Robar v. US Social Security Administration, Commissioner

Filing 11

///ORDER denying 8 Motion to Reverse Decision of Commissioner; granting 9 Motion to Affirm Decision of Commissioner. So Ordered by Judge Paul J. Barbadoro. (jna)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Susan Robar
v.

Civil No. 10-cv-288-PB
Opinion No. 2011 DNH 110

Michael Astrue, Commissioner,
Social Security Administration
MEMORANDUM AND ORDER

Susan Robar filed a complaint seeking review, pursuant to 28
U.S.C. ' 405(g), of the Commissioner=s decision denying her
application for disability insurance benefits.

Robar moves to

reverse the Commissioner=s decision on the grounds that the residual
functional capacity assessment by the Administrative Law Judge
(AALJ@) is not supported by substantial evidence and that the ALJ
erred in not giving Robar=s treating source opinions appropriate
weight.

The Commissioner moves to affirm the decision.

For the

reasons provided below, I affirm the Commissioner=s decision.

I.

BACKGROUND1

Susan Robar was born in 1967 and was forty years old when she
applied for disability insurance benefits.

She is a high school

The background information is taken from the parties’ Joint
Statement of Material Facts. See L.R. 9.1(b). Citations to the
Administrative Transcript are indicated by “Tr.”
1

graduate, and she also earned an Associate=s Degree in college.
Before she stopped working in March 2007, she was an adolescent
counselor/caseworker, working at night in a residential facility,
the Dover Children=s Home.

Prior to that, Robar had worked as a police

and fire dispatcher, a salesperson, a sandwich maker, and a security
officer.
A.

Medical and Psychological Treatment Records
Robar was first diagnosed with Crohn=s disease in 1988.

By 1996,

medical records indicate that she was asymptomatic and not taking
medication for Crohn=s disease.
In November of 2003, Robar=s medical records at Womankind
Counseling Center note that she had been on medication to treat
depression for two and a half years.

At that time, her depression

was Ahealing,@ and she was feeling good more consistently.

In the

spring of 2004, Robar lost her job as a dispatcher, experienced some
depression, recovered, and started working at Dover Children=s Home
as an adolescent counselor and caseworker.

She again had an episode

of feeling tearful, anxious, and irritable, but a month later she
felt better.

That fall, she again experienced depression but felt

better by December.

During 2005, Robar took medication for

depression and her depression, grief, anxiety, and stress improved,

2

causing her GAF score to be assessed at 55.2
While playing hockey in January of 2006, Robar noticed that
she was having shortness of breath, but subsequent pulmonary testing
showed normal lung function.

She was examined by a chiropractor

in February 2006 because of stiffness in her back and neck after
an automobile accident.

The chiropractor found a reduced range of

motion in her cervical spine and diagnosed cervical strain or sprain.
By June 2006, Robar no longer was having spasms in her back or neck.
Also in January 2006, Robar was evaluated by her
gastroenterologist, Dr. Alain Ades, for her Crohn=s disease.
reported increased diarrhea with some bleeding.

Robar

Dr. Ades thought

that Robar was having a mild recurrence of Crohn=s disease.

He

recommended Remicaid infusions to treat that condition and Aher
Althialgias, which are severe.@3

On May 18, 2006, a physician=s

assistant who completed a AChild-Care Person Health Care Form,@ wrote
that Robar=s physical and mental health issues were well controlled
by her medications.
2

AGAF@ stands for the Global Assessment Functioning scale.
See American Psychiatric Association, Diagnostic & Statistical
Manual of Mental Disorders 30 (4th ed. 1994).
3

The parties= Joint Statement of Material Facts does not explain
ARemicaid infusions,@ or AAlthialgias.@ Remicaid is also spelled
ARemicade@ in the Statement and the administrative record. Based
on Dr. Ades note in the Administrative Record, AAlthialgias@ should
have been Aarthralgias,@ which generally means joint pain.
3

Robar met about once a month beginning in 2006 with Jeanne Allen,
a licensed social worker.

