UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Lynn M. Perry, Claimant Case No. 19-cv-522-SM v. Opinion No. 2020 DNH 014
Andrew Saul, Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Lynn Perry, moves
to reverse the Commissioner’s decision denying her application
for Disability Insurance Benefits under Title II of the Social
Security Act (the “Act”), 42 U.S.C. § 423, and Supplemental
Security Income Benefits under Title XVI of the Act, 42 U.S.C.
§§ 1381-1383(c). The Commissioner objects and moves for an
order affirming the decision.
For the reasons discussed below, claimant’s motion is
denied, and the Commissioner’s motion is granted.
Background
I. Factual Background
A detailed factual background can be found in the
claimant’s statement of facts (document no. 9), and the
Commissioner’s statement of facts (document no. 11). A brief summary is provided, with an emphasis on the history of Perry’s
physical impairments, because her appeal of the ALJ’s decision
is focused thereon.
Perry was born in 1972. Prior to July, 2015, she worked as
a bartender, a banquet waitress, and a waitress. In her
application for benefits, Perry stated that her ability to work
is limited by the following physical or mental conditions:
bipolar disorder, attention deficit disorder; “hip problems;”
and “disc problems” and arthritis in her back. Admin. Rec. at
271. In Perry’s Function Report, she reported she was unable to
work because she could not “stand, sit or walk for more than 10
minutes at a time.” Admin. Rec. at 280. She further noted that
she had some difficulties getting dressed, bathing, and shaving
her legs, and found cooking more difficult because she was
unable to stand for long periods of time. Id. at 281. Claimant
reported that she was able to do her laundry (but needed help to
carry the laundry basket), cook, wash dishes and light cleaning,
but could not rake, garden, sweep, mop or reach to dust. Id. at
282-283. Claimant further reported that she was able to drive
alone; shop for food, clothes and household products; and attend
family social gatherings, and weekly church services. Id. at
283-284.
2 A. Medical Evidence in the Record
Perry has been treated for her hip pain and lower back pain
for the past several years by several different practitioners.
Dr. Richard McKenzie has been claimant’s primary care physician
since at least December, 2014. Admin. Rec. at 435 et. seq.
Claimant frequently visited Dr. McKenzie requesting prescriptive
pain relief, which, she reported, allowed her to maintain
function. See, e.g., admin. rec. at 429 (Aug. 31, 2015, office
visit); R. at 426 (Oct. 23, 2015, office visit); R. at 422 (Feb.
11, 2016, office visit). For example, at an office visit on
March 24, 2017, claimant reported that she continued to “have
some intermittent breakthrough symptoms,” but her “analgesia is
helping her to maintain function.” Admin. Rec. at 470.
Similarly, at a September 20, 2016, office visit, claimant
reported that her “analgesics are working reasonably well, but
she does have some breakthrough symptoms.” Admin. Rec. at 473.
On physical examination of claimant’s “osteopathic/
musculoskeletal” system, Dr. McKenzie frequently observed:
“There is no kyphoscoliosis. The cervical, thoracic and lumbar
curves are normal. There is full range of motion of all four
extremities. No evidence of cyanosis, clubbing, or edema.”
See, e.g., id. (Dec. 23, 2014, office visit). See also admin.
rec. at 422 (Feb. 11, 2016, office visit); 473 (Sept. 20, 2016,
office visit); 470 (Mar. 24, 2017, office visit); 567 (Sept. 25,
3 2017, office visit). Dr. McKenzie occasionally observed that
claimant had “decreased range of motion in her lumbar spine with
hypertonicity of paraspinal muscles.” See, e.g., admin. rec. at
420 (May 12, 2016, office visit); 426 (Oct. 23, 2015, office
visit). For her pain, Dr. McKenzie prescribed claimant
Oxycodone and Percocet. He also referred her to physical
therapy (which, claimant later reported, exacerbated her pain
(admin. rec. at 429)), and to a pain clinic for steroid
injections. See, e.g., admin. rec. at 567, 422. Dr. McKenzie’s
most recent treatment notes, from late-2017 and early-2018,
report that claimant’s back impairment was stable; he did not
recommend changing her treatment regimen. See admin. rec. at
472, 562, 565, 569.
