UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Marie Therrien
v. Civil No. 16-cv-185-LM Opinion No. 2017 DNH 079 Nancy A. Berryhill, Acting Commissioner of Social Security1
O R D E R
Marie Therrien 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 supplemental security income under
Title XVI of the Social Security Act, 42 U.S.C. § 423 and
§ 1382. In support, Therrien contends that the Administrative
Law Judge (“ALJ”) erred at Step Two of the sequential analysis,
failed to properly weigh the medical opinion evidence, and
improperly assessed her subjective complaints of pain. The
Acting Commissioner moves to affirm.
1 Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23, 2017, replacing Carolyn W. Colvin. See Fed. R. Civ. P. 25(d). Standard of Review
In reviewing the 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). The court will uphold
the ALJ’s findings, even if the record could support another
conclusion, as long as “a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate
to support his conclusion.” Irlinda Ortiz v. Sec’y of Health &
Human Servs., 955 F.2d 765, 769 (1st Cir. 1991).
Background
Marie Therrien filed for social security benefits in May
2013, when she was 33 years old. She has a high school
2 education and previously worked in a fast food restaurant and as
a parking lot cashier. She lives with her children, as a single
parent.
Her medical records begin in December 2012 when she was
admitted for in-patient mental health treatment because of
depression and suicidal thoughts. On admission, Dr. David M.
Ledner recorded that Therrien’s physical examination was
“essentially unremarkable.” Therrien received medication and
group therapy. She was discharged a week later with a diagnosis
of “major depressive disorder, recurrent, severe.”
In February 2013, Therrien’s carpal tunnel syndrome was
treated with a decompression procedure. Therrien had a normal
mood and affect during an appointment with Peter Barr,
Physician’s Assistant, in March 2013.
Therrien saw her treating physician, Dr. David Kehas, in
May 2013, because of right neck and shoulder pain that Therrien
said had been intermittent over the past few years. On
examination, Dr. Kehas found that Therrien was alert,
cooperative, and in no distress. He found her cranial nerves
were intact, decreased sensation to touch and temperature in her
right arm and fingers, her right arm reflexes were brisk, and
her strength was four out of five due to pain.
3 A few days later, Dr. Kehas filled out a “Physical
Capacities” section of a document titled “Physician/Clinician
Statement of Capabilities.” He noted Therrien’s diagnoses for
cervical radiculopathy, plantar fasciitis, carpal tunnel
syndrome, and low back pain. In Dr. Kehas’s opinion, Therrien
could do work at the sedentary and light physical levels, with
some limitations on postural activities and a need to avoid
heights and hard floors. He found that she could occasionally
do manipulative activities and pushing and pulling. Dr. Kehas
also found that Therrien could do work activities for only 20 to
25 hours per week.
Therrien had her annual examination with Dr. Kehas on May
14, 2013. She reported back pain without help from medication.
Dr. Kehas noted that Therrien had a body mass index (“BMI”) of
53.75, which correlates to obesity. On examination, Dr. Kehas
found that Therrien was in no acute distress and her gait,
sensation, reflexes, cranial nerves, and motor strength were all
normal. Dr. Kehas told Therrien to come back in a year.
The same day, Leslie Clukay, A.P.R.N., completed the
“Psychological Capacities” part of the “Physician/Clinician
Statement of Capabilities.” Clukay stated that Therrien’s
psychological condition began in August 2008. Despite her
condition, Clukay indicated that Therrien had no deficits and
4 was not limited in her ability to perform a list of activities,
including socially acceptable behavior, remembering work
procedures, and driving. In some other areas, Clukay responded
“unknown.” She wrote that other medical issues had exacerbated
Therrien’s psychiatric symptoms. Clukay then stated that
Therrien was unable to work.