In June of 2006, Allen referred Robar

to Dr. Amy Feitelson, a staff psychiatrist at Seacoast Mental Health
Center.

Dr. Feitelson noted that Robar said she had been in

intermittent treatment for depression since college and that her
mood fluctuated depending on stress within her family.

Dr. Feitelson

reported that Robar was cooperative during the evaluation, that her
mood was anxious and depressed, and that her affect was constricted.
Dr. Feitelson diagnosed dysthemia and noted that bipolar type II,
attention deficit hyperactivity disorder, personality disorder, and
learning disabilities would need to be ruled out.

She rated Robar=s

GAF at 65.4
Also in June 2006, Robar had an appointment with Dr. Sonita
Estrada, who had been treating Robar for inflammatory arthritis
related to Crohn=s disease.

Dr. Estrada noted that Robar=s prior

treatment had either caused problems with her Crohn=s disease or had
not helped her arthritis.

Dr. Estrada decided to start a new

4

A>A GAF score of 65 . . . reflects Asome mild symptoms (e.g.
depressed mood or mild insomnia) OR some difficulty in social,
occupational, or school functioning . . . but generally functioning
pretty well, has some meaningful interpersonal relationships.@=@
Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (quoting Kohler
v. Astrue, 546 F.3d 260, 263 (2d Cir. 2008) quoting Am. Psychiatric
Ass=n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th
ed. 2000)); see also Barton v. Astrue, No. 10-cv-151-PB, 2011 WL
2412955, at *1 n.3 (D.N.H. June 14, 2011).
4

medication.

By August 2006, Robar also had changed her medication

for depression to Wellbutrin.
Robar had an appointment with Dr. Ades on August 10, 2006.
Dr. Ades thought that Robar was having a flare up of Crohn=s disease
and advised her to discontinue Wellbutrin.
and a short-term course of Prednisone.

Robar was taking Remicaid
In October of 2006, Robar

reported doing better and decreasing her Prednisone dose.

By

December 2006, Dr. Ades reported that Robar was better but still
had symptoms that he believed were due to stress.
In January 2007, Dr. Feitelson noted that Robar=s mood was fairly
stable although she had depression on some days.

Robar reported

that she was working and was able to play hockey, which she enjoyed.
Dr. Feitelson increased Robar=s medication in March 2007 because she
was having difficulty with attention, focus, and energy.
Robar also saw her primary care physician, Dr. Kathleen Kelley,
in March 2007.

Robar reported that she was having cognitive

difficulty, including lack of concentration, memory loss, possible
blackouts, and fatigue that was out of proportion to the amount of
sleep she was getting.

Dr. Kelley noted Robar=s various chronic

problems and that she was applying for medical leave from her work.
Dr. Kelley noted that Robar had chronic Crohn=s disease, fatigue,
malaise, and insomnia and referred her for neuropsychological testing

5

and an MRI.5
Also in March 2007, Robar told her social worker, Jeanne Allen,
that she felt out of control both physically and emotionally.
continued to meet with Allen for therapy through 2009.

Robar

During 2009,

Robar reported low energy, Astruggling to get through the day,@
attention problems, memory problems, and fatigue.
Beginning on March 29, 2007, Dr. Gina M. Divenuti, an
oncologist/hemotologist, treated Robar for anemia.

Dr. Divenuti

found that Robar was mildly anemic, which she thought was because
of the effects of Crohn=s disease.

On May 24, 2007, after Robar had

received several iron infusions, Dr. Divenuti found that Robar had
attained desirable blood levels.

Robar later returned to Dr.

Divenuti and continued to have iron infusions through 2009.
Craig Stenslie, Ph.D., did a psychological evaluation of Robar
on May 10, 2007.

Dr. Stenslie found that Robar had a mild cognitive

impairment in auditory attention and working memory, verbal learning
and word initiation and organization, psychomotor speed, and
cognitive flexibility.

