Smallidge v. US Social Security Administration, Commissioner

Filing 13

///ORDER denying 8 Motion to Reverse Decision of Commissioner; and granting 11 Motion to Affirm Decision of Commissioner. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Debora A. Smallidge,
Claimant
v.

Case No. 13-cv–80-SM
Opinion No. 2014 DNH 043

Carolyn W. Colvin, Acting Commissioner,
Social Security Administration,
Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Debora Smallidge, moves to reverse or vacate the Commissioner’s
decision denying her applications for Social Security Disability
Insurance Benefits under Title II of the Social Security Act, 42
U.S.C. § 423, and Supplemental Security Income Benefits under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c
(collectively, the “Act”).

The Commissioner objects and moves

for an order affirming her decision.

For the reasons discussed below, claimant’s motion is
denied, and the Commissioner’s motion is granted.

Factual Background
I.

Procedural History.
In late 2009 and early 2010, claimant filed applications for

Disability Insurance Benefits and Supplemental Security Income,
alleging that she had been unable to work since November 14,
2008.

Those applications were denied and claimant requested a

hearing before an Administrative Law Judge (“ALJ”).

In July of 2011, claimant, her attorney, and a vocational
expert appeared before an ALJ, who considered claimant’s
applications de novo.

Three weeks later, the ALJ issued his

written decision, concluding that claimant was not disabled, as
that term is defined in the Act, at any time prior to the date of
his decision.

In January of 2013, the Appeals Council denied claimant’s
request for review, rendering the ALJ’s denial of claimant’s
applications for benefits the final decision of the Commissioner,
subject to judicial review.

Subsequently, claimant filed a

timely action in this court, asserting that the ALJ’s decision is
not supported by substantial evidence.

Claimant then filed a

“Motion for Order Reversing Decision of the Commissioner”
(document no. 8).

In response, the Commissioner filed a “Motion

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for an Order Affirming the Decision of the Commissioner”
(document no. 11).

II.

Those motions are pending.

Stipulated Facts.
Pursuant to this court’s Local Rule 9.1, the parties have

submitted a statement of stipulated facts which, because it is
part of the court’s record (document no. 12), need not be
recounted in this opinion.

Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review
I.

“Substantial Evidence” and Deferential Review.
Pursuant to 42 U.S.C. § 405(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”

Factual findings and credibility

determinations made by the Commissioner are conclusive if
supported by substantial evidence.
1383(c)(3).

See 42 U.S.C. §§ 405(g),

See also Irlanda Ortiz v. Secretary of Health &

Human Services, 955 F.2d 765, 769 (1st Cir. 1991).

Substantial

evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Co. v. NLRB, 305 U.S. 197, 229 (1938).

3

Consolidated Edison

It is something less than

a preponderance of the evidence, so the possibility of drawing
two inconsistent conclusions from the evidence does not prevent
an administrative agency’s finding from being supported by
substantial evidence.

Consolo v. Federal Maritime Comm’n., 383

U.S. 607, 620 (1966).

See also Richardson v. Perales, 402 U.S.

389, 401 (1971).

II.

The Parties’ Respective Burdens.
An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.”
§ 423(d)(1)(A).

See also 42 U.S.C. § 1382c(a)(3).

42 U.S.C.
The Act

places a heavy initial burden on the claimant to establish the
existence of a disabling impairment.

See Bowen v. Yuckert, 482

U.S. 137, 146-47 (1987); Santiago v. Secretary of Health & Human
Services, 944 F.2d 1, 5 (1st Cir. 1991).

To satisfy that burden,

the claimant must prove, by a preponderance of the evidence, that
her impairments prevent her from performing her former type of
work.

See Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985);

Paone v. Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982).
the claimant demonstrates an inability to perform her previous

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If

work, the burden shifts to the Commissioner to show that there
are other jobs in the national economy that she can perform, in
light of her age, education, and prior work experience.

See

Vazquez v. Secretary of Health & Human Services, 683 F.2d 1, 2
(1st Cir. 1982).

See also 20 C.F.R. §§ 404.1512(f) and

416.912(f).

In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective claims of pain and
disability, as supported by the testimony of the claimant or
other witnesses; and (3) the claimant’s educational background,
age, and work experience.

See, e.g., Avery v. Secretary of

Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote v. Secretary of Health & Human Services, 690 F.2d 5, 6
(1st Cir. 1982).

