of
one of the impairments listed in the Social Security
regulations. See 20 C.F.R. §§ 416.920(d), 416.925, and 416.926.
After reviewing the medical evidence of record, Lacourse’s own
statements, and opinions from no fewer than 11 consultants and
treating providers, the ALJ concluded that Lacourse retained the
1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts (document no. 9) is incorporated by reference. See L.R. 9.1(d).
3 RFC to perform simple, unskilled, light work, albeit with
several physical limitations, in a low stress environment
(“defined as requiring little to no change in the work setting
and little to no need for the use of judgment”), and was able to
“maintain attention and concentration for two-hour increments
throughout an eight-hour workday.” Admin. R. at 29. Finding
that, limited in this manner, Lacourse was unable to perform her
past, relevant work as a cosmetologist or special education
teacher, see 20 C.F.R. § 404.1565, the ALJ continued to step
five, where he concluded that Lacourse could perform jobs that
exist in significant numbers in the economy. Therefore, the ALJ
found, Lacourse was not disabled within the meaning of the
Social Security Act.
III. Analysis
Lacourse challenges two aspects of the ALJ’s analysis.
First, she contends that the ALJ erred in crafting Lacourse’s
RFC by incorrectly weighing the opinion of Dr. Bennett Slotnick,
a neuropsychologist who evaluated Lacourse and opined that
Lacourse may be limited to part-time work. Second, Lacourse
argues that substantial evidence does not support the ALJ’s
determination that Lacourse’s statements concerning the
intensity, persistence, and limiting effects of her symptoms
were “not entirely credible.” Admin. R. at 13. The court
4 addresses each of these arguments in turn and concludes that the
ALJ did not err on either front.
A. Residual functional capacity
In crafting Lacourse’s RFC, the ALJ weighed and considered
the medical opinions of some 11 sources. Lacourse challenges
the weight given to one portion of one of these opinions -- that
of Dr. Slotnick, who performed a neuropsychological examination
on Lacourse at the request of her vocational rehabilitation
counselor. The ALJ afforded weight to the majority of
Dr. Slotnick’s opinion, but gave “less than great weight” to
that opinion only “to the extent that [Dr. Slotnick] appears to
limit [Lacourse] to part-time work.” Admin. R. at 34-35. The
ALJ discounted that portion of Dr. Slotnick’s opinion because
“[t]he evidence of record does not reflect cognitive impairment
that would prevent [Lacourse] from working at least simple,
unskilled work on a full-time basis.” Id. at 35. Lacourse
argues that the ALJ erred by giving less than great weight to
Dr. Slotnick’s conclusion that Lacourse could work only part
time.
The ALJ weighs the medical opinions “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
5 brought to the ALJ's attention.” Grant v. Colvin, 2015 DNH 59,
7 (citing 20 C.F.R. § 416.927(c)). It is for the ALJ to resolve
conflicts between medical opinions, and the ALJ’s decision to
resolve those conflicts against the claimant must be upheld if
“that conclusion has substantial support in the record.”
Tremblay v. Sec’y of Health & Human Servs., 676 F.2d 11, 12 (1st
Cir. 1982). Substantial evidence is that which a “reasonable
mind, reviewing the evidence in the record as a whole, could
accept . . . as adequate to support [the] conclusion.” Ortiz v.
Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.
1991) (quoting Rodriguez v. Sec’y of Health & Human Servs., 647
F.2d 218, 222 (1st Cir. 1981)). The ALJ’s decision is so
supported here.
The record contains three other opinions that address the
effects of Lacourse’s mental impairments on her ability to work.
As the ALJ points out, Dr. Darlene Gustavson, who also examined
the plaintiff, noted that she was “able to sustain attention and
concentration, persistence and pace, . . . complete tasks, . . .
[and] tolerate stresses common to a work environment, which
includes the ability to . . . consistently maintain attendance
and schedule.” Admin. R. 32. The ALJ also relied, to a degree
appropriate for a source that is not considered an “acceptable
medical source,” on the opinion of Lacourse’s treating counselor
that her “level of functioning and overall ability with regards
6 to her mental health was within normal limits,” and that she
observed no “significant symptoms that are causing [Lacourse]
impairment in her daily life.” Id. at 33. The ALJ also
afforded “some weight” to the opinion of a state agency
psychological consultant, who concluded that Lacourse “has no
severe psychological or cognitive impairment, with only mild
limitations in activities of daily living, social functioning,
and ability to maintain concentration, persistence or pace.”
Id.