Claimant received treatment from Littleton Hospital for her
back pain on two occasions: on July 12, 2015, and on August 28,
2015. On July 12, 2015, claimant visited the emergency room,
complaining of severe pain, and difficulty walking. Admin. Rec.
at 355. She was diagnosed with low back strain. Id. at 364.
On August 28, 2015, claimant returned to the emergency room,
reporting back and leg pain. The medical records from that
visit report the following result of a musculoskeletal exam:
Back was nontender to palpitation over the posterior spinous processes of the thoracic spine and the paraspinal musculature. She had no palpable
4 paraspinal spasm. Low back was nontender to palpation over the posterior spinous processes of the lumbar spine and paraspinal musculature. No palpable lumbar spasm. She moved quite well with exam.
Admin. Rec. at 380. Those records further state:
[Claimant] has filled 3 prescriptions for narcotics including March, April and July from 3 different providers only one of which appears to be her PCP. I had a long conversation with the patient stating that the policy in . . . emergency medicine is that we are not the prescribers of chronic pain medication and I referred her to her PCP. . . . The patient became somewhat argumentative and began to escalate and she became quite angry repeatedly requesting narcotic pain medicine. . . . She seemed to be ambulating with minimal difficulty at the time of discharge.
Admin. Rec. at 380.
In the autumn, 2015, claimant treated with orthopedic
surgeon Dr. Dougald MacArthur at the Alpine Clinic for leg pain
and associated weakness, with buckling of the leg. Admin. Rec.
at 346. Dr. MacArthur ordered an MRI, which showed “partial
sacralization of the L5 vertebra bilaterally (greater on the
right), severe hypertrophic facet changes at L4-5 (worse on the
right) with borderline to mild spinal canal stenosis and
moderate bilateral foraminal compromise, and mild degenerative
disc disease and bulging disc at L2-3 with borderline to mild
foraminal compromise (worse on the right).” Cl.’s Statement of
Material Facts at 4 (citing Admin. Rec. at 348-349). Claimant
was referred to a spine center.
5 Finally, claimant treated with AVH Surgical Associates’
Pain Management Clinic, for “spinal stenosis, unspecified spinal
region;” and “spondylosis of lumbar region without myelopathy or
radiculopathy.” Admin. Rec. at 549. At an office visit on May
19, 2016, claimant reported chronic low back pain, and posterior
and lateral thigh pain. Id. at 550. She further reported that
“her lower extremities give out” with any heavy lifting. Id.
Claimant’s physical examination revealed an abnormal gait and
station, as well as tenderness and pain upon examination of the
spine. 1 She was diagnosed with spinal stenosis and spondylosis
of the lumbar region, and, on June 2, 2016, received lumbar
spine injections at L3 through L5. Admin. Rec. 558-559.
1 At that visit, APRN Carmen Ackerson noted the following:
[Claimant] has violated [controlled substance agreement] in past . . . and she was weened down due to being late for pill count. She was previously being seen here and we were unable to reach for pill count and DUA. . . . She is NOT a candidate for opiates through this clinic. No [controlled substance agreement] done and patient refused DUA today. We will only treat her with non-narcotic and interventional procedures. She was belligerent at this [office visit] . . . At her last office visit here[,] it was noted “She was very upset and refused to leave exam room for several minutes, her [significant other] came back into area as well, security was notified, arrived, and patient and [significant other] left.” If this occurs again[,] patient will not be seen at this office.
Admin. Rec. at 549.
6 On October 25, 2016, Dr. Peter Loeser performed an
orthopedic consultative examination of claimant. Admin. Rec.
465-68. He noted that, “[o]ther than mild abdominal pain and
loss of lumbar lordosis,” “there [were] no significant findings
on physical examination.” Admin. Rec. at 467. He further noted
that claimant appeared “comfortable at rest and with activity,
and move[d] with ease around the examination room without any
apparent . . . impairment.” Admin. Rec. at 467-68.
