LUMPKIN v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
19
REPORT AND RECOMMENDED DECISION re 13 Social Security Statement of Errors/Fact Sheet. Objections to R&R due by 2/14/2018. By MAGISTRATE JUDGE JOHN H. RICH III. (mnw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ASHLEY L. LUMPKIN,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant
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No. 2:17-cv-00081-NT
REPORT AND RECOMMENDED DECISION1
This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal
raises the question of whether the administrative law judge (“ALJ”) supportably found the plaintiff
capable of performing work existing in significant numbers in the national economy. The plaintiff
seeks remand on the basis that the ALJ erred in his assessment of five separate medical opinions
submitted in her case as well as statements provided by her mother. See Plaintiff’s Statement of
Errors (“Statement of Errors”) (ECF No. 13) at 4-15. I find no error, and, accordingly, recommend
that the court affirm the commissioner’s decision.
Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. §§ 404.1520,
416.920; Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ
found, in relevant part, that the plaintiff met the insured status requirements of the Social Security
1
This action is properly brought under 42 U.S.C. §§ 405(g) and 1383(c)(3). The commissioner has admitted that the
plaintiff has exhausted her administrative remedies. The case is presented as a request for judicial review by this court
pursuant to Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific errors upon
which she seeks reversal of the commissioner’s decision and to complete and file a fact sheet available at the Clerk’s
Office, and the commissioner to file a written opposition to the itemized statement. Oral argument was held before
me pursuant to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral argument their respective positions
with citations to relevant statutes, regulations, case authority, and page references to the administrative record.
1
Act through September 30, 2017, Finding 1, Record at 23; that she had severe impairments of
degenerative disc disease, fibromyalgia, headaches, a mood disorder, and an anxiety disorder,
Finding 3, id. at 23; that she had the residual functional capacity (“RFC”) to perform medium work
as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), except that she was able to lift and carry
25 pounds frequently and 50 pounds occasionally, sit for six hours in an eight-hour workday, stand
or walk for six hours in an eight-hour workday, frequently climb ramps and stairs, and occasionally
stoop, crouch, and climb ladders, ropes, and scaffolds, and retained the ability, on a sustained
competitive basis, to understand and remember simple tasks, use judgment in making simple workrelated decisions, respond appropriately to supervisors, coworkers, and usual work situations not
involving the public, and adapt to changes in ordinary work settings, Finding 5, id. at 26-27; that,
considering her age (29 years old, defined as a younger individual, on her alleged, amended
disability onset date, April 12, 2013), education (at least high school), work experience
(transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in
the national economy that she could perform, Findings 7-10, id. at 33-34; and that she, therefore,
had not been disabled from April 12, 2013, through the date of the decision, January 26, 2016,
Finding 11, id. at 34-35. The Appeals Council declined to review the decision, id. at 1-3, making
the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis
v. Sec’y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner’s decision is whether the determination made
is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Sec’y of
Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must
be supported by such relevant evidence as a reasonable mind might accept as adequate to support
2
the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec’y of
Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The ALJ reached Step 5 of the sequential evaluation process, at which stage the burden of
proof shifts to the commissioner to show that a claimant can perform work other than her past
relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of
the commissioner’s findings regarding the plaintiff’s RFC to perform such other work. Rosado v.
Sec’y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
I. Discussion
The plaintiff seeks remand on the basis of challenges to the ALJ’s assessment of the
opinions of four agency examining consultants, Roger Ginn, Ph.D., Edward Quinn, Ph.D., Family
Nurse Practitioner (“F.N.P.”) Stacie Kunas, and Pamela J. Wansker, D.O., the opinion of treating
physician Peggy Wyman, M.D., and statements of the plaintiff’s mother, Tammy Cook. See
Statement of Errors at 4-15.2 For the reasons that follow, I find no error, agreeing with the
commissioner that the plaintiff’s arguments as a whole amount to an impermissible invitation to
the court to reweigh the evidence before the ALJ. See Defendant’s Opposition to Plaintiff’s
Itemized Statement of Errors (“Opposition”) (ECF No. 14) at 5, 8; Irlanda Ortiz v. Sec’y of Health
& Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (“[T]he resolution of conflicts in the evidence
is for the [commissioner], not the courts.”).
