Carrion v. US Social Security Administration, Commissioner

Filing 18

///ORDER denying 11 Motion to Reverse Decision of Commissioner; granting 14 Motion to Affirm Decision of Commissioner. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Esmerelda Carrion
v.

Civil No. 13-cv-049-JL
Opinion No. 2014 DNH 174

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration
SUMMARY ORDER
Esmerelda Carrion has appealed the Social Security
Administration’s denial of her applications for a period of
disability, disability insurance benefits, and Supplemental
Security Income, which claimed an onset date of February 2010.
An administrative law judge at the SSA (“ALJ”) ruled that,
despite Carrion’s severe impairments (including, inter alia,
post-traumatic stress disorder, borderline intellectual
functioning, personality disorder, a back condition, and
complications from a wrist injury), she retains the residual
functional capacity (“RFC”) to perform jobs that exist in
significant numbers in the national economy, and, as a result, is
not disabled.

See 20 C.F.R. §§ 404.1505(a), 416.905(a).

The Appeals Council later denied Carrion’s request for
review of the ALJ’s decision, see id. §§ 404.968(a), 416.1479, so
the ALJ’s decision became the SSA’s final decision on Carrion’s
application, see id. §§ 404.981, 416.1481.

She appealed the

decision to this court, which has jurisdiction under 42 U.S.C.
§ 405(g) (Social Security).
Carrion has filed a motion to reverse the decision.
L.R. 9.1(b)(1).

See

She argues that the ALJ erred by (1) finding

that she did not suffer from a listed impairment, specifically,
mental retardation, see 20 C.F.R. § 404, subp. P, app. 1, pt. A,
¶ 12.05, making an analysis of her RFC unnecessary, id.
§§ 404.1520(d), 416.920(d), (2) giving little weight to the
opinions of Carrion’s treating psychiatrist, and (3) finding that
Carrion’s allegations of disabling symptoms were not fully
credible.

The Commissioner of the SSA has cross-moved for an

order affirming the ALJ’s decision, see L.R. 9.1(d), arguing that
substantial evidence supports the ALJ’s findings.

For the

reasons explained below, this court rules that the challenged
findings were, in fact, supported by substantial evidence, and
therefore denies Carrion’s motion to reverse the ALJ’s decision
(and grants the Commissioner’s).
Mental retardation.

“For a claimant to show that his

impairment matches a listing, it must meet all of the specified
medical criteria.”

Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

The listing for “mental retardation” requires, in relevant part,
“[a] valid verbal, performance, or full scale IQ of 60 through
70.”

20 C.F.R. § 404, subp. P, app. 1, pt. A, ¶ 12.05(c).
2

In

finding that Carrion’s intellectual disability did not meet this
standard, the ALJ noted that “there is no evidence of a
qualifying IQ score in the record.”
Carrion argues that this finding was erroneous because, in
October 2011, she received an IQ score of 76--but on a test with
a standard error of measurement such that, according to the
psychologist who administered the test, Carrion’s IQ “scores
would likely fall between 70 and 82 95% of the time.”

Carrion

does not explain how this translates into what the listing
requires, i.e., “[a] valid verbal, performance, or full scale IQ
of 60 through 70.”

In any event, as the Commissioner points out,

a number of courts have rejected the notion that, in determining
whether a claimant’s IQ meets the mental retardation listing, an
ALJ must account for the margin of error in the IQ test results.
See, e.g., Burns v. Barnhart, 312 F.3d 113, 124-26 (3d Cir. 2002)
(citing additional cases and abrogating district court cases to
the contrary).

As the Third Circuit reasoned in Burns, requiring

the listing to be applied in this way “would essentially alter
the regulatory language to say ‘IQ of 60 through 75,’ rather than
IQ of 60 through 70.’”

Id. at 125.

In the absence of any contrary authority from either the
Court of Appeals for the First Circuit or this court--or any
developed argument by Carrion--this court finds the reasoning of

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Burns and like decisions persuasive.

The ALJ properly found that

Carrion did not meet the listing for mental retardation, which
requires an IQ of 70 or lower, based on a documented IQ score of
76--even if that score resulted from a test with a margin of
error which, if applied in her favor, produces an IQ within the
necessary range.
Treating physician’s opinion.

On November 9, 2011,

Carrion’s treating psychiatrist, Dr. Quentin Turnbull, M.D.,
completed a “mental impairment questionnaire” on a form provided
by Carrion’s attorney.