He also found Asigns of dysthemic disorder,

generalized anxiety disorder that had potential under stress to

5

The Joint Statement of Material Facts does not indicate
whether that testing was done. In her motion, Robar states that
she was referred to Dr. Craig Stenslie who did the neuropsychological
testing.
6

become a mild dissociative disorder, and a mild to moderate
personality disorder with avoidant and mildly paranoid and/or
schizoid features.@

Joint Statement at 8 (Doc. No. 10).

Dr.

Stenslie concluded that Robar=s cognitive problems were related to
anxiety, depression, and fatigue.

He recommended that instead of

working at night, a more normal daytime schedule would have positive
effects.
Dr. Kelley referred Robar to Daniel Kunz, D.O., a
rheumatologist, who met with Robar on September 5, 2007.
complained of pain that had been worsening.
pain was related to Crohn=s disease.

Robar

Dr. Kunz thought Robar=s

He recommended retreatment with

Remicaid for her Crohn=s disease and also ordered x-rays of her
sacroiliac joints.

By December of 2007, Robar reported improvement

with Remicaid treatment and rest.
for remaining pain issues.

Dr. Kunz prescribed medication

On June 2, 2008, Robar was still having

hand, knee, and back pain, along with morning stiffness.

In January

2009, Dr. Kunz noted that Robar would be undergoing an MRI and would
have follow up with an orthopedic surgeon.
On November 10, 2008, Robar met with Dr. Karen Lauze, a
neurologist.6

Dr. Lauze noted that Robar=s seizures and migraine

6

Although the ALJ relied on Dr. Lauze=s notes in reaching his
decision, the parties did not include a summary of the notes in the
Joint Statement of Material Facts.
7

headaches were under control and cleared her to drive and to work.
Dr. Lauze wrote:

ANo contraindications to employment.@

(Tr. 847).

She indicated that Robar should have a follow up appointment in a
year.
Robar was evaluated by Dr. Roger B. Nowak, an orthopedic surgeon,
on February 20, 2009.

Robar explained that she had experienced left

shoulder pain while riding and trying to control her horse.

After

examination, Dr. Nowak recommended surgery on her left shoulder to
repair a rotator cuff injury and that surgery was performed on March
24, 2009.
Robar continued to have appointments with Dr. Ades.

In April

of 2009, Robar reported that she had no Crohn=s disease symptoms.
Dr. Ades decided that Robar could delay the next Remicaid treatment.
He recommended that she return in four months.
Robar consulted with Dr. Daniel A. Nadeau, an endocrinologist,
in May 2009.

She complained of a high pulse and blood pressure every

four to six weeks and dizziness when standing.

Dr. Nadeau noted

that Robar had chronic problems with hypothyroidism and depression,
which he thought were not well controlled, and a neoplasm adrenal
issue.

8

Robar saw another orthopedic surgeon, Dr. Mark Reeder, on
November 5, 2009, for chronic elbow pain.

Dr. Reeder noted that

Robar=s pain had become worse after she started coaching ice hockey.
Dr. Reeder recommended physical therapy.

At appointments over the

next several months, Dr. Reeder found that Robar=s symptoms were
improving.
B.

Evaluations Done for Purposes of Robar=s Benefits Application
Michael Schneider, Psy.D., a state agency consultant, reviewed

Robar=s medical and psychological treatment records in July 2007 and
completed a psychiatric review technique form and a mental functional
capacity assessment.

Based on his review, Dr. Schneider found that

Robar had depression, an anxiety disorder, and a personality disorder
that caused mild to moderate restrictions in Robar=s activities and
functioning.

He found no extended episodes of decompensation.

Dr.

Schneider concluded that although Robar had a severe psychological
impairment, she was able to understand, remember, and carry out simple
instructions and could maintain a normal work week.

He also

concluded that Robar could work with others in an environment that
did not require frequent interaction with the public or overly
critical supervision.
Dr. Hugh Fairley, also a state agency consultant, reviewed
Robar=s medical records and completed an assessment of her physical

9

residual functional capacity in July 2007.