Ultimately, a claimant is disabled only if her:

physical or mental impairment or impairments are of
such severity that [she] is not only unable to do [her]
previous work but cannot, considering [her] age,
education, and work experience, engage in any other
kind of substantial gainful work which exists in the
national economy, regardless of whether such work
exists in the immediate area in which [she] lives, or
whether a specific job vacancy exists for [her], or
whether [she] would be hired if [she] applied for work.
42 U.S.C. § 423(d)(2)(A).

See also 42 U.S.C. § 1382c(a)(3)(B).

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With those principles in mind, the court reviews claimant’s
motion to reverse and the Commissioner’s motion to affirm her
decision.

Background - The ALJ’s Findings
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory fivestep sequential evaluation process described in 20 C.F.R.
§§ 404.1520 and 416.920.

Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment
since her alleged onset of disability: November 14, 2008.
Rec. at 21.

Admin.

Next, he concluded that claimant suffers from the

following severe impairments: “polyarthralgia, polycythemia,
chronic obstructive pulmonary disease, obesity, and major
depressive disorder.”

Id. at 21-22.

Nevertheless, the ALJ

determined that those impairments, regardless of whether they
were considered alone or in combination, did not meet or
medically equal one of the impairments listed in Part 404,
Subpart P, Appendix 1.

Id. at 22-23.

Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of

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light work.1

He noted, however, that claimant does have certain

limitations.
She should never climb ladders, ropes or scaffolds.
She can occasionally climb ramps and stairs, balance,
stoop, kneel, crouch and crawl. She should avoid
exposure to respiratory heights and moderate exposure
to respiratory irritants and concentrated exposure to
extreme temperatures, wetness and humidity. [Despite]
her mental health condition, she is capable of
understanding and remembering instructions and can
effectively perform routine tasks; she can maintain
normal concentration for two-hour periods within a
normal eight-hour workday; she retains adequate
capacity to sustain a normal workday and workweek; she
is capable of appropriate social interaction with the
public, supervisors and coworkers; and she is capable
of adapting to normal changes within a work
environment.
Admin. Rec. at 24.

Despite those restrictions, the ALJ concluded

that claimant was capable of returning to her prior job as a
cashier and, therefore, was not disabled.

1

Id. at 27-28.

“RFC is what an individual can still do despite his or her
functional limitations. RFC is an administrative assessment of
the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may
affect his or her capacity to do work-related physical and mental
activities. Ordinarily, RFC is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual’s
abilities on that basis.” Social Security Ruling (“SSR”), 96-8p,
Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, 1996 WL 374184 at
*2 (July 2, 1996) (citation omitted).
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In the alternative, the ALJ proceeded to step five of the
sequential analysis and considered whether there were any other
jobs in the national economy that claimant might perform.
Relying upon the testimony of a vocational expert, the ALJ
concluded that, notwithstanding claimant’s exertional and nonexertional limitations, she “is capable of making a successful
adjustment to other work that exists in significant numbers in
the national economy.”

Id. at 29.

Consequently, at both steps

four and five, the ALJ concluded that claimant was not
“disabled,” as that term is defined in the Act.

Discussion
Claimant challenges the ALJ’s decision on two grounds,
asserting that he erred: (1) by improperly determining her
residual functional capacity; and (2) by failing to give adequate
weight to the opinion of a psychological consultant who evaluated
her.

I.

Claimant’s Residual Functional Capacity.
Claimant challenges the ALJ’s determination that she was

capable of performing a range of light work, asserting that he
improperly assigned greater weight to the physical RFC assessment
of Dr. Fairley (a non-examining state agency physician) than to
the June 2011 Physical RFC Questionnaire completed by Mr. Cubeddu

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(a physician’s assistant who treated claimant since June of
2008).

The court disagrees.

In June of 2011, Mr. Cubeddu completed a Residual Functional
Capacity Questionnaire in which he opined that claimant had a
less than sedentary RFC.

Admin. Rec. at 444-48.

co-signed that questionnaire.

Id. at 448.

Dr. Brian Irwin

Claimant suggests

that the opinions in that questionnaire were entitled to
substantial deference (if not controlling weight) because they
represent the professional medical judgment of her treating
source, Dr. Irwin.

See generally 20 C.F.R. § 404.1527(c).

But,

as the Commissioner points out, it is difficult to view Dr. Irwin
as a “treating source” (at least as that phrase is used in the
regulations), since he only met with claimant on a single
occasion - June 10, 2008.

See generally 20 C.F.R. § 404.1502.

Although Mr. Cubeddu had a substantial treatment history with
claimant (they met on ten occasions between June of 2008 and June
of 2011), the record does not support the conclusion (or even the
inference) that Dr. Irwin shared Mr. Cubeddu’s level of
familiarity with claimant and her impairments.