Turnbull’s responses, entered by circling

pre-printed responses on the questionnaire, indicated, in
relevant part, that Carrion suffered from:

marked limitations in

concentration, persistence or pace resulting in frequent failure
to complete tasks in a timely manner; twice-monthly episodes of
deterioration in work-like settings; and mild inability to
function independently outside of the home due to panic attacks.
The ALJ gave these opinions little weight, explaining that they
“are inconsistent with [Turnbull’s] own treatment notes, which
indicated that [Carrion’s] mood and thought process and
orientation were either unremarkable or within normal limits just
prior to [Turnbull’s] issuing this opinion.”

The ALJ further

observed that Carrion’s “activities of daily living [were] also
highly inconsistent with Dr. Turnbull’s opinion.”
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Instead, the ALJ gave “considerable weight” to the opinions
of Dr. Jessica Stera, a psychologist who evaluated Carrion on
referral from a social worker from the same office as Turnbull.
Stera found that Carrion had “some difficulty” or “some trouble”
in social functioning, understanding and remembering
instructions, sustaining attention, reacting to stress, and
adapting to work or work-like situations, but did not identify
episodes of decompensation or any other disabling limitations.
Based on Stera’s findings, the ALJ found that Carrion retained
the RFC for medium work, limited, in relevant part, to “simple,
routine, and repetitive tasks performed in a work environment
free of fast-paced production requirements,” “tasks involving
only simple work related decisions and simple workplace changes,”
outside of “an intense team environment” or “a retail or
fast-paced environment, or where she would deal with individuals
she did not see on a regular basis.”1
Carrion argues that “[a]lthough the ALJ gave reasons for
rejecting Dr. Turnbull’s opinion, he did not give reasons in
accordance with the proper standard.”

The “proper standard,” as

Carrion acknowledges, requires an ALJ to give controlling weight

1

Carrion does not question that Stera’s opinions, if
properly credited, fully support the ALJ’s RFC finding. She
merely states--incorrectly--that the ALJ “never discussed
[Stera’s] diagnoses or the impact on [Carrion’s] functioning.”
The ALJ spent an entire paragraph summarizing Stera’s opinions.
5

to the opinions of a treating physician only “[i]f [the ALJ]
find[s] that a treating source’s opinion on the issue(s) of the
nature and the severity of [the claimant’s] impairment(s) is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [her] case record.”

20 C.F.R.

§§ 404.1527(d)(2), 416.927(d)(2).2
The ALJ’s ruling that Turnbull’s opinion was entitled to
little weight because it was unsupported by both his own
treatment notes and the evidence of Carrion’s activities of daily
living comports with this standard.
2012 DNH 177, 4-6.

See, e.g., Chapin v. Astrue,

It also comports with the regulations that

require the ALJ to evaluate any medical opinion according to,
among other factors, the evidence that the source provides to
support the opinion and its consistency with the balance of the
record.

20 C.F.R. §§ 404.1527(c)(3)-(4), 416.927(c)(3)-(4).

Carrion does not point to anything in Turnbull’s treatment
notes that, even in her view, supports his opinions as to her

2

After referencing one of these regulations, Carrion states
that “[t]here was no discussion of these factors as applied to
Dr. Lieberman who had treated [her] for over a year.” This
statement is otherwise unexplained, and “Dr. Lieberman” is not
even mentioned in the balance of Carrion’s motion to reverse or
anywhere in the joint statement of material facts. The court has
therefore ignored this “argument.” See, e.g., Gaudette ex rel.
D.P. v. Colvin, 2014 DNH 022, 6 (citing United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990)).
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psychological limitations.3

Indeed, her sole criticism of the

ALJ’s conclusion that Turnbull’s opinion was inconsistent with
his treatment notes is that, in explaining that conclusion, the
ALJ referred to notes entered not by Turnbull--but by a social
worker, Pamela Hoskins, who is from the same office as Turnbull
and saw Carrion during the same period that he treated her.
But this minor error does little if anything to undermine
the ALJ’s conclusion that Turnbull’s treatment notes do not
support his opinions as to Carrion’s disabling limitations.
Again, Carrion has not identified any such support in Turnbull’s
notes.