He noted that Robar had

Crohn=s disease, anemia, arthritis, migraines, and asthma.

As a

result, he concluded that Robar was limited to lifting and carrying
up to twenty pounds occasionally and ten pounds frequently and that
she could sit, stand, or walk with normal breaks for up to six hours
in an eight-hour workday.

Dr. Fairley found no manipulative, visual,

or communicative limitations but found that Robar was limited to
doing some postural activities only occasionally.

He also found

some environment limitations.
Dr. Feitelson completed a mental impairment questionnaire for
Robar on February 4, 2010.

She diagnosed a single episode major

depressive disorder and a dysthemic disorder and assigned a GAF score
of 65.

Dr. Feitelson wrote that Robar could understand, remember,

and carry out simple instructions but not detailed instructions and
that she could not deal with the competitive requirements of
semi-skilled or skilled work.

Although she found some limitations

in goal setting, interacting with the public, appearance, and
traveling, Dr. Feitelson concluded Robar=s abilities were
satisfactory and that her mental condition caused only moderate
difficulty in activities of daily living and social functioning.
Dr. Feitelson, however, found that Robar had marked difficulty in
maintaining concentration, persistence, and pace and had experienced

10

one or two episodes of decompensation.
Robar=s social worker, Jeanne Allen, also completed a mental
impairment questionnaire for Robar on February 9, 2010.
assigned a GAF score of 50.7

Allen

Allen said that Robar had many

additional symptoms that Dr. Feitelson had not included in the
questionnaire and that Robar would be unable to meet competitive
standards for remembering work procedures; understanding,
remembering, and carrying out even very short and simple
instructions; maintaining attention; maintaining attendance and
punctuality, and performing at a consistent pace.

Despite her

limitations, Allen believed that Robar had satisfactory ability to
do certain activities such as sustain a routine, work in coordination
with others, accept instruction and respond appropriately to
criticism, and get along with co-workers.

Allen stated, however,

that Robar=s ability to deal with unskilled work was seriously limited
but not precluded.

Allen found that Robar=s mental condition caused

marked difficulty in activities of daily living, social functioning,
and maintaining concentration, persistence, and pace.
Dr. Kelly completed a physical residual functional capacity
questionnaire also in February 2010.
7

Dr. Kelly indicated on the

A GAF score between 45 and 50 Aindicat[es] serious symptoms
or serious impairment in functioning . . . .@ Campbell v. Astrue,
627 F.3d 299, 303 (7th Cir. 2010).
11

form that Robar could only stand or walk for less than two hours
and sit for about two hours in an eight-hour day and would need to
change between sitting and standing at will.

She also wrote that

Robar could lift ten pounds occasionally and twenty pounds rarely
and could use her hands, fingers, or arms for only twenty-five percent
of a workday.

Dr. Kelley also wrote that Robar would be likely to

miss more than four days of work per month.

II.

PROCEDURAL HISTORY

Robar applied for disability insurance benefits on May 2, 2007,
alleging disability beginning on March 8, 2007.

After her

application was denied at the initial level and on review, Robar
requested a hearing before an ALJ.
A.

Hearing
A hearing was held on February 11, 2010.

by counsel and testified at the hearing.

Robar was represented

She described her previous

work at the Dover Children=s home and explained that her Crohn=s
disease was active at the end of the time she worked there.

She

said that at the time of the hearing, her Crohn=s disease had been
fairly under control for a while and that she had been an assistant
hockey coach for a team of young girls since September 2009.

12

Robar testified that she could not work at a sedentary job
because of stiffness that caused back and neck pain and arthritis
in her hands and fingers.

She also said that she experienced fatigue

and drowsiness caused by some of her medications.

She said that

she had some depression about not being able to do her former work.
She also said that her epilepsy was under control with medication.
She was then living with her parents and her brother=s family and
was able to do some housework.
A vocational expert also testified at the hearing.

The

vocational expert explained the skill levels and exertional
requirements of Robar=s previous jobs.