Therrien had an MRI of her cervical spine, also done in May
2013. Because she moved during the study, the results were
limited. The reviewing doctor reported no significant disc
desiccation or disc height loss, a disc protrusion, and mild
bulging and narrowing at C6-C7. Therrien had an MRI of her
right shoulder in June 2013. The reviewing doctor reported mild
to moderate tendinosis and narrowing.
Dr. Hugh Fairley, a state agency physician, reviewed
Therrien’s records on July 19, 2013. He found that Therrien had
severe impairments due to obesity; a skin disease, hidradenitis
suppurativa (“HS”); disorders of muscle, ligament, and fascia;
and carpel tunnel syndrome. Despite those impairments, Dr.
Fairley found that Therrien could frequently lift up to 10
pounds, could stand or walk for two hours in an eight-hour work
day, could sit for six hours, had an unlimited ability to push
or pull up to 10 pounds, and could occasionally climb ramps or
stairs. She could not do some postural activities but could
5 occasionally do others. Her ability to do manipulative
activities was not limited.
Therrien had a consultative mental health evaluation on
August 14, 2013, with Juliana Read, Ph.D. Dr. Read found that
Therrien could communicate effectively and interact
appropriately with others, could understand and remember all
instructions and procedures, and could maintain attention and
concentration. Dr. Read also found that Therrien could make
simple decisions and tolerate stress in the work setting.
Michael Schneider, Psy.D., a state agency psychologist,
reviewed Therrien’s records on August 15, 2013. Dr. Schneider
found that Therrien had a severe anxiety disorder and a
nonsevere affective disorder. Because of those issues, Therrien
had mild restrictions in her daily activities and maintaining
concentration, persistence, or pace, and moderate difficulties
in maintaining social functioning. In assessing Therrien’s
specific functions, Dr. Schneider found no limitations or no
significant limitations in most functions and moderate
limitation in her ability to interact appropriately with the
general public. Dr. Schneider’s opinion was that Therrien would
be able to work without problems from psychological symptoms
except that she should not work directly with the public.
6 Because of complaints of back, knee, and hip pain, Dr.
Brian Klagges ordered an MRI for Therrien in December 2013. The
results were completely normal. Dr. Klagges wrote that he had
no explanation for Therrien’s complaints of pain.
Therrien had gastric bypass surgery on December 23, 2013.
In February 2014, Therrien saw Dr. Klagges because of
debilitating back pain and pain radiating to her right knee.
Dr. Klagges noted Therrien’s described pain and that the pain
had not been controlled by other treatment. Lumbar medial
branch blocks administered in April 2014 did provide relief from
the pain.
In May 2014, Therrien saw Dr. Lisa Doyle because of a rash
on her abdomen that had lasted for three days. Dr. Doyle noted
that Therrien’s BMI was 34.78. Dr. Doyle also noted an
assessment of HS, along with other conditions, but diagnosed the
rash as eczema to be treated with hydrocortisone cream.
Therrien saw Dr. Kehas again in June 2014 because of back,
neck, and arm pain. On examination, Therrien was in no
distress, had a full range of motion, had some back tenderness,
and had other normal results. Dr. Kehas found that she was
improved overall and advised her to follow up with psychiatry.
Dr. Kehas completed a “Residual Functional Capacity
Questionnaire” on July 10, 2014. He stated that Therrien had
7 been diagnosed with back pain and bipolar disorder and that her
prognosis was fair. He said that Therrien had back pain with
radiation and severe depression, which would frequently
interfere with the attention and concentration necessary for
work. He also said that her medications caused drowsiness.
Although Dr. Kehas found that Therrien could walk half a
city block without rest or pain, he also found that she could
stand or walk for only five minutes at a time. He found that
she would need breaks to lie down and rest, that she could sit
for 15 minutes at a time for up to four hours in a day, and that
she would need a job that allowed her to change positions. She
could lift up to 10 pounds and had no limitations in
manipulation activities. Dr. Kehas said that Therrien was not
able to work an eight-hour day for five days per week. In
October 2014, Dr. Kehas provided his opinion that Therrien met
the listing for HS in 20 C.F.R. Part 404, Subpart P, App. 1.