Even if Dr. Irwin were properly viewed as claimant’s
“treating source,” his opinions about claimant’s level of
functioning in June of 2011 (as expressed in the RFC

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Questionnaire prepared by Mr. Cubeddu) were rendered three years
after he examined her.
value.2

Consequently, they have little persuasive

The ALJ did not err in treating the opinions contained

in that RFC Questionnaire as coming from something other than an
acceptable medical source.

Admin. Rec. at 27.

Alternatively, claimant asserts that even if Mr. Cubeddu’s
opinions were not entitled controlling weight, the ALJ should
have afforded them more weight than those of the state agency
physician.

But, the ALJ supportably explained why he chose to

discount Mr. Cubeddu’s opinions.
Although his opinions may be used as evidence to assess
the severity of the claimant’s impairments, and how
they affect her ability to work, [Mr. Cubeddu’s]
finding[s] are not supported by the evidentiary record
as a whole. Although his last encounter with the
claimant was in June 2011, he had not seen her in the
preceding fifteen months since March 2010, when she was
doing “worlds better.” Mr. Cubeddu’s findings are not
supported by treatment notes documenting objective
medical findings to substantiate such limitations.
Admin. Rec. at 27 (citations omitted).

Mr. Cubeddu’s treatment

notes from that office visit in March of 2010 reveal that

2

For example, when Dr. Irwin examined claimant in June of
2008, she did not report any symptoms of depression. Admin. Rec.
at 346. Yet, three years later, the Residual Functional Capacity
Questionnaire co-signed by Dr. Irwin endorses the view that
claimant’s depression and other psychological issues have
rendered her incapable of substantial gainful activity. Id. at
445.
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claimant did not report any physical symptoms, and state that she
“reports that she is feeling much better with the Pristiq, worlds
better actually.

She feels as though it is really helping.”

Admin. Rec. at 334.

Claimant explains that she failed to seek treatment with Mr.
Cubeddu for several months because of a lapse in insurance
coverage.

But, as the Commissioner notes, “the fact remains that

Mr. Cubeddu relied upon a disjointed, temporally remote body of
evidence to support his assessment of Plaintiff’s functional
capacity.”

Commissioner’s memorandum (document no. 11-1) at 6.

And, prior to each lengthy break in treatment, claimant reported
feeling significantly better.

Regardless of the status of

claimant’s insurance coverage, the ALJ was permitted to infer
that at least one reason she did not seek treatment during those
lengthy periods of time was because she was actually responding
well to her medications.

As the Court of Appeals for the Eight

Circuit has noted, “[i]f an impairment can be controlled by
treatment or medication, it cannot be considered disabling.”
Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993).

Cf. 20

C.F.R. §§ 404.1530(a) and 416.930(a) (providing that a claimant’s
failure to follow a prescribed treatment regimen is grounds for
denying an application for benefits).

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Finally, claimant asserts that, contrary to the ALJ’s
finding, Mr. Cubeddu’s opinions are supported by the opinions and
recommendations of claimant’s other treating sources.

For

example, she points to visits she made to Tonya Perrino (a
physician’s assistant) (Admin. Rec. at 214), Dr. Friedlander (an
oncologist/hematologist) (Admin. Rec. at 209-10), and Dr. DeLong
(a pulmonary specialist) (Admin. Rec. at 202-04).

But, none of

the treatment notes from any of those care providers supports Mr.
Cubeddu’s opinion that claimant is completely disabled from
performing any substantial gainful activity.

Rather, those

treatment notes seem focused primarily on claimant’s polycythemia
and hypoxemia, secondary to her cigarette smoking.3

Claimant also asserts that the ALJ should have placed less
weight on Dr. Fairley’s opinions because, when he prepared his
report, he did not have the benefit of Mr. Cubeddu’s June, 2011,
progress notes.

But, aside from an unsupported diagnosis of

3

For example, Dr. Friedlander specifically noted that
claimant’s lab results and hypoxemia were much improved with
claimant’s decreased smoking. Admin. Rec. at 209 (“I have
arranged for a repeat erythropoietin level and assume this will
be higher. Assuming that is the case, then there is no need for
further hematologic follow up, as correction of her hypoxemia and
decreasing cigarette smoking are the ways to control her plasma
volume and secondary polycythemia.”).
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fibromyalgia, those notes provide little, if any, new
information about claimant’s condition.4

Finally, the court notes that Dr. Fairley’s opinions are
well-supported by specific references to substantial evidence in
the record.

