Brown v. US Social Security Administration, Acting Commissioner

Filing 13

///ORDER/OPINION denying 8 Motion to Reverse Decision of Commissioner; granting 9 Motion to Affirm Decision of Commissioner. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(cmp)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
John Oliver Brown
v.

Civil No. 14-cv-256-JL
Opinion No. 2015 DNH 141

Carolyn W. Colvin, Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
John Oliver Brown appeals the Social Security
Administration’s (“SSA”) denial of his application for disability
insurance benefits.

An administrative law judge at the SSA

(“ALJ”) ruled that, despite Brown’s severe impairments
(osteoarthritis in his left knee, Hepatitis C, affective
disorder, and a history of substance abuse), he 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).

The Appeals

Council later denied Brown’s request for review of the ALJ’s
decision, see id. § 404.968(a), with the result that the ALJ’s
decision became the final decision on Brown’s application, see
id. § 404.981.

Brown then appealed the decision to this court,

which has jurisdiction under 42 U.S.C. § 405(g) (Social
Security).
Brown has filed a motion to reverse the decision.
9.1(b)(1).

See L.R.

He contends that the ALJ (1) lacked substantial

evidence to support his conclusion as to Brown’s RFC and (2)
erred in his assessment of Brown’s credibility.

The Acting

Commissioner of the SSA maintains that the ALJ committed no error
and has cross-moved for an order affirming the decision.
L.R. 9.1(d).

See

After careful consideration, the court agrees with

the Acting Commissioner that the ALJ committed no reversable
error and accordingly grants the Acting Commissioner’s motion to
affirm (and denies Brown’s motion to reverse) the ALJ’s decision.

I.

Applicable legal standard
The court limits its review of a final decision of the SSA

“to determining whether the ALJ used the proper legal standards
and found facts upon the proper quantum of evidence.”
Comm’r of Soc. Sec., 2 211 F.3d 652.

Ward v.

The court will uphold the

ALJ’s decision if it is supported by substantial evidence, which
is “such evidence as a reasonable mind might accept as adequate
to support a conclusion.”

Richardson v. Perales, 402 U.S. 389,

401 (1971) (quotations omitted).

Though the evidence may support

multiple conclusions, the court will still uphold the ALJ’s
findings “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 Heath & Human Servs., 955

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

2

II.

Background
In assessing Brown’s request for disability benefits, the

ALJ engaged in the requisite five-step process.
416.920.

See 20 C.F.R. §

He determined that Brown suffered from four severe

impairments: osteoarthritis of the left knee, Hepatitis C,
affective disorder, and a history of substance abuse.

After

finding that Brown’s impairments did not meet or “medically
equal” the severity of one of the impairments listed in the
Social Security Regulations, see 20 C.F.R. §§ 416.920(d),
416.925, and 416.926, the ALJ concluded that Brown retained the
RFC “to perform light work as defined in 20 C.F.R. 416.967(b)”
with the following limitations:
[H]e could sit up to 6 hours and stand/walk up to 2
hours in an 8-hour workday. He could occasionally
perform the postural activities . . . . He would be
limited to simple, repetitive tasks. He could maintain
concentration, persistence, and pace, for one hour at a
time before having a 2-3 minute break before continuing
on for another hour. The claimant could interact with
coworkers and supervisors on routine matters, but he
should avoid more than superficial interactions with
the public.
Admin. R. at 26.

The ALJ then determined that Brown was unable

to perform his past relevant work as an automobile mechanic
helper, automobile transmission mechanic, gas station attendant,
and service manager of an automobile specialist store.
C.F.R. § 404.1565.

See 20

At step five, where the SSA bears the burden

of showing that a claimant can perform other jobs that exist in
3

significant numbers in the economy, Freeman v. Barnhart, 274 F.3d
606, 608 (1st Cir. 2001), the ALJ concluded that Brown could
perform such jobs as inspection table worker, preparer (polishing
jewelry), and production sorter or bench work (sorting nuts and
bolts.

Therefore, the ALJ found, Brown was not disabled within

the meaning of the Social Security Act.

III. Analysis
Brown raises essentially four issues in this appeal, though
all are closely related.

First, Brown contends that the ALJ’s

assessment of Brown’s physical RFC is not supported by
substantial evidence in the record because the ALJ relied
primarily on the opinion of a non-examining expert who had not
reviewed the full record.

As a related matter, he also argues

that the ALJ incorrectly weighed the opinion evidence concerning
Brown’s physical limitations, giving more weight to the nonexamining expert’s opinion over that of Brown’s treating
physician.

Third, Brown challenges the ALJ’s assessment of the

credibility of Brown’s statements about the intensity and
limiting effect of the pain he felt in his left knee and his
fatigue.

Finally, Brown contends that substantial evidence does

not support the ALJ’s assessment of Brown’s mental RFC.

4

For the

reasons detailed below, the court finds that the ALJ did not err
in any of these assessments.

A.

Physical RFC determination

In evaluating Brown’s RFC as relating to his physical
disabilities, the ALJ had three medical opinions at his disposal:
that of Dr. Ricardo Gonzales, Brown’s treating physician; that of
Dr. Louis Rosenthall, a state agency medical consultant; and that
of Dr. William Windler, a consultative examiner.