Claimant received another MRI on June 27, 2018, which
showed a “transitional lumbrosacral junction; moderate
multifactorial L304 spinal stenosis and multifactorial neural
encroachment with probable exiting right L3 radicular
impingement; a shallow subligamentous mixed spondylitic
protrusion at L4-5 with facet arthrosis causing mild bilateral
neural foraminal encroachment; hypertrophic facet arthrosis and
slight synovial cyst formation at the right L3-4 facet joint; a
disc protrusion at L3-4 with annular tear and hypertrophic facet
arthrosis; and, thoracolumbar scoliosis and rotation.” Cl.’s
Statement of Material Facts at 6-7 (citing Admin. Rec. at 591-
592).
Finally, the record indicates that claimant was engaging in
a variety of physical activities (or at least told her health
care providers that she was engaging in those activities). For
7 example, at a May 12, 2016, office visit, claimant reported that
her pain had improved over the winter because she had been
“fairly inactive,” but, as she increased her activity — she had
gone to pick fiddlehead ferns a day prior — her pain had
increased. Admin. Rec. at 420. Claimant also told her health
care providers that she exercised twice a week (admin. rec. at
504), often “would go out in the evening until 3AM or later”
(admin. rec. at 451); went camping and swimming (admin. rec. at
522); engaged in “heavy lifting” (admin. rec. at 422); and
conducted seemingly strenuous home renovations, including
stripping wallpaper, lifting old linoleum, and tearing down
plasterboard (admin. rec. at 531, 534).
B. Opinion Evidence in the Record
There are two medical opinions in the record that assess
claimant’s physical limitations. The first is from Dr. Jonathan
Jaffe, a state agency consultant who did not treat or examine
claimant, but reviewed the evidence in the record. On October
26, 2016, Dr. Jaffe opined that claimant could occasionally lift
and carry 20 pounds; frequently lift and carry 10 pounds; and
stand, walk and sit about six hours in an eight hour work day.
Admin. Rec. at 101-102. He further opined that claimant could
occasionally climb ramps, stairs, ladders, ropes and scaffolds;
8 and could occasionally balance, stoop, kneel, crouch, and crawl.
Admin. Rec. at 101-102.
On December 14, 2017, Dr. McKenzie completed a “Multiple
Impairment Questionnaire,” in which he opined that claimant
could sit, stand and/or walk for less than an hour (on a
sustained and ongoing basis). Admin. Rec. at 489-493. He
further opined that her pain, fatigue, or other symptoms were
severe enough to frequently interfere with claimant’s attention
and concentration, and that claimant would need to take
frequent, unscheduled breaks to rest at unpredictable intervals
during an eight-hour workday. Id. Dr. McKenzie stated that
claimant’s limitations had been present since before December
23, 2014.
II. Procedural History
On February 12, 2016, claimant filed applications for
Supplemental Security Income and Disability Insurance Benefits,
respectively. She alleged that she was disabled and had been
unable to work since July 31, 2015. Her application was denied
on October 27, 2016, and claimant requested a hearing before an
Administrative Law Judge (“ALJ”).
On July 25, 2018, claimant, her attorney, and an impartial
vocational expert appeared before an ALJ, who considered
9 claimant’s application de novo. On October 4, 2018, the ALJ
issued her written decision, concluding that claimant was not
disabled, as that term is defined in the Act, through the date
of the decision. Claimant then requested review by the Appeals
Council. The Appeals Council denied claimant’s request for
review, finding no reason to review the ALJ’s decision.
Accordingly, the ALJ’s denial of claimant’s applications for
benefits became the final decision of the Commissioner, subject
to judicial review. Subsequently, claimant filed a timely
action in this court, asserting that the ALJ’s decision is not
supported by substantial evidence.
Claimant then filed a “Motion to Reverse Decision of the
Commissioner” (document no. 7). In response, the Commissioner
filed a “Motion for an Order Affirming the Decision of the
Commissioner” (document no. 10). Those motions are pending.