The plaintiff’s counsel also contended at oral argument that, because the plaintiff amended her alleged onset date of
disability to April 12, 2013, see Record at 20, the ALJ erred in relying on the 2012 opinions of agency nonexamining
consultants, which became stale because they preceded that date. As counsel for the commissioner rejoined, this point
was not raised in the plaintiff’s statement of errors and, accordingly, is waived. See, e.g., Farrin v. Barnhart, No. 05144-P-H, 2006 WL 549376, at *5 (D. Me. Mar. 6, 2006) (rec. dec., aff’d Mar. 28, 2006) (“Counsel for . . . the Social
Security bar generally are hereby placed on notice that in the future, issues or claims not raised in the itemized
statement of errors required by this court’s Local Rule 16.3(a) will be considered waived and will not be addressed by
this court.”) (footnote omitted).
2
3
A. Dr. Ginn
Dr. Ginn examined the plaintiff on June 18, 2012, diagnosing her with bipolar disorder and
generalized anxiety disorder with moderate agoraphobia, describing her as “a woman with some
significant problems with anxiety as well as bipolar disorder[,]” and stating that he did “not think
she c[ould] get out of the house on a regular and consistent basis to be able to work” at that time.
Record at 1124. He explained, “I think her anxiety level is too high and there are still issues with
periodic manic episodes.” Id.
The ALJ accorded the Ginn opinion little weight, explaining:
Dr. Ginn examined the [plaintiff] on one occasion, and the degree of limitations
cited is not supported and appears to be based in large part on the [plaintiff’s]
subjective allegations. This opinion is also inconsistent with Dr. Ginn’s statement
earlier in the report that the [plaintiff] was only “mildly” anxious, and the record as
a whole, including the State agency assessments, and the [plaintiff’s] reported
activities of daily living.
Id. at 31 (citation omitted).
The plaintiff faults this assessment on the bases that the ALJ, as a layperson, placed undue
weight on Dr. Ginn’s observation that she appeared “mildly anxious[,]” ignoring the totality of his
expert findings on examination, and wrongly rejected his opinion in part because of his status as a
onetime examining consultant, a rationale that runs “counter to the stated purpose of sending a
claimant to a consultative exam.” Statement of Errors at 5-6. She adds that the ALJ’s reliance on
the latter rationale was further weakened by his selectivity in its use: he accorded most of Dr.
Quinn’s opinion great weight although Dr. Quinn, too, was an agency examining consultant. See
id. at 6. She argues that, pursuant to Social Security Ruling 96-2p (“SSR 96-2p”), the ALJ should
have given the Ginn opinion substantial or great weight. See id.
As the commissioner rejoins, see Opposition at 6, SSR 96-2p is inapposite because it
pertains to assessment of the opinions of treating, rather than examining, sources, see SSR 96-2p,
4
reprinted in West’s Social Security Reporting Service Rulings 1983-1991 (Supp. 2017), at 110. “A
onetime examining consultant is not a ‘treating source’ and therefore is not subject to the ‘treating
source’ rule, pursuant to which a medical opinion may be rejected only for good reasons.” Smythe
v. Astrue, No. 2:10-cv-251-GZS, 2011 WL 2580650, at *5 (D. Me. June 28, 2011) (rec. dec., aff’d
July 21, 2011) (citing 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2), since redesignated as 20
C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2)). Indeed, there is authority that “failure by the ALJ
to articulate or explain the weight given to the reports of the examining or consultative physicians
can be harmless error.” Id. (citation and internal quotation marks omitted).3
In any event, as the commissioner argues, see Opposition at 7, even if the treating source
rule applied, the ALJ supplied good reasons for his attribution of little weight to the Ginn opinion,
observing that the cited limitations appeared to based in large part on the plaintiff’s subjective
allegations and were inconsistent with the record as a whole, including the opinions of agency
nonexamining consultants and the plaintiff’s activities of daily living.