The ALJ

patterned his RFC finding on the June 2, 2011, residual
functional capacity assessment of Dr. Rosenthall, the state
agency reviewer.

Dr. Rosenthall indicated that Brown could stand

or walk for 2 hours and sit for about 6 hours in an 8-hour
workday.

He further opined that Brown could occasionally lift or

carry 20 pounds, frequently lift or carry 10 pounds, occasionally
perform the various postural limitations, and that Brown’s
ability to push and pull was unlimited.

Dr. Rosenthall discussed

the medical support for these conclusions, noting that the record
reflected that Brown used a cane and complained of fatigue, but
that his “[g]ait and station were normal.”

Admin. R. at 359.

Brown maintains that the ALJ erred in relying on Dr.
Rosenthall’s opinion because Dr. Rosenthall did not examine Brown
and did not review the entire record.

5

Specifically, Dr.

Rosenthall -- whose opinion issued on June 2, 2011 -- did not
review Brown’s treatment record after that date or the opinion of
Dr. Gonzales, which was issued on October 4, 2012.

Thus, Brown

argues, the ALJ’s RFC determination is not based on substantial
evidence.

This argument is unavailing.

As a general matter, “an ALJ may place ‘[g]reater reliance’
on the assessment of a non-examining physician where the
physician ‘reviewed the reports of examining and treating doctors
... and supported [his] conclusions with reference to medical
findings.’”

Ferland v. Astrue, 2011 DNH 169, 10 (quoting

Quintana v. Comm'r of Social Security, 2004 WL 2260103, at *1
(1st Cir. 2004)).
requirement.

Dr. Rosenthall’s report meets this baseline

His report explains that he reviewed the records of

Brown’s treating providers that were available at the time he
made his report.

He also supported his conclusions with detailed

citations to that record.

See Moss v. Astrue, 2011 DNH 064, at

46 (“The ALJ's decision to adopt an assessment by a non-treating
physician is further supported if that assessment references
specific medical findings indicating that the claimant's file was
reviewed with care.” (citing Berrios Lopez v. Sec'y of Health &
Human Servs., 951 F.2d 427, 431 (1st Cir. 1991)).
The fact that Dr. Rosenthall did not review Brown’s later
treatment records or the opinion of Dr. Gonzales does not

6

necessarily preclude the ALJ from relying on his assessment.

It

is true that it “can indeed be reversible error for an
administrative law judge to rely on an RFC opinion of a
non-examining consultant when the consultant has not examined the
full medical record.”

Ferland, 2011 DNH 169 at 11 (quoting

Strout v. Astrue, Civil No. 08–181–B–W, 2009 WL 214576, at *8 (D.
Me. Jan. 28, 2009)).

However, “the fact that an opinion was

rendered without the benefit of the entire medical record does
not, in and of itself, preclude an ALJ from giving significant
weight to that opinion.”

Coppola v. Astrue, 2014 DNH 33, 23-24.

An ALJ can rely on such an opinion where “the medical evidence
postdating the reviewer's assessment does not establish any
greater limitations or where the medical reports of claimant's
treating providers are arguably consistent with, or at least not
‘clearly inconsistent’ with, the reviewer's assessment.”
2011 DNH 169 at 11 (internal citations omitted).

Ferland

That is the

case here.
Brown asserts that his medical records post-dating Dr.
Rosenthall’s report demonstrate that (1) Brown suffered from
fatigue as a result of his Hepatitis C, and (2) Brown suffered
from debilitating pain in his right knee from his osteoarthritis.
As support, Brown points to some nine pages of treatment notes
from October 2011 through August 2012 and the opinion of Dr.

7

Gonzales, none of which Dr. Rosenthall reviewed.

The ALJ

reviewed these records and concluded that Dr. Rosenthall’s
opinion “remains consistent with the record in its entirety.”
Admin. R. at 30.

The record supports this conclusion.

All but

one of these treatment notes document only Brown’s subjective
complaints of fatigue and pain.

As discussed infra, the ALJ

supportably concluded that those statements were not credible.
Accordingly, to the extent that Dr. Rosenthal’s assessment is
inconsistent with more recent medical records documenting Brown’s
complaints of pain and fatigue, that assessment is not undermined
and the ALJ did not err in relying on it.

This leaves only the

record of Brown’s visit to Dr. Gonzales on December 23, 2011, and
Dr. Gonzales’s subsequent opinion.

As the ALJ explained, Dr.

Gonzales’s treatment note does not include an observation of pain
or pain behaviors, only a tenderness to palpitation and Brown’s
subjective reports.

It does not document Brown’s fatigue.

As

for Dr. Gonzales’s opinion, the ALJ permissibly afforded “little
weight” to Dr. Gonzales’s opinions for the reasons discussed
below.

Accordingly, the ALJ did not err in concluding that the

medical records post-dating Dr. Rosenthall’s report were neither
inconsistent that report nor established greater limitations, and

8

thus did not err in relying on Dr. Rosenthall’s report in his RFC
analysis.1

B.