III. The ALJ’s Findings
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory
five-step sequential evaluation process described in 20 C.F.R.
§§ 404.1520 and 416.920. See generally Barnhart v. Thomas, 540
U.S. 20, 24 (2003). Accordingly, she first determined that
claimant had not been engaged in substantial gainful employment
since her alleged onset of disability, July 31, 2015. Admin
10 Rec. at 18. She next concluded that claimant suffers from the
following severe impairments: “degenerative disc disease, spinal
stenosis, labral tear of the hip, attention deficit
hyperactivity disorder, bipolar disorder, and depression with
anxiety.” Id. The ALJ then determined that claimant’s
impairments, whether considered alone or in combination, did not
meet or medically equal one of the impairments listed in Part
404, Subpart P, Appendix 1 of the regulations. Id. 2
Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except that the claimant is limited to standing and walking up to six hours and sitting up to six hours in an eight hour workday. The claimant needs to alternate between sitting and standing every thirty minutes, but changes in her position would not take off her task. She must avoid work requiring the use of ladders, ropes, or scaffolds. She is limited to occasionally climbing ramps and stairs, balancing, stopping, kneeling, crouching, and crawling. The claimant must avoid concentrated exposure to dust, fumes, and poorly ventilated areas. She is capable of simple, routine tasks with occasional minor changes in
2 With respect to claimant’s mental impairments, the ALJ found that Perry had moderate limitations in understanding, remembering, or applying information; moderate limitation in interacting with others; moderate limitation with regard to concentrating, persisting, or maintaining pace; and moderate limitation in adapting or managing oneself.
The ALJ then determined that the “paragraph B” criteria were not satisfied because the claimant’s mental limitations did not amount to two “marked” limitations or one “extreme” limitation. The ALJ further determined that the “paragraph C” criteria were not satisfied.
11 the work setting. She is unable to perform work that involves fast-paced production standards.
Admin. Rec. at 20-21. In light of those restrictions, and based
on the testimony of the vocational expert, the ALJ concluded
that claimant was not capable of performing her past relevant
work. Id. at 31.
Finally, the ALJ considered whether there were any jobs in
the national economy that claimant might perform. Relying on
the testimony of the vocational expert, the ALJ concluded that
“the claimant is capable of making a successful adjustment to
other work that exists in significant numbers in the national
economy.” Id. at 32. The ALJ then concluded that claimant was
not “disabled,” as that term is defined in the Act, through the
date of her decision.
Standard of Review
I. “Substantial Evidence” and Deferential Review
Pursuant to 42 U.S.C. § 405(g), the court is empowered “to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” Factual findings and credibility
determinations made by the Commissioner are conclusive if
supported by substantial evidence. See 42 U.S.C. §§ 405(g),
12 1383(c)(3). See also Ortiz v. Secretary of Health & Human
Services, 955 F.2d 765, 769 (1st Cir. 1991). Substantial
evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Importantly, it
is something less than a preponderance of the evidence, so the
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence. Consolo v.
Federal Maritime Comm’n., 383 U.S. 607, 620 (1966). See also
Richardson v. Perales, 402 U.S. 389, 401 (1971).
This court’s review of the ALJ’s decision is, therefore,
both limited and deferential. The court is not empowered to
consider claimant’s application de novo, nor may it undertake an
independent assessment of whether she is disabled under the Act.
Rather, the court’s inquiry 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). Provided the ALJ’s findings are properly
supported by substantial evidence, the court must sustain those
findings even when there may also be substantial evidence
supporting the contrary position. Such is the nature of
judicial review of disability benefit determinations. See,
13 e.g., Tsarelka v. Secretary of Health & Human Services, 842 F.2d
529, 535 (1st Cir. 1988); Rodriguez v. Secretary of Health &
Human Services, 647 F.2d 218, 222 (1st Cir. 1981).