See Record at 31;
Campagna v. Berryhill, No. 2:16-cv-00521-JDL, 2017 WL 5037463, at *4 (D. Me. Nov. 3, 2017)
(rec. dec., aff’d Jan. 2, 2018) (“lack of support and inconsistency with other substantial evidence
of record” among good reasons for affording treating source opinion little or no weight); Day v.
Berryhill, No. 1:16-cv-00593-JAW, 2017 WL 5037454, at *5 (D. Me. Nov. 2, 2017) (rec. dec.,
aff’d Nov. 20, 2017) (“inconsistency of treating source’s opinion with claimant’s activity level”
3
At oral argument, the plaintiff’s counsel distinguished Smythe on the basis that Smythe did not concern a situation,
as here, in which an ALJ elected to give great weight to the opinions of two agency nonexamining consultants while
rejecting in whole or in part the largely consistent opinions of four agency examining consultants and a treating
physician. In such circumstances, he contended, an ALJ must supply good reasons for rejecting multiple consistent
opinions of examining consultants. Yet, the fact that an expert’s opinion is consistent with those of other experts does
not, in itself, entitle that opinion to greater weight. See, e.g., Anderson v. Astrue, No. 1:11-cv-476-DBH, 2012 WL
5256294, at *10 (D. Me. Sept. 27, 2012) (rec. dec., aff’d, Oct. 23, 2012) (consistency between treating sources’
opinions did not entitle them to additional weight when ALJ supportably found them inconsistent with the record as
a whole). Furthermore, even had the ALJ been obliged to supply good reasons for his assignment of the weight given
agency examining consultants’ opinions in these circumstances, he did so as discussed herein.
5
and “reliance on a claimant’s subjective allegations of pain” among good reasons for affording a
treating source opinion little or no weight).
The ALJ did not err in also factoring in Dr. Ginn’s status as a onetime examining
consultant: an opinion author’s relationship with a claimant, if any, is among several factors
recognized as relevant to the evaluation of the opinion. See 20 C.F.R. §§ 404.1527(c)(1)-(2),
416.927(c)(1)-(2). There was no fatal inconsistency in his decision to give great weight to much
of the Quinn opinion: while Dr. Quinn also was an agency examining consultant, the ALJ
explained that he found those portions of his opinion generally supported by his findings and
consistent with agency nonexamining consultants’ assessments. See Record at 32. As the
commissioner observes, see Opposition at 6 n.5, an ALJ is not obliged to slavishly reference every
relevant factor set forth in 20 C.F.R. §§ 404.1527(c) and 416.927(c) in weighing opinion evidence,
see, e.g., Golfieri v. Barnhart, No. 06-14-B-W, 2006 WL 3531624, at *4 (D. Me. Dec. 6, 2006)
(rec. dec., aff’d Dec. 29, 2006).
Nor, finally, did the ALJ err in perceiving a clash between Dr. Ginn’s finding on
examination of mild anxiety and his conclusion that the plaintiff’s high anxiety, as well as bipolar
symptoms, prevented her from sustaining work, particularly in view of his further finding that Dr.
Ginn relied in large part on the plaintiff’s subjective allegations in forming his opinion.
B. Dr. Quinn
Dr. Quinn examined the plaintiff on July 28, 2015, diagnosing her with generalized anxiety
disorder, panic disorder without agoraphobia, bipolar I disorder, most recent episode depressed,
moderate, and post-traumatic stress disorder, and concluding:
[The plaintiff] should be able to follow work rules. She may have difficulties
relating to others due to her anxiety and depression. She should be able to use
appropriate gross judgment. She may have some difficulties with stressors. She
should be able to function independently and difficulties with attention,
6
concentration, persistence, pace, and memory were not observed beyond cognitive
limitations. She should be able to complete at least simple job instructions if not
more complex and detailed job instructions based on her cognitive abilities;
however, her emotional anxiety may impact her ability to function in occupational
settings. She should be able to maintain personal appearance. She may have some
difficulties with emotional stability. She may have some difficulties in social
settings. She may have some issues with reliability.