In response to a hypothetical

question by the ALJ, the vocational expert testified that someone
with Robar=s age, education, and work experience, who was limited
to unskilled light work, able to stand or walk for six hours in an
eight-hour day, and had other postural and environmental limitations
could do Robar=s previous work as a sandwich maker but not any of
her other previous jobs.

The vocational expert testified that

Robar=s limitations would cause only minimal erosion of the light
work base so that there would be a significant number of light work
jobs available.

He further testified that a change to sedentary

jobs would preclude all of Robar=s past work but that unskilled
sedentary jobs existed that she could do.

13

B.

ALJ=s Decision
The ALJ issued a decision on February 26, 2010, denying Robar=s

application for disability insurance benefits.

In making the

decision, the ALJ found that Robar had severe impairments of Crohn=s
disease, seizure disorder, depression, anxiety, personality
disorder, status post rotator cuff repair, anemia, and asthma.
Despite her impairments, the ALJ concluded that Robar retained the
residual functional capacity to perform light work with limitations
to only occasionally climb ramps or stairs and never to climb ladders,
ropes, or scaffolds.

The ALJ also found that Robar could

occasionally balance, stoop, kneel, crouch, or crawl and that she
should avoid certain environmental conditions such as extreme
temperatures and air contaminants.

In addition, the ALJ found that

Robar was limited to work that involved remembering and carrying
out only simple instructions but that she could adapt to routine
workplace changes.
Based on Robar=s residual functional capacity and the testimony
of the vocational expert, the ALJ found that Robar was capable of
returning to her work as a sandwich maker, that the Medical-Vocational
Rules would support a finding that she was not disabled, and,
alternatively, that other jobs existed in significant numbers that
Robar could do.

The ALJ=s decision became the final decision of the

14

Commissioner when the Decision Review Board failed to complete its
review within the time allowed.

III.

STANDARD OF REVIEW

Under 42 U.S.C. ' 405(g), I am authorized to review the pleadings
submitted by the parties and the transcript of the administrative
record and enter a judgment affirming, modifying, or reversing the
Afinal decision@ of the Commissioner.

Review is limited to

determining whether the ALJ used the proper legal standards and found
facts based upon the proper quantum of evidence.

Ward v. Comm=r of

Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
The findings of fact made by the ALJ are accorded deference
as long as they are supported by substantial evidence.

Id.

Substantial evidence to support factual findings exists A>if a
reasonable mind, reviewing the evidence in the record as a whole,
could accept it as adequate to support his conclusion.=@

Irlanda

Ortiz v. Sec=y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.
1991) (per curiam) (quoting Rodriguez v. Sec=y of Health & Human
Servs., 647 F.2d 218, 222 (1st Cir. 1981)).

If the substantial

evidence standard is met, factual findings are conclusive even if
the record Aarguably could support a different conclusion.@
955 F.2d at 770.

15

Ortiz,

Findings are not conclusive, however, if they are derived by
Aignoring evidence, misapplying the law, or judging matters entrusted
to experts.@

Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).

The ALJ is responsible for determining issues of credibility and
for drawing inferences from evidence on the record.
at 769.

Ortiz, 955 F.2d

It is the role of the ALJ, not the court, to resolve conflicts

in the evidence.

Id.

IV.

ANALYSIS

Robar contends that the ALJ=s residual functional capacity
(“RFC”) assessment that she retained the ability to do work at the
light exertional level with certain other limitations was not
supported by substantial evidence.

She also contends that the ALJ

erred by not according controlling weight to Dr. Kelly=s opinions
and by giving little weight to the opinions of Dr. Feitelson and
Jeanne Allen.

The Commissioner moves to affirm the decision.

Because the weight given to the medical opinions could affect review
of the ALJ=s RFC assessment, I begin with that issue.
A.