II. The Parties’ Respective Burdens
An individual seeking SSI and/or DIB benefits is disabled
under the Act if he or she is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The
Act places a heavy initial burden on the claimant to establish
the existence of a disabling impairment. See Bowen v. Yuckert,
482 U.S. 137, 146-47 (1987); Santiago v. Secretary of Health &
Human Services, 944 F.2d 1, 5 (1st Cir. 1991). To satisfy that
burden, the claimant must prove, by a preponderance of the
evidence, that her impairment prevents her from performing her
former type of work. See Gray v. Heckler, 760 F.2d 369, 371
(1st Cir. 1985); Paone v. Schweiker, 530 F. Supp. 808, 810-11
(D. Mass. 1982). If the claimant demonstrates an inability to
perform her previous work, the burden shifts to the Commissioner
to show that there are other jobs in the national economy that
she can perform, in light of her age, education, and prior work
14 experience. See Vazquez v. Secretary of Health & Human
Services, 683 F.2d 1, 2 (1st Cir. 1982). See also 20 C.F.R.
§§ 404.1512(f) and 416.912(f).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective claims of pain and
disability, as supported by the testimony of the claimant or
other witnesses; and (3) the claimant’s educational background,
age, and work experience. See, e.g., Avery v. Secretary of
Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote v. Secretary of Health & Human Services, 690 F.2d 5,
6 (1st Cir. 1982). Ultimately, a claimant is disabled only if
her:
physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.
42 U.S.C. § 423(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Commissioner’s motion to affirm the
decision.
15 Discussion
In support of her motion to reverse the ALJ’s decision,
claimant raises the following errors: (1) the ALJ erred in her
assessment of the medical opinion evidence, specifically the
opinion of Dr. McKenzie; (2) the ALJ erred by failing to
properly evaluate claimant’s testimony; and (3) the ALJ erred by
failing to reconcile conflicts between the testimony of the
vocational expert and the Dictionary of Occupational Titles.
I. The ALJ Properly Evaluated the Medical Opinion Evidence.
Perry first takes issue with the ALJ’s treatment of the
medical opinion evidence. More specifically, she argues that
the ALJ erred by giving little weight to the opinion of Perry’s
treating physician, Dr. McKenzie, and instead relied on the
opinion of the state agency physician, Dr. Jaffe.
A. Dr. McKenzie’s Opinion
The ALJ wrote the following regarding Dr. McKenzie’s
December, 2017, opinion:
The Undersigned considered an impairment questionnaire completed by Dr. McKenzie in December 2017. . . . The Undersigned grants little weight to this assessment because it is not consistent with the objective evidence or conservative course of treatment, discussed above. It is also inconsistent with her reported activities of daily living, including doing some cleaning and home renovation, as well as her work activity, [as] she worked as a waitress after September, 2014, and demonstrated more than a one-hour sedentary capacity.
16 Admin. Rec. 30-31.
Perry argues that, because Dr. McKenzie is her treating
physician, his opinion should have been given controlling
weight. Claimant further argues that, contrary to the ALJ’s
findings, Dr. McKenzie’s opinion is well-supported by the
objective medical evidence, and is not inconsistent with
claimant’s activities of daily living.
In discussing the weight that will be ascribed to the
opinions of “treating sources,” the regulations applicable to
claimant’s appeal provide that, “Generally, we give more weight
to medical opinions from [the claimant’s] treating sources,
since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s).” 20 C.F.R. § 404.1527(c)(2).
See also Social Security Ruling, Policy Interpretation Ruling
Titles II and XVI: Giving Controlling Weight to Treating Source
Medical Opinions, SSR 96-2p, 1996 WL 374188 (July 2, 1996).
Importantly, however, there is no per se rule requiring the ALJ
to give greater weight to the opinion of a treating source. To
be entitled to controlling weight, a treating source’s opinions
must be “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and [cannot be] inconsistent
17 with the other substantial evidence in [the] case record.” 20
C.F.R. § 404.1527(c)(2).