Record at 2458-59. On the same date, he completed a form addressing the plaintiff’s ability to
perform mental work tasks in which he indicated that she had a range of no to mild limitations in
her ability to understand, remember, and carry out simple instructions and make judgments on
simple work-related decisions and mild to moderate limitations in her ability to interact
appropriately with the public, supervisors, and co-workers, and that she “may have issues relating
to others due to her anxiety and depression.” Id. at 2461-62. He elaborated: “She appeared quite
anxious during the interview; she would have difficulties functioning in a job setting with the level
of anxiety observed.” Id. at 2462.
The ALJ gave the Quinn opinion a mix of great and little weight, explaining:
The degree of limitations cited is generally supported by Dr. Quinn’s mental status
examination findings and consistent with the State agency assessments, and has
been given great weight. However, Dr. Quinn did not quantify the degree of
difficulty functioning in a job setting the [plaintiff] would have, and this statement
is inconsistent with multiple observations by other examiners that the [plaintiff] is
only “mildly” anxious. This portion of his opinion has therefore been given little
weight.
Id. at 32 (citations omitted).
The plaintiff contends that the ALJ erred in according little weight to Dr. Quinn’s finding
of difficulty functioning in a job setting based on a “highly selective” assessment that ignored Dr.
Quinn’s own observation on examination that the plaintiff was “quite anxious[,]” Dr. Ginn’s
statement that the plaintiff’s anxiety was too high to permit her to work on a regular basis, and Dr.
7
Wyman’s statement that “pain and fatigue are triggers for [the plaintiff’s] anxiety.” Statement of
Errors at 6-7 (quoting Record at 1124, 2462, 2706).
As the commissioner observes, see Opposition at 4 n.1, the ALJ did not ignore Dr. Quinn’s
own finding that the plaintiff was quite anxious. He acknowledged that Dr. Quinn had indicated
that the plaintiff “would have difficulty functioning in a job setting with the level of anxiety
observed.” Record at 32 (citation omitted). However, he deemed that statement inconsistent with
multiple observations by other examiners that the plaintiff was only mildly anxious. See id. As
the commissioner argues, see Opposition at 5, despite the existence of some evidence to the
contrary, this statement was supported by substantial evidence, see, e.g., Record at 2265, 2269,
2274, 2482, 2485, 2488, 2491, 2494, 2497, 2500, 2595, 2680. That was all that was required. See,
e.g., Manso-Pizarro, 76 F.3d at 16.
C. F.N.P. Kunas
F.N.P. Kunas examined the plaintiff on June 22, 2012, diagnosing her with fibromyalgia
with multiple myalgias and chronic headache and concluding:
[The plaintiff] appears able to perform the following work-related activities:
Sitting, carrying, handling objects, hearing, speaking, and traveling. She may have
difficulty standing, walking, or lifting for extended periods of time secondary to
subjective myalgias associated with fibromyalgia. Unfortunately, her condition is
one that causes unpredictable flare-ups of pain with residual aftereffects limiting
her ability to perform such tasks in a reliable and predictable manner. Some days
are reported as better than others. Certainly, she is able to perform most common
work-related activities, but the duration of such may be limited secondary to pain
and may affect her for days after[,] leading to truancy.
Record at 1131.4 The ALJ found:
The parties debate whether F.N.P. Kunas’ report was co-signed by a physician, Alan Bean, M.D. See Statement of
Errors at 7; Opposition at 5 n.4. As the commissioner notes, see Opposition at 5 n.4, the signature at the end of the
report is illegible, and nothing in the report itself suggests that a physician reviewed or endorsed it, see Record at
1127-31, although the plaintiff’s counsel represented at oral argument that F.N.P. Kunas and Dr. Bean perform
consultative examinations in tandem. I need not address this conflict. Because I find that the ALJ’s assessment of
this opinion was proper even by standards applicable to treating physicians, it is immaterial whether or not it was
endorsed by a physician.