Importantly, as the ALJ points out, Dr. Slotnick’s
conclusion that Lacourse did not appear to have “the requisite
stamina and overall ability to maintain full-time employment”
focused on her ability to work “at a level equal to that which
existed” before the onset of her disability. Id. at 1083. He
noted, instead, that “an active job search would seem
appropriate,” as it “could assist in identifying and ultimately
pursing and securing a potential career path compatible with her
medical, emotional, and cognitive status.” Id. As the ALJ
observed, Dr. Slotnick did “not indicate whether the claimant is
able to work full-time in an unskilled position . . . .” Id.
at 35. In light of the thorough treatment that the ALJ afforded
Dr. Slotnick’s report and those of the other opinions addressing
the effect of Lacourse’s mental impairments, the court simply
cannot conclude that the ALJ erred in the weight he afforded to
7 Dr. Slotnick’s conclusion that Lacourse may be able to work
part-time.
None of Lacourse’s arguments to the contrary alter that
conclusion. Lacourse argues that the ALJ should have afforded
Dr. Slotnick’s evaluation greater weight because it “was founded
upon a cluster of causes,” rather than “based upon a cognitive
impairment alone,” Plaintiff’s Mem. (document no. 7-1) at 8, and
because of the “thoroughness and depth of [his] neuropsycho-
logical evaluation,” id. at 10. The ALJ, in fact, acknowledged
the thoroughness of Dr. Slotnick’s evaluation and afforded “his
opinion weight to the extent that he finds there is little
evidence of any cognitive impairment,” a conclusion he
determined was consistent with Lacourse’s treatment records,
Admin. R. at 35, and one that Lacourse does not challenge.
Furthermore, as the Acting Commissioner points out, the ALJ
considered and afforded weight to other medical sources --
including Dr. Gustavson -- who did not render their opinions in
a vacuum, but also considered a variety of factors in drawing
their conclusions.
Lacourse’s suggestion that Dr. Slotnick’s opinion
concerning the amount of time that Lacourse could work should be
given greater weight because Dr. Slotnick performed a follow-up
interview some months later, Plaintiff’s Mem. (document no. 7-1)
at 12, fares equally poorly. Though a subsequent visit may have
8 confirmed Dr. Slotnick’s earlier conclusions, it provided, he
explained, “little additional information . . . to add to that
described initially.” Admin. R. at 1178. As such, the fact of
a second interview that had little impact on Dr. Slotnick’s
opinion does not provide grounds for this court to conclude that
the ALJ erred in evaluating those opinions.1
Lacourse further argues that the ALJ erred in discounting
Dr. Slotnick’s conclusion in light of the fact that his is the
only neuropsychological opinion in the record. See Plaintiff’s
Mem. (document no. 7-1) at 10-12. The ALJ ought “generally give
more weight to the opinion of a specialist about medical issues
related to his or her area of specialty than to the opinion of a
source who is not a specialist.” 20 C.F.R. § 404.1527(c)(5).
At the same time, “the more consistent an opinion is with the
record as a whole, the more weight” that opinion should be
given. Id. § 404.1527(c)(4). The ALJ complied with these
requirements, affording weight to Dr. Slotnick’s opinion as a
neuropsychologist to the extent that his findings were
1 Lacourse does not go quite so far as to contend that subsequent evaluative visits rendered Dr. Slotnick a treating provider, entitling his opinion to controlling weight under 20 C.F.R. § 404.1527. Nor does he appear to the court to be a “treating source,” that is, Lacourse’s “own physician, psychologist, or other acceptable medical source who provides [her], or has provided [her], with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [her].” Id. § 404.1502.
9 “supported in [Lacourse’s] treatment records and normal
neurological and IQ testing.” Admin. R. at 35. To the extent
that the ALJ concluded that a specific portion of Dr. Slotnick’s
opinion lacked support in the record, however, he gave it less
weight. Id. Accordingly, the ALJ did not err in his treatment
of this specialist’s opinion.2
Finally, Lacourse argues that “the ALJ’s RFC finding was
tainted by his credibility assessment.” Plaintiff’s Mem.
(document no. 7-1) at 13. The court rejects that argument in
light of its conclusion that the ALJ did not err in his
credibility assessment. See infra Part III.B.
B. Subjective complaints and credibility
Lacourse next contends that the ALJ erred in evaluating her
subjective complaints. It is the ALJ’s responsibility “to
evaluate the credibility of a claimant’s testimony about [his]
symptoms and their limiting effect in light of all the other
evidence of record, rather than to simply accept the testimony
as true.” Scanlon v. Astrue, 2013 DNH 088, 15 n.4. This court
will generally defer to that determination when the ALJ supports
2 To the extent that Lacourse supports her position with citation to cases wherein the opinion of a specialist who was also a treating provider was given greater weight, see, e.g., Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000); Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000), those cases are inapposite here. As discussed supra at 9 n. 1, Lacourse does not contend that Dr. Slotnick was a treating provider.