Claimant contends that, contrary to the ALJ’s determination
that Dr. McKenzie’s opinion is unsupported by the objective
medical evidence, the opinion “expressly stated that the
limitations . . . were based on x-rays of the spine and hip and
MRI findings of the spine.” Cl.’s Mem. in Supp. of Mot. to
Reverse at 3 (citing Admin. Rec. at 484, 488). And, claimant
contends, those findings are correlated by physical examinations
documenting decreased motion in the lumbar spine, with
hypertonicity of the paraspinal muscles.
As the Commissioner points out, claimant’s argument
slightly mischaracterizes the record. In his opinion, Dr.
McKenzie cited to the x-rays and MRI as “findings that support
[his] diagnosis,” (spinal stenosis, left hip pain and
degenerative disc disease of the lumbar spine), not as findings
that support the limitations he assessed in his December, 2017,
opinion. Admin. Rec. at 484 (Question 2b). And, as the
Commissioner further notes, a significant percentage of the
findings in the medical record following physical examination of
the claimant — particularly those findings made by Dr. McKenzie
18 — were normal. 3 See, e.g, Admin. Rec. at 420-21, 424, 427, 471,
474, 562, 565, 569; see also Admin. Rec. at 346, 381, 467-68.
The claimant’s additional arguments regarding the weight
the ALJ afforded Dr. McKenzie’s opinion are unpersuasive.
Claimant takes issue with the ALJ’s finding that Perry’s
activities of daily living were not consistent with Dr.
McKenzie’s opinion. The court agrees, however, with the ALJ:
the record regarding claimant’s activities (e.g., tearing down
plasterboard, lifting old linoleum, stripping wallpaper) is not
consistent with the limitations Dr. McKenzie described in his
opinion. See, e.g., Admin. Rec. at 419, 423, 451, 522, 531,
534.
But, claimant continues, there is no evidence that she
engaged in those activities for a prolonged period. That
argument is similarly unavailing. As the ALJ pointed out, Dr.
McKenzie noted in his opinion that claimant’s limitations had
existed since “before 12/23/2014.” Admin. Rec. 488 (Question
3 For example, at claimant’s office visit on December 14, 2017, (the date on which Dr. McKenzie’s opinion was rendered), claimant informed Dr. McKenzie that “her back pain and hip pain prevent her from doing any lifting, standing or sitting for extended periods.” Admin. Rec. at 564. But, the “Review of Systems” from the visit states: “Back pain/problems none. Joint pain none. Joint swelling none. Muscle weakness none.” Id. at 565 (emphases added).
19 14a-b). Claimant continued to work as a bartender/waitress for
several months after December 23, 2014, at least until July
2015, work which required “a lot of bending and standing.”
Admin. Rec. at 429. Performing that sort of work on a regular
basis would, of course, be considered prolonged. See also
Admin. Rec. at 380 (claimant stating that she had been
“travel[ling] about town for several hours . . . running some
errands”). Moreover, the ALJ did not find that claimant was
capable of employment based entirely on her activities.
Instead, the ALJ determined that claimant’s activities were not
consistent with the limitations assessed by Dr. McKenzie. See
20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent a
medical opinion is with the record as a whole [including
activities of daily living], the more weight [an ALJ] will give
to that medical opinion.”).
The ALJ thoroughly explained his reasons for discounting
Dr. McKenzie’s opinion. Those reasons are well-supported by the
record. Thus, claimant’s criticisms of the ALJ’s treatment of
Dr. McKenzie’s opinion do not warrant remand.
20 B. Dr. Jaffe’s Opinion
Claimant takes issue with the ALJ’s reliance on the opinion
of Dr. Jaffe because, she says, Dr. Jaffe reviewed claimant’s
file on October 26, 2016, when it included treatment notes only
through October, 2015. Therefore, she says, Dr. Jaffe reviewed
only three months of treatment notes, notes that ended three
years prior to the date of the ALJ’s decision.
The Commissioner responds that claimant is incorrect: Dr.
Jaffe, in fact reviewed more recent records, including an
October 25, 2016, consultative exam. See Admin. Rec. at 102-3.