See Admin. Rec. at 410.

And, the ALJ supportably

explained his decision to afford greater weight to Dr. Fairley’s
opinions than those of Mr. Cubeddu.

See 20 C.F.R. §

404.1527(c)(3)-(4) (stating that the more weight will be afforded
to opinions that are supported by medical signs and laboratory
findings, as well as those opinions that are consistent with the
medical record as a whole).

See generally SSR 96-6p, 1996 WL

374180 at *2 (noting that “State agency medical and psychological
consultants are highly qualified physicians and psychologists who
are experts in the evaluation of the medical issues in disability
claims under the Act” and “[i]n appropriate circumstances,

4

Although Mr. Cubeddu diagnosed claimant with fibromyalgia,
he did not record any clinical findings to support that
diagnosis. See Admin. Rec. at 442. See generally Johnson v.
Astrue, 597 F.3d 409, 410 (1st Cir. 2009) (noting that while
laboratory results and musculoskeletal and neurological
examinations typically show no abnormalities for fibromyalgia
patients, the American College of Rheumatology “nonetheless has
established diagnostic criteria that include pain on both sides
of the body, both above and below the waist, and point tenderness
in at least 11 of 18 specified sites.”) (citations and internal
punctuation omitted). There is no record in Mr. Cubeddu’s
treatment notes that he subjected claimant to that test, or that
she reported tenderness in at least 11 of 18 specified sites.
Consequently, his diagnosis of fibromyalgia cannot be said to be
well supported by the medical record.
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opinions from State agency medical and psychological consultants
. . . may be entitled to greater weight than the opinions of
treating or examining sources.”).

II.

Claimant’s Mental Impairments.
Next, claimant challenges the ALJ’s decision to afford

greater weight to a Psychiatric Review Technique and the Mental
Residual Functional Capacity Assessment prepared by the state
agency psychological consultant, Helen Patterson, Ph.D. (Admin.
Rec. at 416-33), than the Mental Health Evaluation Report
prepared by psychological consultant Cheryl Bildner, Ph.D. (id.
at 411-15).

In her report, Dr. Bildner observed that claimant is
“predominantly able to independently complete [activities of
daily living].

She described that on certain days, she is unable

to complete certain tasks due to pain and fatigue, but tasks are
eventually completed.
cooks.
at 413.

She shops, maintains her home, hygiene and

She can drive but does not have a vehicle.”

Admin. Rec.

She also observed that, “Claimant is able to recall

basic information.

She can understand and remember locations and

work-like procedures.

She would have difficulty recalling more

complex, detailed or abstract instructions.”

Id. at 414.

Additionally, she opined that claimant “can make simple

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decisions.

She is able to interact appropriately with superiors

or co-workers.”

Id.

Nevertheless, Dr. Bildner concluded that,

“Claimant is unable to sustain concentration and complete tasks.
Motivation and perseverance are compromised” and claimant is
“unable to maintain a consistent schedule [and] she is unable to
effectively manage stresses common to a work environment.”

Id.

Claimant focuses on those latter conclusions and says the ALJ
inappropriately discounted them.

Dr. Patterson, on the other hand, opined that while claimant
does have some limitations, she is capable of engaging in
substantial gainful activity.
[Claimant] alleges multiple physical conditions
including fibromyalgia and fatigue with depression.
MER [medical evidence of record] shows multiple
problems associated with chronic nicotine dependence,
including mild COPD. Has been worked up extensively
and recently directly warned that if she does not stop
smoking, she has increased likelihood of shortened
life.
Close read[ing] of the record raise[s] questions
regarding alcohol abuse, despite claimant denying this
or minimizing.
MER further reveals multiple situational stressors,
including caring for an ill spouse, with both of them
unemployed. [Her activities of daily living are those]
of a homemaker.
No history of psychiatric treatment or any other form
of mental health care, [which] is a weighted factor.
PCP notes do show a few months’ period of focus re:

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depression, during time of MD focus on this claimant
stopped smoking.
CE [consultative examination] necessary. Presented as
somewhat vague informant. Raspy voice. Single
objective sign of depression per restricted affect. No
signs of thought disorder. Some “preoccupation” with
health issues. IQ estimated as average. Reduced
attention and motivation. Diagnosis of [major
depressive disorder], recurrent, moderate.
CE provider’s estimation of [claimant’s] limitations
seems extreme in the face of the record. Task
complexity is reduced to “simple,” [while] this
claimant routinely performs normal tasks. Appears the
provider does not understand programmatic definitions
of “simple” and “complex.”
Job reported to have ended due to variety of physical
ailments. Hasn’t been referred for psychiatric evaluation
or treatment, nor sought same.
Admin. Rec. at 428.