10 it with specific evidence in the case record. Simmons v.
Astrue, 736 F. Supp. 2d 391, 401 (D.N.H. 2010) (citing
Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 195
(1st Cir. 1987)). Though the evidence in the record may allow
for more than one conclusion, the ALJ’s credibility
determination will be upheld so long as “a reasonable mind,
reviewing the evidence in the record as a whole, could accept it
as adequate to support [the ALJ’s] conclusion.” Irlanda Ortiz,
955 F.2d at 769 (quotation marks omitted).
As Lacourse points out, the ALJ evaluates subjective
complaints according to SSR 96-7p, Titles II and XVI: Evaluation
of Symptoms in Disability Claims: Assessing the Credibility of
an Individual’s Statements, 1996 WL 374186 (S.S.A. 1996), which
outlines a specific staged inquiry that consists of the following questions, in the following order: (1) does the claimant have an underlying impairment that could produce the symptoms he or she claims?; (2) if so, are the claimant’s statements about his or her symptoms substantiated by objective medical evidence?; and (3) if not, are the claimant’s statements about those symptoms credible?
Comeau v. Colvin, 2013 DNH 145, 21 (internal quotations
omitted); see also 20 C.F.R. § 404.1529. Following that
process, the ALJ concluded that Lacourse’s impairments crossed
the threshold of the first question, in that her “medically
determinable impairments could reasonably be expected to cause
the alleged symptoms . . . .” Admin. R. at 30. At the second
11 at third steps, however, he concluded that Lacourse’s
“statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible . . . .”
Lacourse contends that the ALJ ignored pertinent evidence
and “failed to fairly consider all of the evidence in the entire
record” when assessing her credibility. See Plaintiff’s Mem.
(document no. 7-1) at 15. In doing so, Lacourse raises four
arguments, none of which prevail.
Lacourse first faults the ALJ for failing to address her
work history. See 20 C.F.R. § 404.1529(c)(3); see also Schaal
v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998). In his credibility
analysis, the ALJ did note that she had previously worked full
time, see Admin. R. at 31 (Lacourse “was able to work full-time
previously,” despite her fibromyalgia diagnosis), and that she
considered part-time work, id. at 31-32 (Lacourse was
“interested in working part time in the schools” and reported
“that she would like to teach again in some capacity.”). In
light of this, and the fact that Lacourse does not explain how a
more detailed analysis of Lacourse’s work history and attempts
to find part-time and other work would alter the ALJ’s
credibility analysis, the court rejects this argument.
Lacourse further disputes the ALJ’s characterization of her
activities of daily living and, specifically, that they
12 reflected “an active, robust lifestyle.” Admin. R. at 32. The
ALJ observed that Lacourse reported that she walks regularly for
exercise, hikes, enjoys reading, drawing, and painting, drives,
shops, performs household chores, maintains a positive
relationship with her family members, and independently runs
errands and attends appointments. Admin. R. at 32. To the
extent the Lacourse, to counter that conclusion, cites record
evidence that casts doubt on her ability to perform daily
activities, such conflicting evidence is for the ALJ to resolve.
Seavey v. Barnhart, 276 F.3d 1, 10 (1st Cir. 2001). And the
ALJ, resolving those conflicts, may draw negative conclusions
about the claimant’s credibility. Mason v. Astrue, 2013 DNH
013, 14; see also St. Pierre v. Shalala, No. 94-232, 1995 WL
515515, at *3 (D.N.H. May 25, 1995) (“When evaluating the
subjective claims of pain it is proper and, indeed, required
that the ALJ consider daily activities such as driving, walking
and household chores. This allows the Secretary to juxtapose
the claimant’s subjective allegations of pain with the relative
intensity of [her] daily regimen.”) (internal citations
omitted). Insofar as the ALJ supported his conclusion with
rather thorough citations to a not insignificant record, see
Irlanda Ortiz, 955 F.2d at 769, the court concludes that the ALJ
did not err in his analysis of Lacourse’s activities of daily
living.
13 Next, Lacourse highlights record evidence documenting her
“chronic symptoms” and the fact that physical activity
aggravated those symptoms. See Plaintiff’s Mem. (document no.