Moreover, the Commissioner says, plaintiff fails to establish
that the medical evidence post-dating Dr. Jaffe’s review
demonstrated a sustained worsening in her condition.
“It can indeed be reversible error for an administrative
law judge to rely on an RFC opinion of a non-examining
consultant when the consultant has not examined the full medical
record.” Ferland v. Astrue, No. 11-CV-123-SM, 2011 WL 5199989,
at *4 (D.N.H. Oct. 31, 2011) (quoting Strout v. Astrue, Civil
No. 08–181–B–W, 2009 WL 214576, at *8 (D. Me. Jan. 28, 2009))
(further citations omitted). However, as the court has
previously stated:
21 an ALJ may rely on such an opinion where the medical evidence postdating the reviewer's assessment does not establish any greater limitations, see Strout v. Astrue at *8–9, or where the medical reports of claimant's treating providers are arguably consistent with, or at least not “clearly inconsistent” with, the reviewer's assessment. See Torres v. Comm'r of Social Security, Civil No. 04–2309, 2005 WL 2148321, at *1 (D.P.R. Sept. 6, 2005) (upholding ALJ's reliance on RFC assessment of non-examining reviewer where medical records of treating providers were not “in stark disaccord” with the RFC assessment). See also McCuller v. Barnhart, No. 02–30771, 2003 WL 21954208, at *4 n.5 (5th Cir. 2003) (holding ALJ did not err in relying on non-examining source's opinion that was based on an incomplete record where he independently considered medical records dated after the non- examining source's report).
Ferland, 2011 WL 5199989, at *4.
In her decision, the ALJ acknowledged that there was
additional medical evidence in the records following Dr. Jaffe’s
review, but concluded “there was no significant decline or
change in the physical or mental impairments, including reported
symptoms, objective findings or course of treatment, as
discussed above.” Admin. Rec. at 30. Substantial evidence
supports that conclusion. The ALJ’s review of the medical
evidence in her decision includes a thorough discussion of
claimant’s medical treatment post-dating Dr. Jaffe’s review
which support her finding that that claimant’s symptoms remained
generally stable, and that claimant’s treatment was unchanged.
See, e.g., Admin. Rec. at 25-29; see also Admin. Rec. at 472,
22 562, 565, 569. Accordingly, claimant’s argument that the ALJ
erred in relying on Dr. Jaffe’s opinion is unpersuasive.
In sum, for all the above reasons, the ALJ did not err in
her treatment of the medical opinion evidence.
II. The ALJ Properly Evaluated Claimant’s Testimony.
Claimant next argues that the ALJ’s evaluation of Perry’s
subjective statements is not supported by substantial evidence.
More specifically, claimant finds fault with the ALJ’s findings
regarding claimant’s activities of daily living and her course
of treatment.
With respect to claimant’s argument concerning her
activities of daily living, that argument is substantially
similar to claimant’s argument concerning the ALJ’s findings
with respect to Dr. McKenzie’s opinion. In her Function Report,
claimant reported that she was unable to “stand, sit or walk for
more than 10 minutes at a time.” Admin. Rec. at 280. But, as
noted, there is, at a minimum, evidence in the record that
claimant went camping (admin. rec. at 522), performed
substantial home renovations (admin. rec. at 531, 534); went out
all night until three in the morning (admin. rec. at 451), and
exercised twice a week for thirty minutes (admin. rec. at 494,
504). Performance of such activities is not consistent with the
23 ability to stand or sit for only ten minutes at a time. See
Bourinot v. Colvin, 95 F. Supp. 3d 161, 182 (D. Mass. 2015) (“It
is not unreasonable to infer that Plaintiff's capacity to engage
in these recreational activities [including going to the beach,
and playing pool and darts] is inconsistent with her testimony
that she can only walk a couple blocks, stand for only 10–15
minutes, and lift only five pounds.”) See also Blackette v.