In light of the foregoing, Dr. Patterson

concluded that, “Overall, this claimant may have some reduction
in sustainability but overall is capable of work-like activity.”
Id.

Claimant takes issue with Dr. Patterson’s statement that she
has “no history of psychiatric treatment or any other form of
mental health care.”

And, she goes on to suggest that because

Dr. Patterson stated (allegedly erroneously) that claimant had
not “been referred for a psychiatric evaluation or treatment, nor
sought [the] same,” Admin. Rec. at 428, she “did not review the
records carefully.”

Claimant’s memorandum at 22.

But, as the

Commissioner points out, there is a difference between
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“referring” a patient for treatment by a medical or mental health
specialist, and “suggesting” the same.

Whenever Mr. Cubeddu

specifically “referred” claimant to a specialist, it appears she
followed up with a consultation.

As to mental health counseling,

however, Mr. Cubeddu simply suggested that she seek counseling or
therapy.

It was, therefore, reasonable for Dr. Patterson to

infer that, given the absence of evidence that claimant ever
sought mental health counseling or treatment (beyond the antidepression medications prescribed by Mr. Cubeddu), she never
received such a “referral” for a psychiatric evaluation or
treatment.5

In the final section of the functional capacity assessment
she completed, Dr. Patterson concluded that:
The preponderance of evidence indicates:
A.

The claimant is capable of understanding and
remembering instructions and can effectively
perform routine tasks.

B.

The claimant appears capable of maintaining
concentration for two hour periods within a normal
8-hour work day. Although she may experience some
interruption from symptoms of depression, she

5

Parenthetically, the court notes that no one disputes the
fact that claimant suffers from depression. In fact, the ALJ
concluded that her major depressive disorder is a severe
impairment. Admin. Rec. at 21. But, the record certainly
suggests that, when properly treated with medication, claimant’s
depression responded well and she felt “worlds better.” Id. at
334.
17

retains adequate capacity to sustain a normal
workday and workweek.
C.

The claimant is capable of appropriate social
interaction with the public, supervisors, and coworkers.

D.

The claimant appears capable of adapting to normal
changes within a work environment.

Admin. Rec. at 432.

While there is certainly evidence in the

record to the contrary, those conclusions are nonetheless
supported by substantial record evidence, as is the ALJ’s
decision to afford them great weight.

Conclusion
This court’s review of the ALJ’s decision is both limited
and deferential.

The court is not empowered to consider

claimant’s applications de novo, nor may it undertake an
independent assessment of whether she is (or is not) disabled
under the Act.

Rather, the court’s inquiry is “limited to

determining whether the ALJ deployed the proper legal standards
and found facts upon the proper quantum of evidence.”
Chater, 172 F.3d 31, 35 (1st Cir. 1999).

Nguyen v.

Provided the ALJ’s

findings are properly supported by substantial evidence, the
court must sustain those findings even when there may also be
substantial evidence supporting the contrary position.

Such is

the nature of judicial review of disability benefit
determinations.

See, e.g., Tsarelka v. Secretary of Health &
18

Human Services, 842 F.2d 529, 535 (1st Cir. 1988); Rodriguez v.
Secretary of Health & Human Services, 647 F.2d 218, 222 (1st Cir.
1981).

Consequently, while there is certainly substantial evidence
in the record demonstrating that claimant experiences significant
pain and muscle aches, has difficulty with fatigue, and suffers
from depression, the existence of such evidence is not sufficient
to undermine the ALJ’s decision that she is not “disabled” within
the meaning of the Act, which conclusion is also supported by
substantial evidence.

Having carefully reviewed the administrative record and the
arguments advanced by both the Commissioner and claimant, the
court concludes that there is substantial evidence in the record
to support the ALJ’s determination that claimant was not disabled
at any time between November 14, 2008, and July 28, 2011.

The

ALJ’s RFC determination, his decision to discount the opinions of
Mr. Cubeddu, and his decision to afford greater weight to the
opinions of Dr. Patterson than those of Dr. Bildner are wellreasoned and well-supported by substantial documentary evidence.

For the foregoing reasons, claimant’s motion to reverse the
decision of the Commissioner (document no. 8) is denied, and the

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Commissioner’s motion to affirm her decision (document no. 11) is
granted.

The Clerk of the Court shall enter judgment in

accordance with this order and close the case.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
February 28, 2014
cc:

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

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