7-1) at 17-20. Presumably, though Lacourse does not argue as
much explicitly, she believes that this evidence compels more
sympathetic conclusion as to Lacourse’s credibility. However,
as the Acting Commissioner observes, the ALJ supported his
credibility determination with extensive citations to record
evidence suggesting that Lacourse’s subjective allegations of
pain ran inconsistent with the results of a variety of tests,
the conclusions of several medical providers, and even her own
reports during treatment. See Admin. R. at 30-32. Accordingly,
because the ALJ’s decision “contains specific, clear reasons for
his credibility determination that are supported by record
evidence,” Perry v. Colvin, 2014 DNH 198, 7, the court finds no
error on these grounds.
Finally, Lacourse objects to the ALJ’s credibility
assessment because three “statements made in the ALJ’s decision
that . . . could be viewed to impact negatively on the
credibility of the plaintiff’s subjective complaints.”
Plaintiff’s Mem. (document no. 7-1) at 20. Presumably, though
she does not say as much, Lacourse intends to suggest that the
statements were either incorrect or that the ALJ erred in
14 considering the evidence discussed in those statement. As best
the court can make them out, none of these arguments succeeds.
To the extent that Lacourse argues that the ALJ incorrectly
relied on the normality of Lacourse’s neurological testing and
clinical exams with respect to her complaints of fibromyalgia-
related pain, see Plaintiff’s Mem. (document no. 7-1) at 20),
the ALJ did not run afoul of Johnson v. Astrue, 597 F.3d 409,
412 (1st Cir. 2009).3 Here, the ALJ concluded not that Lacourse
did not suffer from the symptoms of fibromyalgia; but rather
that her subjective complaints as to their intensity,
persistence, and limiting effects were not entirely credible.
See Admin. R. at 30. Nor did he base that conclusion solely on
the fact that her neurological testing and clinical exams. He
also supported it with citations to record evidence
demonstrating that Lacourse was able to work full-time “for many
years” after she was diagnosed with fibromyalgia, that her
3 As the Court of Appeals for the First Circuit has noted, there is often little “objective” medical evidence of fibromyalgia and, as such, ALJ errs when he “effectively . . . requir[es] objective evidence beyond the clinical findings necessary for a diagnosis of fibromyalgia under established medical guidelines.” Johnson, 597 F.3d 409, 412 (1st Cir. 2009) (quoting Green– Younger v. Barnhart, 335 F.3d 99, 106-07 (2d Cir. 2003)). Thus, “once the ALJ accepted the diagnosis of fibromyalgia, [he] also ‘had no choice but to conclude that the claimant suffer[ed] from the symptoms usually associated with [such condition], unless there was substantial evidence in the record to support a finding that claimant did not endure a particular symptom or symptoms.’” Id.
15 treatment records did not support her allegation that the
condition worsened after a motor vehicle accident in 2011, and
that she had been “doing well” on Cymbalta. See Admin. R. at
31.
Plaintiff next appears to argue that the ALJ erred when he
“downplayed the severity of [her] pain because she was reluctant
to undergo an occipital nerve block.” See Plaintiff’s Mem.
(document no. 7-1) at 20. An ALJ may draw inferences about the
severity of a claimant’s symptoms when the claimant declines
treatment to address them. See Valley v. Barnhart, 2003 DNH
165, 13-14. When doing so, the ALJ must “first consider[] any
explanations that the individual may provide, or other
information in the case record, that may explain” that decision.
SSR 96-7p, 1996 WL 374186, at *7. Here, the ALJ took into
account Lacourse’s reasoning -- that there was no guarantee a
nerve block would work. Admin. R. at 31.
Finally, the court finds no error vis-à-vis Lacourse’s
credibility in the ALJ’s statement that Lacourse’s “treating
provider believed that she did not need mental health counseling
. . . .” See Plaintiff’s Mem. (document no. 7-1) at 21. The
ALJ considered that opinion among, as discussed more thoroughly
supra, a variety of others, and crafted an RFC that accounted
for Lacourse’s severe mental health impairments. The court
16 accordingly finds no error in these three statements in the
ALJ’s decision.
IV. Conclusion
For the reasons just explained, the ALJ’s conclusion that
Lacourse is not disabled is supported by substantial evidence in
the record. Lacourse’s motion to reverse the SSA’s decision4 is
DENIED and the Acting Commissioner’s motion to affirm5 is
GRANTED. The clerk shall enter judgment accordingly and close
the case.
SO ORDERED.
/s/Joseph N. Laplante Joseph N. Laplante United States District Judge
Dated: August 17, 2016
cc: Raymond J. Kelly, Esq. T. David Plourde, Esq.
4 Document no. 7. 5 Document no. 8.