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Ms. Kunas examined the [plaintiff] on one occasion, and she failed to further
quantify the degree of limitations cited. Her opinion is not supported and appears
to be based in part on the [plaintiff’s] subjective complaints of pain. This opinion
is also inconsistent with the record as a whole, including the State agency
assessments, and the reported activities of daily living.
Id. at 31.
The plaintiff first contends that remand is warranted because the ALJ failed to rectify the
error that was a basis for the Appeals Council’s remand of his earlier adverse decision: his failure
to weigh the Kunas opinion. See Statement of Errors at 8; Record at 214-15. That is not so. While
the ALJ in his earlier decision merely recited Kunas’ findings, giving no indication how he
weighed her opinion, he made clear in the instant decision that he accorded it no weight,
articulating several reasons for doing so. Compare Record at 31 with id. at 200.
The plaintiff nonetheless contends that the ALJ’s handling of the Kunas opinion amounts
to a second failure to weigh it properly because he failed to appreciate that her opinion was based
on the totality of her examination and evaluation, including her objective findings, and ignored its
consistency with the findings of Dr. Wansker, the agency consultant who examined the plaintiff
on remand from the Appeals Council. See Statement of Errors at 8-10. She asserts that the ALJ
violated Social Security Ruling 16-3p (“SSR 16-3p”) when, having found that she had a medically
determinable impairment that could reasonably be expected to cause her alleged symptoms, he
failed to evaluate their intensity and persistence and determine the extent to which they limited her
ability to work. See id. at 9.
As the commissioner observes, see Opposition at 8, SSR 16-3p does not apply to the ALJ’s
February 2016 decision. The ruling took effect on March 16, 2016, and this court has declined to
apply it retroactively. See Coskery v. Berryhill, No. 1:16-cv-00477-NT, 2017 WL 2417847, at *1,
4 (D. Me. June 4, 2017) (rec. dec., aff’d July 7, 2017).
9
In any event, as the commissioner further notes, see Opposition at 7, the ALJ found that
the Kunas opinion was based only “in part” – not entirely – on the plaintiff’s subjective pain
allegations and supplied several additional reasons for rejecting it, including that F.N.P. Kunas
was a onetime examiner, that she failed to quantify the degree of limitations cited, and that her
opinion was inconsistent with the record as a whole, including the assessments of agency
nonexamining consultants and the plaintiff’s activities of daily living, see Record at 31.
In so doing, as the commissioner observes, see Opposition at 7, the ALJ alluded to portions
of his decision detailing the plaintiff’s treatment history, including findings on examination, and
activities of daily living, see Record at 27-30; Ryder v. Colvin, No. 1:15-cv-00509-GZS, 2016 WL
7048690, at *4 (D. Me. Dec. 5, 2016) (rec. dec., aff’d Jan. 9, 2017) (ALJ’s detailed review of
medical evidence of record, “preceding his statement that the totality of the evidence d[id] not
support [physician’s] opinion, set[] forth ample detail of the ways in which those of [the
physician’s] conclusions that the [ALJ] found ‘excessive’ were not supported by the weight of the
evidence”).
These constituted good reasons to give little to no weight even to the opinion of a treating
source. See, e.g., Campagna, 2017 WL 5037463, at *4; Day, 2017 WL 5037454, at *5. The fact
that the Kunas findings were consistent with those of Dr. Wansker did not, in itself, entitle the
Kunas opinion to greater weight. See, e.g., Anderson, 2012 WL 5256294, at *10.
D. Dr. Wansker
Dr. Wansker examined the plaintiff on August 24, 2015, diagnosing her, inter alia, with
chronic myofascial back pain with apparent lumbosacral degenerative disc disease exacerbated by
a motor vehicle accident and migraine cephalgia. See Record at 2468. She stated:
[The plaintiff] probably should not do anything that requires her to lift more than
30 pounds, [or] do repetitive motions with pushing, pulling, crawling, kneeling,
10
stooping, or bending. She should probably not sit without stretching every 20
minutes or stand or walk for more than 20 minutes without rest. She cannot
sometimes use the foot pedal to drive, but otherwise has no specific restrictions to
hearing, speaking, or traveling.