Therrien sought treatment for headaches in July 2014. On
examination, John R. Pettinato, D.O., found all normal results.
He discussed a healthy lifestyle to avoid headaches.
On July 21, 2014, Therrien saw Clukay for follow up on
depression, anxiety, and personality disorder. Therrien
reported she felt pretty good because she was taking her
medications. On examination, Clukay found all normal results.
8 A hearing on Therrien’s social security applications was
held before an ALJ on October 14, 2014. Therrien testified that
she was unable to work because of pain and mood swings. She
also said that she relied on her children and other family
members to help with household activities, including care for
her children. A vocational expert also testified.
The ALJ issued a decision on November 18, 2014, concluding
that Therrien was not disabled. The ALJ found that despite
severe mental and physical impairments, Therrien retained the
ability to do sedentary work with some restrictions and that
although she could not return to her prior work there were other
jobs that she could do. The Appeals Council denied Therrien’s
request for review.
Discussion
Therrien contends that the ALJ erred in failing to find
additional severe impairments at Step Two, in assigning limited
weight to Dr. Kehas’s opinions and Clukay’s opinions, and in
failing to consider the effect of her subjective complaints of
pain on her ability to work. The Acting Commissioner moves to
affirm.
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis. 20 C.F.R. § 404.1520;
9 § 416.920.2 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 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).
I. Step Two Finding
The ALJ found that Therrien had the following severe
impairments: degenerative disc disease of the cervical spine,
right shoulder tendonitis, depression, and anxiety. Therrien
contends that the ALJ erred in failing to also find severe
impairments of obesity, HS, and carpal tunnel syndrome.4 The
Acting Commissioner argues that the ALJ made the correct finding
Because the pertinent regulations governing disability 2
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).
The first four steps are (1) determining whether the 3
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).
Although Therrien mentions carpal tunnel syndrome, she does 4
not provide any argument to show why carpal tunnel syndrome was a severe impairment.
10 at Step Two and that reversal is not necessary, in any case,
because he proceeded through the remaining steps of the
sequential analysis and considered the effects of all of her
impairments.
At Step Two, the ALJ must determine whether the claimant
has a medically determinable impairment or a combination of
impairments that is severe. § 404.1520(a)(4)(ii). The severity
requirement is a threshold test “designed to do no more than
screen out groundless claims.” McDonald v. Sec’y of Health &
Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986).
Nevertheless, to be severe within the meaning of the
regulations, the impairment or combination of impairments must
significantly limit the claimant’s “physical or mental ability
to do basic work activities.” § 404.1520(c). Errors at Step
Two are harmless as long as the ALJ found at least one severe
impairment, continued on with the sequential analysis, and
considered the effect of all impairments on the claimant’s
functional capacity. See Fortin v. Colvin, No. 3:16-cv-30019-
KAR, 2017 WL 1217117, at *10 (D. Mass. Mar. 31, 2017).
Therrien argues that obesity can increase the severity of
other impairments, citing Titles II and XVI: Evaluation of
Obesity, SSR 02-1p, 2002 WL 34686281 (Sept. 12, 2002). She
contends that her obesity “likely exacerbated” her neck and back
11 pain and sleep disturbance, but she cites no evidence in the
record that shows such exacerbations did occur. In support of a
finding that HS was a severe impairment, Therrien cites a
medical treatment note and a diagnosis that was not included in
the parties’ joint statement of material facts. See Lawton v.