The account of Carrion’s treatment with Turnbull set

forth in the parties’ joint statement of material facts--which,
by rule, must “describe all facts pertinent to the resolution of
the case,” L.R. 9.3(d)--says simply that he “monitored [her]
medication progress,” “recommended [she] undergo
neuropsychological cognitive testing,” “prescribed monthly
medical monitoring and individual therapy,” and that his

3

Carrion’s motion refers to a visit to Dr. Turnbull on
November 15, 2011 (i.e., after he completed the mental health
questionnaire), where, according to her motion, she reported “an
episode that [had] occurred 3 weeks earlier when she stated ‘Felt
like she had left herself.’” It is unclear how the information
Turnbull received as to this single episode could have supported
his opinions, expressed two days earlier, as to Carrion’s
psychological limitations, and Carrion does not try to explain.
Moreover, as noted infra, the joint statement of facts does not
include Turnbull’s observations from any of his notes, including
those of November 15, 2011.
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“assessment of [Carrion’s] overall condition was that she
remained the same, or had improved” (citations omitted).
This state of affairs provides a ready response to Carrion’s
complaint in her motion to reverse that the ALJ “does not once
quote from Dr. Turnbull’s own treatment notes”:
Carrion.

neither does

It stands to reason that those notes do not in fact

provide any support for Turnbull’s opinions but, regardless, the
court is disinclined to wade through medical records (rendered in
handwriting that--as Carrion acknowledges--is difficult if not
impossible to decipher) which Carrion herself has not seen fit to
meaningfully summarize in the joint statement of facts.4
Furthermore, Carrion does not claim that Hoskins’s notes (to
which the ALJ mistakenly referred as Turnbull’s) provide any
support for Turnbull’s opinions either.

As the ALJ found--and

the joint statement of facts expressly states--Hoskins’s progress

4

The joint statement of facts indicates that “[o]n April 25,
2010, [Carrion] was assigned a Global Assessment Functioning
score of 45,” which “indicates serious symptoms or any serious
impairment in social, occupational, or school functioning”
(parentheticals, capitalization, and quotation marks omitted).
While, in her motion to reverse, Carrion states that this score
(which, without referring to the record, she attributes to an
assessment by Turnbull and Hoskins) “would indicate that she has
serious limitations in the ability to function,” she does not
further specify, whether by contrasting the test results with the
ALJ’s RFC determination or otherwise. In any event, as this
court has noted, “there is no ‘statutory, regulatory, or other
authority requiring the ALJ to put stock in a GAF score in the
first place.’” Chapin, 2012 DNH 177, 14 (quoting Kornecky v.
Comm’r of SSA, 167 Fed. App’x 496, 511 (6th Cir. 2006)).
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notes do indeed “reveal that [Carrion’s] mood/affect, thought
process/orientation, and behavior/functioning were within normal
limits.”5

The ALJ supportably gave little weight to Turnbull’s

opinions that Carrion nevertheless faced marked limitations in
concentration, persistence or pace, as well as episodes of
deterioration and an inability to function outside of her home.
See, e.g., Comeau v. Colvin, 2013 DNH 145, 16, aff’d, No. 13-2542
(1st Cir. June 25, 2014); Chapin, 2012 DNH 177, 4-6 & n.2.
Credibility of alleged symptoms.

Finally, Carrion argues

that the ALJ failed to sufficiently explain his finding that,
while her medically determinable impairments could reasonably be
expected to cause her alleged symptoms, her statements as to the
intensity, persistence, and limited effects of those symptoms
were not fully credible.

The court disagrees.

According to the joint statement of facts, Carrion testified
that “she experienced depression and anxiety” and “had poor
concentration,” and “reported back problems” and “shoulder pain.”
The court assumes (since Carrion’s motion does not specify) that

5

This characterization from the joint statement of facts
refers to treatment notes of sessions between April and July
2010. So there is no merit to Carrion’s suggestion that the ALJ
improperly restricted his inquiry in finding that treatment notes
from “just prior to” when Turnbull completed his evaluation in
October 2011 were inconsistent with it--the earlier treatment
notes, from the spring and summer of 2010, are likewise
inconsistent with it, and Carrion does not argue to the contrary.
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these are the allegations she believes the ALJ should have found
fully credible.
In explaining why he did not, however, the ALJ noted that
Carrion “was consistently described as exhibiting normal speech,
thought process, motor sensorium and behavior” as well as “normal
insight and judgment on many occasions.”

Carrion faults this

finding because, as the record support for it, the ALJ referred
to one page of an assessment form completed when Carrion began
treating with Turnbull and Hoskins, in April 2010.