Weight of Opinions
A treatment provider=s opinions will be given controlling weight

if the Atreating source=s opinion on the issue(s) of the nature and
severity of [the applicant=s] impairment(s) is well-supported by

16

medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the]
case record.@

20 C.F.R. ' 404.1527(d)(2).

When a treating source=s

opinion is not entitled to controlling weight, the ALJ determines
the amount of weight based on factors that include the nature and
extent of the source=s relationship with the applicant, whether the
source provided evidence in support of the opinion, whether the
opinion is consistent with the record as a whole, and whether the
source is a specialist in the field.

20 C.F.R. ' 404.1527(d)(1-6).

In addition, the ALJ must give reasons for the weight given to treating
source opinions.

Id.; see also Soto-Cedeno v. Astrue, 380 Fed. Appx.

1-2 (1st Cir. 2010).
1.

Dr. Kelly=s Opinions

Dr. Kelly indicated on the questionnaire that Robar was limited
to standing and walking for less than two hours, could sit for only
two hours in an eight-hour work day, had to be able to change positions
at will, and could lift ten pounds only occasionally and rarely lift
twenty pounds.

Dr. Kelly also stated that Robar could use her

fingers, hands, and arms only twenty-five percent of a work day and
that she would miss four days of work each month.

The ALJ concluded

that Dr. Kelly=s opinion was entitled to little weight Aas it is wholly
inconsistent with the evidence on record.@

17

(Tr. 15).

As examples,

the ALJ noted that Robar was able to Asuit up@ and skate with her
hockey team during practices and that she was able to use a treadmill
for ninety minutes at a time.
As Robar=s medical records and her testimony about her activities
demonstrate, Dr. Kelly=s opinions are not supported by the evidence.
Robar=s treatment for orthopedic issues do not indicate any need to
limit use of her hands, arms, and fingers in February of 2010.

In

fact, the treatment note by Dr. Reeder at Integrated Orthopaedics,
dated January 7, 2010, states:

AThe patient denies any neck pain,

numbness, tingling or weakness.

She states that her elbows are >much

better.=

She feels she is nearly done with physical therapy and is

overall much improved.@

(Tr. 1102).

The medical treatment records

show that Robar=s last visit to Dr. Kelly=s office, before February
2010, was in April 2009 for a rapid heartbeat, and the physician=s
assistant reported Ano apparent distress@ and Aextremities appear
normal.@

Therefore, the ALJ correctly decided not to give Dr. Kelly=s

opinions about the severity of Robar=s limitations controlling
weight.
2.

See 20 C.F.R. § 404.1527(d)(3)-(4).
Jeanne Allen=s Opinion and Dr. Feitelson=s Opinion

Jeanne Allen and Dr. Feitelson gave opinions about the limiting
effects of Robar=s mental condition, which included an inability to
meet competitive standards in a work environment and a likely absence

18

rate of four days each month.

The ALJ gave the opinions little weight

because they were contradicted by the medical evidence that Robar=s
depression and anxiety were well controlled by medication.

The ALJ

also noted that contrary to the opinions of Allen and Dr. Feitelson,
Robar was able to coach an ice hockey team Awhich necessarily required
maintaining attendance at practices, dealing with some stress, and
remembering procedures, rules, drills, and plays.@

(Tr. 15).

As a licensed social worker, Jeanne Allen is not an acceptable
medical source who can provide evidence to establish an applicant=s
impairment.

See 20 C.F.R. ' 404.1513(a); see also Bliss v. Comm=r

of Soc. Sec., 406 Fed. Appx. 541, 541-42 (2d Cir. 2011); McGee v.
Astrue, 368 Fed. Appx. 825, 828 (9th Cir. 2010).

Therefore, the

ALJ correctly discounted her opinion.
Although Robar cites to medical evidence that her depression
and anxiety were not under control during the entire period between
March 2007 and the hearing date, the record also includes substantial
evidence that Robar=s mental condition was controlled by medication,
particularly as time progressed.

Further, Dr. Feitelson=s more

negative opinions are contradicted to some extent by her own GAF
score assessment of 65.

The ALJ, not the court, is charged with

resolving conflicts in the evidence.

Ortiz, 955 F.2d at 769.