Astrue, No. 11-cv-189-JD, 2012 WL 3019954, at *9 (D.N.H. July
24, 2012) (noting that an issue based on records not included in
the joint statement may have been waived). Therrien also cites
the opinion of the state agency physician that obesity and HS
were severe impairments
The ALJ explained in the decision why he did not find
obesity, HS, and carpal tunnel syndrome to be severe
impairments. With respect to obesity, the ALJ noted that
Therrien’s gastric bypass surgery in December 2013 had caused
her to lose a significant amount of weight so that her weight,
post surgery, caused no more than a minimal impact on her
functional capacity. Similarly, Therrien had a repair procedure
for carpal tunnel syndrome and the records showed no limitations
or need for treatment following the procedure. The ALJ also
found that HS was not severe because of the lack of evidence of
either treatment or symptoms. Substantial evidence in the
record supports the ALJ’s findings that obesity, HS, and carpal
tunnel syndrome were not severe impairments.
12 Even if the ALJ’s findings at Step Two were wrong, however,
any error would be harmless because the ALJ did find severe
impairments. Based on those impairments, the ALJ continued the
sequential analysis and considered the effects of all of
Therrien’s impairments in the process. Therefore, no reversible
error occurred.
II. Opinion Evidence
Therrien contends that the ALJ erred in assigning little
weight to the opinions of Dr. Kehas and Clukay. She argues that
Dr. Kehas’s opinions should have been given controlling weight
because he is her treating physician, that the ALJ failed to
evaluate the opinions as required by § 404.1527, and that
evidence in the record supported Dr. Kehas’s opinions. Although
she concedes that Clukay is not an acceptable medical source,
Therrien argues that the ALJ should have considered Clukay’s
opinions because of her treatment relationship with Therrien.
The Acting Commissioner contends that the ALJ properly
discounted both opinions.
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 statements from
acceptable medical sources that reflect judgments about the
nature and severity of [the claimant’s] impairment(s), including
13 [the claimant’s] symptoms, diagnosis and prognosis, what [the
claimant] can still do despite impairment(s), and [the
claimant’s] physical or mental restrictions.” § 404.1527(a)(1).
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 support or detract
from the opinion. § 404.1527(c).
A. Dr. Kehas
“[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 ---, 2016 WL 6561550, 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, No, 16-CV-
10145-LTS, 2017 WL 489680, at *2 (D. Mass. Feb. 6, 2017). While
the regulations require an ALJ to consider the factors in
14 § 404.1527(c) and give good reasons for the weight attributed to
a treating source’s opinion, there is no requirement that the
ALJ explicitly examine each listed factor in the decision. See
McNelley v. Colvin, No. 15-1871, 2016 WL 2941714, at *2 (1st
Cir. Apr. 28, 2016); accord Genereux v. Berryhill, No. 15-13227-
GAO, 2017 WL 1202645, at *2 (D. Mass. Mar. 31, 2017).
The ALJ reported in the decision Dr. Kehas’s responses in
the May 2013 physician statement of capabilities, and the July
2014 residual functional capacity questionnaire. The ALJ noted
that Dr. Kehas indicated greater limitations in the 2014
questionnaire than in the 2013 statement but provided no
explanation for the change and did not indicate that Therrien
had any worsening symptoms to account for the change. The ALJ
also noted that Dr. Kehas did not explain his limitation that
Therrien could not do full-time work. The ALJ stated that the
inconsistency between the two opinions without explanation made
the opinions less persuasive.
The ALJ also found that Dr. Kehas’s opinions were not
supported by or consistent with the record evidence. In
particular, the ALJ noted that Therrien’s examination records
did not show the abnormalities or deficits that would support
the limitations in Dr. Kehas’s opinions and that Dr. Kehas did
not explain why he found those limitations and restrictions.
15 The ALJ then reviewed Therrien’s medical records and treatment
notes in detail and concluded that Dr. Kehas’s opinions were not
consistent with that record evidence. As a result, the ALJ gave
Dr. Kehas’s opinions little weight.
Therrien faults the ALJ for failing “to apply the
404.1527(c) checklist when discounting the opinions of Dr.
Kehas.” As noted above, however, the ALJ was not required to
explicitly address each factor in § 404.1527(c).