Id. Dr. Wansker also completed a form assessing the plaintiff’s ability to perform physical work
activities, indicating that she could frequently lift/carry up to 10 pounds and occasionally lift/carry
up to 20 pounds; sit, stand, or walk for up to 20 minutes at a time, sitting for a total of up to seven
hours in an eight-hour workday and standing or walking for a total of up to two hours each in an
eight-hour workday; could only occasionally push/pull with her hands and never operate foot
controls with either foot; and had additional postural and environmental limitations. See id. at
2469-74. In response to the question, “If the total time for sitting, standing and walking does not
equal or exceed 8 hours, what activity is the individual performing for the rest of the 8 hours?” she
replied, “resting (reclining) stretching[.]” Id. at 2470.
The ALJ gave Dr. Wansker’s opinions little weight, explaining:
Dr. Wansker examined the [plaintiff] on one occasion, and the degree of exertional,
postural, and upper and lower extremity limitations cited is not well supported, is
inconsistent with the State agency assessments and the [plaintiff’s] reported
activities of daily living, and appears to be based in part on the [plaintiff’s]
subjective allegations.
Id. at 32.
The plaintiff asserts that the ALJ’s conclusory statement that Dr. Wansker’s degree of
exertional, postural, and upper and lower extremity limitations was not well supported is erroneous
in view of her finding on examination of “paravertebral muscle spasms and pain to palpation of
the L3/4, L4/5, and L5/S1 segment of her low back.” Statement of Errors at 10-11 (quoting Record
at 2468). She contends that this objective physical finding “clearly supports Dr. Wansker’s
opinion that during a normal workday, when the [p]laintiff is not ‘sitting, standing and walking,’
she must be ‘resting (reclining) stretching.’” Id. at 11 (quoting Record at 2470).
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Finally, she reiterates the arguments made in connection with the Ginn opinion that the
ALJ’s reliance on the onetime nature of a consultative examination was misplaced and that,
pursuant to SSR 96-2p, he should have afforded the Wansker opinions substantial or great weight.
See id. These latter arguments founder for the reasons discussed above in connection with the
Ginn opinion.
As to the plaintiff’s former arguments regarding objective physical finding, while Dr.
Wansker’s finding of spasms and pain to palpation of the plaintiff’s lower spine provides some
objective support for her opinion, it does not “clearly support[]” the precise limitations assessed.
Statement of Errors at 11. In any event, the ALJ deemed the Wansker opinion to be partly based
on the plaintiff’s subjective allegations and inconsistent with other evidence of record, including
the opinions of agency nonexamining consultants and the plaintiff’s activities of daily living. See
Record at 32. These constituted good reasons to give little to no weight even to the opinion of a
treating source. See, e.g., Campagna, 2017 WL 5037463, at *4; Day, 2017 WL 5037454, at *5.
E. Dr. Wyman
Dr. Wyman, who had treated the plaintiff since September 28, 2004, completed a
questionnaire on December 18, 2015, indicating that, if the plaintiff had attempted to return to fulltime work at any time since March 13, 2012, she would have missed at least one to two workdays
a month due to the combination of symptoms of her severe physical and mental conditions. See
Record at 2705. She explained: “Suspect neck pain would flare, causing headaches to flare[,]”
adding, “[a]ny work stress is likely to cause anxiety to flare.” Id. Dr. Wyman further indicated
that, if the plaintiff had attempted to return to full-time work at any time since March 13, 2012,
the distracting effect of her chronic neck and back pain and chronic headaches would have caused
her to be unable to consistently perform her work duties on a regular and continuous basis. See id.