Because substantial evidence supports the ALJ=s basis for giving Dr.

19

Feitelson=s opinion little weight, that finding is entitled to
deference.
B.

Residual Functional Capacity
An individual=s RFC is ordinarily that individual’s “maximum

remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis,” and any RFC
assessment “must include a discussion of the individual=s abilities
on that basis.@

SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996);

see also 20 C.F.R. ' 404.1545.

In making that assessment, the ALJ

Awill consider all of [the applicant=s] medically determinable
impairments of which [the ALJ is] aware, including [the applicant=s]
medically determinable impairments that are not >severe= . . . .@
20 C.F.R. ' 404.1545(a)(2).
The ALJ found that Robar retained the ability to do less than
a full range of light work, with limitations for certain climbing
activities, environmental factors, and simple instructions.

The

ALJ reviewed the medical evidence that supported his finding and
noted Robar=s daily activities, which showed her ability to coach
hockey, work out at a gym, and assist with work around the house
and yard.

The evidence demonstrated, the ALJ found, that Robar had

more than enough energy to work full time.

Robar faults the ALJ=s

assessment of her residual functional capacity because he relied

20

on the opinions of the state agency consultants, because other
evidence suggests greater limitations caused by medications and her
mental and physical health, and because her daily activities were
not as robust as the ALJ suggested.
Robar argues that the ALJ erred in giving controlling weight
to the opinions of the state agency consultants, Dr. Schneider and
Dr. Fairley, over the opinions of Dr. Kelly, Dr. Feitelson, and Jeanne
Allen.

Relying on Social Security Ruling 96-6p, Robar contends that

state agency consultants= opinions are not entitled to controlling
weight because they were not based on the entire record.8
SSR 96-6p provides that state agency consultants= opinions
can be given weight only insofar as they are supported
by evidence in the case record, considering such factors
as the supportability of the opinion in the evidence
including any evidence received at the administrative law
judge and Appeals Council levels that was not before the
State agency, the consistency of the opinion with the
record as a whole, including other medical opinions, and
any explanation for the opinion provided by the . . .
consultant.
SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1986).

In addition,

consultants= opinion Amay be entitled to greater weight that the
opinions of treating or examining sources@ in some circumstances,

8

Dr. Schneider and Dr. Fairly reviewed the record and provided
their opinions in July 2007, several years before the hearing in
February 2010.
21

including but not limited to a situation when the opinion is based
on a review of a more complete case record than what was available
to the treating or examining source.

See id. at *3.

The ALJ gave the opinions of Dr. Schneider and Dr. Fairley Agreat
weight@ based a review of the entire record, which showed

that the

opinions were Aconsistent with the totality of the medical evidence
on record.@

(Tr. 15).

Although Robar disagrees with that

assessment, she has not shown what later medical evidence undermines
the opinions of Dr. Fairley and Dr. Schneider.

The ALJ also relied

on the opinion of Dr. Lauze in November 2008 when she opined in her
treatment notes that Robar was cleared to drive and work and that
she found no contraindications for Robar=s employment, which are
consistent with the consultants= opinions.
Finally, Robar contends that she was suffering from more fatigue
than the ALJ took into consideration and notes that some of her
medications could cause fatigue.
for anemia.

She also emphasizes her treatments

The ALJ cites evidence that shows Robar=s activities

and medical treatment notes do not support the level of impairment
Robar claims.

Although Robar points to evidence that suggests she

was more limited by her impairments than the ALJ ultimately found,
the record also includes substantial evidence to support the ALJ=s
RFC assessment.

22

V.

CONCLUSION

The ALJ=s decision is supported by substantial evidence in the
record.

Therefore, I lack the authority to overturn it.

Plaintiff=s

motion for an order reversing the Commissioner=s decision (Doc. No.
8) is denied.

The Commissioner=s motion for an order affirming the

decision (Doc. No. 9) is granted.
The clerk shall enter judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
July
cc:

13, 2011
D. Lance Tillinghast, Esq.
T. David Plourde, Esq.

23