Colvin, 52 F. Supp. 3d 101, 121 (D. Mass. 2014) (“While
Blackette is correct that such activities cannot, by themselves,
demonstrate an ability to work, they can be used — as the
hearing officer used them here — for credibility
determinations.”) (citing cases). And, claimant has not argued
— nor does the record support a finding — that her pain was
intermittent in nature, such that she could occasionally
participate in such physical activities, but was other times
largely incapacitated. Based on the court’s review of the
record, there is substantial evidence supporting the ALJ’s
findings concerning the claimant’s ADLs.
The claimant further assigns error to the ALJ’s findings
concerning the course of her treatment for her impairment, and
claimant’s response to that treatment. However, the ALJ’s
findings are well-supported by both the record, and the relevant
case law. See, e.g., Admin. Rec. at 400-01, 421, 424, 427, 430-
24 31, 472, 550, 560 - 569; see also Anderson v. Berryhill, 368 F.
Supp. 3d 128, 130-31, 135 (D. Mass. 2019) (characterizing
claimant’s treatment with pain medications and physical therapy
as conservative, and affirming ALJ’s decision to discount
medical opinion on that basis).
Substantial evidence supports the ALJ’s evaluation of the
claimant’s testimony.
III. The Vocational Expert’s Testimony Does Not Conflict With the Dictionary of Occupational Titles.
Claimant’s final argument is that the ALJ erred by failing
to reconcile conflicts between the testimony of the vocational
expert and the description of the jobs found for claimant in the
Dictionary of Occupational Titles (“DOT”). Pl.’s Mem. in
Support of Mot. to Reverse at 9.
The vocational expert testified that claimant could perform
the following jobs: laundry classifier, price marker, and
mailroom clerk. But, says claimant, she could not perform those
jobs with the mental limitations found by the ALJ in her RFC,
because those jobs require “Level 2” reasoning, according to the
DOT’s job descriptions.
As the Commissioner points out, the court has previously
held that there is no conflict between a limitation to simple,
25 routine work, and reasoning Level 2 jobs. See Hebert v. Colvin,
No. 13-CV-102-SM, 2014 WL 3867776, at *6 (D.N.H. Aug. 6, 2014)
(“This court joins the majority of district and circuit courts
in holding that an RFC limiting a claimant to jobs involving
‘simple instructions’ does not, standing alone, eliminate
positions identified in the DOT as requiring ‘Level 2’
reasoning.”) (citing cases). Accordingly, there is no conflict,
and claimant’s final argument is unpersuasive.
Conclusion
This court’s review of the ALJ’s decision is both limited
and deferential. The court is not empowered to consider
claimant’s application de novo, nor may it undertake an
independent assessment of whether she is disabled under the Act.
Rather, the court’s inquiry 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,
supported by substantial evidence — as they are in this case —
the court must sustain those findings even when there may also
be substantial evidence supporting the contrary position. Such
is the nature of judicial review of disability benefit
determinations. See, e.g., Tsarelka v. Secretary of Health &
Human Services, 842 F.2d 529, 535 (1st Cir. 1988) (“[W]e must
26 uphold the [Commissioner’s] conclusion, even if the record
arguably could justify a different conclusion, so long as it is
supported by substantial evidence.”); Rodriguez v. Secretary of
Health & Human Services, 647 F.2d 218, 222 (1st Cir. 1981) (“We
must uphold the [Commissioner’s] findings in this case if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion.”).
Having carefully reviewed the administrative record and the
arguments advanced by both the Commissioner and claimant, the
court necessarily concludes that there is substantial evidence
in the record to support the ALJ’s determination that claimant
was not “disabled,” as that term is used in the Act, at any time
prior to the date of her decision.
For the foregoing reasons, as well as those set forth in
the Commissioner’s legal memorandum, claimant’s motion to
reverse the decision of the Commissioner (document no. 7) is
denied, and the Commissioner’s motion to affirm her decision
(document no. 10) is granted. The Clerk of the Court shall
enter judgment in accordance with this order and close the case.
27 SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
January 28, 2020
cc: Daniel S. Jones, Esq. Brenda M. Golden Hallisey, Esq. Luis A. Pere, Esq.