But--as

already discussed at length--the treatment notes that followed
the initial assessment indeed show, as Carrion has stipulated,
“that [her] mood/affect, thought process/orientation, and
behavior/functioning were within normal limits.”

And the ALJ

specifically referred to some of these treatment notes in
explaining why he did not fully credit Carrion’s “alleged
disabling mental health symptoms.”

It is unclear what else

Carrion believes was required, by way of explanation, but, in the
court’s view, the ALJ’s explanation was more than adequate.

See,

e.g., Scanlon v. Astrue, 2013 DNH 088, 14-15.
The same is true of the ALJ’s treatment of Carrion’s claimed
physicial limitations, as to which the ALJ found “the objective
evidence is completely lacking.”

While Carrion’s motion to

reverse refers to her treatment for “pain throughout her body and

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in particular her lower extremities, including bilateral knee
pain and groin pain” by a Dr. Geoffrey Lund, she does not explain
how that supports her testimony as to “back problems” and
“shoulder pain,” nor does she point to anything else in the
record that does.6
in her legs.

Nor, conversely, did Carrion testify to pain

In addition, Carrion’s counsel conceded at the

hearing that, in Carrion’s back, she “has pain, but I don’t think
there’s supportive evidence in the file . . . that it would
prevent her from working . . . .

[I]t’s minimal, if at all.”

The ALJ also found that Carrion’s “activities of daily
living support the mental and physical ability to perform at
least simple medium exertion work.”
if not inevitable.

This finding is supportable

As the joint statement of facts indicates,

Carrion testified that “she was currently working 25 hours per
week at a hotel . . . five days a week, five hours per day.”7

6

Carrion’s motion to reverse states that she “suffers from
headaches and was seen . . . on April 7, 2010 after complaining
of intense pain in her head for over 2 days,” asserting that the
ALJ “never mentioned [her] headaches.” But Carrion herself
likewise “never mentioned her headaches” in her testimony before
the ALJ, and the only reference to this symptom in the joint
statement of facts indicates that, while Carrion sought medical
care for headaches on April 5, 2010, a CT scan and physical
examination produced normal results. Because this evidence so
obviously provides no support for Carrion’s disability claim, the
ALJ cannot be faulted for failing to mention it in his decision.
See Gaudette, 2014 DNH 022, 12-13.
7

In fact, Carrion testified that she no longer worked at the
hotel, where she was a maid and a server in the dining room,
11

She also testified (again, per the joint statement) that “she
made lunch and dinner, sometimes helped her children with
homework, performed household chores, and watched television.”
Carrion also, as the ALJ noted, “attend[ed] classes regularly
while also working and raising her [two] children” during the
time she claimed to be disabled.
While Carrion points out, correctly, that a claimant’s
ability to work part-time cannot itself support a ruling that she
is not disabled (which requires the ability to work 40 hours a
week or the equivalent), see, e.g., Huse v. Colvin, No. 13-117,
2014 WL 1125361, at *2 (D.N.H. Mar. 20, 2014), the ALJ did not
rely solely on the fact that Carrion was working part-time (or,
for that matter, that she was also caring for her children,
maintaining her home, and attending classes) in finding that she
was capable of medium work with certain limitations.

Instead, he

relied on her part-time work, and her other activities, to find
that her allegations of disabling symptoms were less than fully
credible, which is entirely proper.
145, 23-24.

See, e.g., Comeau, 2013 DNH

And the ALJ’s ultimate determination of Carrion’s

because “that would hurt my back and my neck and I was not
feeling well.” So--as should be clear by now--insufficient care
was put into preparing the joint statement of facts. Regardless,
as the ALJ noted, Carrion also testified that, at the time of the
hearing, she was working 25 hours a week at a different job,
monitoring children on a school bus.
12

RFC was, again, based on the opinions of a psychologist who had
examined her.

See note 1 and accompanying text, supra.

The ALJ

adequately and defensibly explained his reasons for not fully
crediting Carrion’s complaints of disabling symptoms.
Based on the foregoing, Carrion’s motion to reverse the
ALJ’s decision (document no. 11) is DENIED, and the
Commissioner’s motion to affirm that decision (document no. 14)
is GRANTED.

See 42 U.S.C. § 405(g).

The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

August 20, 2014

Judith E. Gola, Esq.
Robert J. Rabuck, AUSA

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