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at 2705-06. She explained: “Chronic pain and chronic fatigue are unlikely to allow this patient to
work on a consistent basis[,]” adding, “This pain and fatigue are triggers for her anxiety.” Id. at
2706. Finally, she stated, “Sitting or standing in one position for longer than twenty minutes tends
to trigger neck and back pain.” Id.
The ALJ gave the Wyman opinion little weight, explaining:
While Dr. Wyman has treated the [plaintiff] for many years, her opinion has been
given little weight as the degree of limitations cited is not supported in her
contemporaneous treatment records and is based in large part on the [plaintiff’s]
subjective allegations.
Id. at 33.
The plaintiff asserts that the ALJ erred in not giving the Wyman opinion great or
controlling weight pursuant to SSR 96-2p given (i) its consistency with Dr. Ginn’s opinion, Dr.
Wansker’s sitting and standing/walking restrictions, and F.N.P. Kunas’ opinion that the plaintiff’s
condition causes unpredictable flare-ups of pain that limit her ability to perform tasks in a reliable
or predictable manner, possibly affecting her for days after, leading to truancy, (ii) the fact that it
was not inconsistent with Dr. Quinn’s opinions, and (iii) the fact that Dr. Wyman provided
opinions on issues not addressed by any other examining consultant. See Statement of Errors at
12-13.
As the commissioner rejoins, see Opposition at 8, this argument invites the court to reweigh
the evidence before the ALJ, see, e.g., Irlanda Ortiz, 955 F.2d at 769. As previously noted, the
fact that there is consistency among or between opinions in the record does not entitle them to
great weight when, as here, an ALJ points to other substantial evidence of record that is
inconsistent with them. See, e.g., Anderson, 2012 WL 5256294, at *10.
Beyond this, the plaintiff does not come to grips with the ALJ’s assignment of little weight
to the Wyman opinion based on its inconsistency with Dr. Wyman’s own contemporaneous
13
treatment records and its adoption of restrictions based in large part on the plaintiff’s subjective
allegations, see Record at 33, which constitute sufficient reasons to assign little to no weight to the
opinion of a treating physician, see, e.g., Campagna, 2017 WL 5037463, at *4; Day, 2017 WL
5037454, at *5; see also, e.g., SSR 96-2p at 110 (“[C]ontrolling weight may not be given to a
treating source’s medical opinion unless the opinion is well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and “also is ‘not inconsistent’ with the other
substantial evidence in the case record.”).5 There is, accordingly, no basis on which to disturb the
weight accorded to the Wyman opinion.
F. The Statements of Ms. Cook
The plaintiff’s mother, Ms. Cook, submitted a Third Party Function Report dated May 10,
2012, see Record at 417-24, as well as a letter dated October 17, 2013, see id. at 466, in support
of her daughter’s applications for benefits.
In her Third Party Function Report, Ms. Cook indicated that the plaintiff always had
headaches and was tired, never wanted to do much, sometimes got overwhelmed and angry, got
depressed quickly and cried a lot, complained of pain a lot, and was limited in her ability to lift,
bend, follow instructions, and get along with others. See id. at 417-22.
In her letter, Ms. Cook described ways in which she assisted the plaintiff, including helping
her every day before she (Ms. Cook) went to work, making sure she took her medications and
setting them up for her, helping get the plaintiff’s children ready for school, speaking with the
plaintiff on the phone several times a day, at times leaving work because of the plaintiff’s
In an abundance of caution, the commissioner catalogues examples of instances in which Dr. Wyman’s progress
notes indicate that the plaintiff’s headaches and back and neck conditions were less limiting than described in her
opinion. See Opposition at 9-10. Because the plaintiff has not argued that the ALJ’s finding of inconsistency between
Dr. Wyman’s opinion and contemporaneous progress notes was unsupported by substantial evidence, see Statement
of Errors at 11-13, I need not consider this alternative argument.