Therrien argues that Dr. Kehas did not need to provide an
explanation for the changes in his opinions between 2013 and
2014 because the record shows that her condition worsened. She
asserts that the ALJ bore the burden to find an explanation.
Therrien is mistaken. As demonstrated by the ALJ’s review of
her medical records, her condition did not worsen between 2013
and 2014. In addition, the ALJ is not obligated to contact Dr.
Kehas to request an explanation when the record does not support
Dr. Kehas’s opinions.
Based on some treatment notes that she believes support her
claim of disabling symptoms, Therrien contends that the ALJ’s
analysis of Dr. Kehas’s opinion was faulty. She does not
explain how these treatment notes support Dr. Kehas’s opinions.
In addition, as the ALJ’s review of the record demonstrates,
substantial evidence supports his findings. See Irlinda Ortiz,
16 955 F.2d at 769 (1st Cir. 1991) (holding that ALJ’s finding must
be affirmed if supported by substantial evidence even if other
evidence exists to the contrary).
Therefore, the ALJ did not err in his assessment of Dr.
Kehas’s opinions.
B. Leslie Clukay, A.P.R.N.
The ALJ assigned little weight to Clukay’s opinion, which
was provided in a completed psychological capabilities
questionnaire, both because she is not an acceptable medical
source under the regulations and her opinion was internally
inconsistent and inconsistent with other record evidence.
Therrien argues that although she is not an acceptable medical
source, the ALJ was required to consider Clukay’s opinion and
was required to explain his consideration of the factors
provided in § 404.1527(d). In support, Therrien cites Titles II
and XVI: Considering Opinions and Other Evidence from Sources
Who Are Not “Acceptable Medical Sources” in Disability Claims;
Considering Decision on Disability by Other Governmental and
Nongovernmental Agencies, SSR 06-3p, 2006 WL 2329939 (Aug. 9,
2006).
Contrary to Therrien’s charge of error, the ALJ did
consider Clukay’s opinion. The ALJ assigned the opinion little
weight because of its internal inconsistencies in describing
17 Therrien’s limitations and because it was inconsistent with
other evidence of psychiatric treatment in the record, which the
ALJ reviewed in detail. As such, the ALJ properly assessed
Clukay’s opinion and cited record evidence that supports that
assessment.
III. Subjective Complaints of Pain—Credibility
Therrien contends that the ALJ failed to consider the
effect of her subjective complaints of pain on her ability to
work. She argues that there is no indication in the decision
that the ALJ followed the requirements of Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s
Statements, SSR 96-7p, 1996 WL 374186 (July 2, 1996);5 §
404.1529, and Avery v. Sec’y of Health & Human Servs., 797 F.2d
19, 28 (1st Cir. 1986). Therrien is mistaken.
In assessing the intensity, persistence, and limiting
effects of Therrien’s impairments, the ALJ cited SSR 96-7p and
listed the factors to be considered under § 416.929, the Title
XVI rule that is the analog to § 404.1529. The ALJ considered
Therrien’s statements about her activities, symptoms, and
limitations. The ALJ found specific inconsistencies in
5 SSR 96-7p has been superseded by SSR 16-3p, which was issued on March 16, 2016, after the ALJ issued the decision.
18 Therrien’s descriptions of her abilities and functioning, along
with inconsistencies between Therrien’s allegations of
limitation and her treatment records, that undermined the
persuasiveness of her subjective complaints. As such, the ALJ
properly considered the factors necessary to assess Therrien’s
credibility with respect to her subjective complaints of pain.
See Misterka v. Colvin, No. 15-cv-10203-MGM, 2016 WL 5334656, at
*6 (D. Mass. Sept. 22, 2016) (noting that ALJ need not expressly
analyze each factor).
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. 12) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
April 21, 2017
cc: Howard D. Olinsky, Esq. Stephan Patrick Parks, Esq. T. David Plourde, Esq.