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headaches, going to the plaintiff’s house after work to check on her, help her cook dinner, and help
bathe her children and get them to bed, shopping with her, and sometimes finishing her shopping
for her when her anxiety was such that she had to leave. See id. at 466. She indicated that the
plaintiff needed more help on some days than others, had difficulty with crowds and anxiety, had
pain and headaches that interfered with her ability to get out of the house, and on many days stayed
in bed. See id. She added: “Without my help, [the plaintiff] would not be able to live on her own
with children and maintain her household with the bad headaches and often the pain in her body.”
Id.
The ALJ gave Ms. Cook’s statements “little to no weight as they are from a non-medical
and non-impartial source,” “the degree of impairments cited is not substantiated in the evidence[,]”
and “[t]he degree of assistance reported by [Ms. Cook] is also inconsistent with the [plaintiff’s]
August 5, 2013, statement to examiners that her mother works and she does not have much of a
support system.” Id. at 31 (citation omitted).
The plaintiff contends that the ALJ erred in discounting Ms. Cook’s statements on the basis
that they were from a non-medical and non-impartial source, in violation of Social Security Ruling
06-03p (“SSR 06-03p”), and in deeming her statements inconsistent with each other and with those
of the plaintiff, including the plaintiff’s statements in her own Function Report dated May 9, 2012.
See Statement of Errors at 13-15; Record at 409.
On the first point, as the plaintiff observes, see Statement of Errors at 13, SSR 06-03p
provides that the commissioner may use evidence from “other sources” besides “acceptable
medical sources,” including parents, “to show the severity of the individual’s impairment(s) and
how it affects the individual’s ability to function.” SSR 06-03p, reprinted in West’s Social Security
Reporting Service Rulings 1983-1991 (Supp. 2017), at 327 (internal quotation marks omitted).
15
The ruling acknowledges that “information from such ‘other sources’ may be based on special
knowledge of the individual and may provide insight into the severity of the impairment(s) and
how it affects the individual’s ability to function.” Id. It adds, “In considering evidence from
‘non-medical sources’ who have not seen the individual in a professional capacity[,]” such as
parents, “it would be appropriate to consider such factors as the nature and extent of the
relationship, whether the evidence is consistent with other evidence, and any other factors that tend
to support or refute the evidence.” Id. at 331. Yet, it does not provide that any particular weight
be given to a lay witness’s statements or proscribe consideration of such individuals’ partiality or
lack of medical training. In any event, the ALJ did consider the consistency of Ms. Cook’s
statements with other evidence. See Record at 31.
Even as to “other sources” who have seen a claimant in a professional capacity, SSR 0603p does not require that an ALJ afford any particular weight to, or even necessarily discuss, their
statements:
Since there is a requirement to consider all relevant evidence in an individual’s case
record, the case record should reflect the consideration of opinions from medical
sources who are not “acceptable medical sources” and from “non-medical sources”
who have seen the claimant in their professional capacity. Although there is a
distinction between what an adjudicator must consider and what the adjudicator
must explain in the disability determination or decision, the adjudicator generally
should explain the weight given to opinions from these “other sources,” or
otherwise ensure that the discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning,
when such opinions may have an effect on the outcome of the case.
SSR 06-03p at 331. The ALJ’s handling of Ms. Cook’s statements met or exceeded standards
applicable even to that category of “other sources.”
On the second point, as the commissioner notes, see Opposition at 10-11, the ALJ did not
find Ms. Cook’s statements either inconsistent with each other or inconsistent with the plaintiff’s
statements generally, see Record at 31. Rather, he deemed them inconsistent with an August 5,
16
2013, statement by the plaintiff. See id.; Record at 2267. The plaintiff’s reliance on her May 9,
2012, statement as evidencing the consistency between her statements and those of her mother,
see Statement of Errors at 14-15; Record at 409, accordingly misses the mark.
II. Conclusion
For the foregoing reasons, I recommend that the commissioner’s decision be AFFIRMED.
NOTICE
A party may file objections to those specified portions of a magistrate judge’s report or
proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for
which de novo review by the district court is sought, together with a supporting memorandum,
within fourteen (14) days after being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review
by the district court and to appeal the district court’s order.
Dated this 31st day of January, 2018.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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