Weight of the physical limitation opinion evidence

Brown contends that the ALJ also erred by failing to give
controlling weight to the opinion of Dr. Gonzales, Brown’s
treating physician.

Dr. Gonzales opined that Brown could sit for

no more than three hours in an eight-hour workday and stand or
walk for only one hour each in the same time period, for a
combined total of no more than three hours; could never perform
any postural activities and must never be exposed to certain
environmental conditions; would be absent from work about three
times per month; required a cane to walk; and must elevate his
feet during the workday.

Dr. Gonzales concluded that Brown has

been subject to these limitations since 1986 and concluded that
Brown is “explicitly disabled.”

Admin. R. at 482, 534-37.

ALJ gave “little weight” to Dr. Gonzales’s opinion.

The

Because the

ALJ adequately explained his reasons for discounting Dr.

1

It is worth noting that the ALJ did not rely solely on the
report of Dr. Rosenthall. Along with the treatment notes of
record, the ALJ also considered a consultative examination
performed by Dr. Windler, who -- like Dr. Rosenthall -- concluded
that Brown could stand or walk for two hours and sit for six
hours in an eight-hour workday. Dr. Windler likewise
acknowledged that Brown’s knee was tender to palpitation and that
he used a crutch, but did not appear in pain or discomfort.
9

Gonzales’s opinion and those reasons are supported by substantial
evidence, the court finds no error.
The ALJ must weigh the medical opinions “based on the nature
of the medical source's relationship with the claimant, the
consistency of the opinion with the other record evidence, the
medical source's specialty, and other factors that may be brought
to the ALJ's attention.”

Grant v. Colvin, 2015 DNH 059, 6-7

(citing 20 C.F.R. § 416.927(c)).

The ALJ “may reject a treating

physician's opinion as controlling if it is inconsistent with
other substantial evidence in the record, even if that evidence
consists of reports from non-treating doctors.”

Swanburg v.

Astrue, 2012 DNH 71, 14 (internal quotations omitted); see 20
C.F.R. § 404.1527(d)(2).

When the ALJ does not give the treating

physician’s opinion controlling weight, he determines the amount
of weight due to that opinion by considering a number of factors
articulated in 20 C.F.R. § 404.1527(c), including the length,
nature, and extent of the treatment relationship, the frequency
of examination, and the consistency of that opinion with the
record as a whole.2

The ALJ must provide “good reasons” for the

2

The ALJ need not explicitly take account of all the factors
articulated in 20 C.F.R. § 404.1527(c) in determining what weight
to give a treating physician’s opinion, so long as the court is
able, as it is here, “to discern the rationale the ALJ used to
reach his determination and that determination is founded on
‘good reasons’ that are supported by substantial record
evidence.” Figueroa v. Astrue, 2012 DNH 101, 15.
10

weight given to a treating source’s opinion.

Id.; see Social

Security Ruling (“SSR”) 96–2p, Policy Interpretation Ruling
Titles II and XVI: Giving Controlling Weight to Treating Source
Medical Opinion, 1996 WL 374188, at *5 (S.S.A. 1996).
After properly following this process, the ALJ concluded
that Dr. Gonzales’s opinion was “not supported by or consistent
with treatment notes” and therefore afforded it “little weight.”
Admin. R. at 29.

As the ALJ observed, the record contains only

one treatment note from Dr. Gonzales, dated December 12, 2011, in
which he indicates that he had not treated Brown since March
2009.

This limits the amount of weight Dr. Gonzales’s opinion

may be afforded.

See 20 C.F.R. § 404.1527(c)(2)(i) (“Generally,

the longer a treating source has treated you and the more times
you have been seen by a treating source, the more weight we will
give to the source's medical opinion.”).

The ALJ further found

that Dr. Gonzales’s opinion was not consistent with that
treatment note.

Though Dr. Gonzales observed therein that he

“can see how this deformity [of Brown’s proximal tibia] would
cause severe pain,” Admin. R. at 378, as the ALJ pointed out, the
treatment notes do not indicate that Brown “presented in any pain
or with any pain behaviors,” Admin. R. at 28.

Nor does Dr.

Gonzales’s opinion reflect any support -- from the treatment note
or otherwise -- for the limitations that Brown could not lift and

11

carry more than ten pounds; engage in any postural activities; or
tolerate exposure to unprotected heights, moving mechanical
parts, humidity and wetness, irritants, extreme heat or cold, or
vibrations, or operate a motor vehicle.

A treating physician’s

opinion should be given deference only insofar as it is “wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [his] case record.”

20 C.F.R. §

404.1527(d)(2). The ALJ may discount an opinion that is not so
supported.

See, e.g., Carrion v. Colvin, 2014 DNH 174, 6-8

(upholding ALJ’s decision to reject treating physician’s opinions
as unsupported when claimant failed to point to any support in
physician’s notes or elsewhere).
Nor did the ALJ err in discounting Dr. Gonzales’s conclusion
that Brown “is significantly disabled as a result of [his] injury
and the subsequent arthritis.”

Admin. R. at 482.

As Brown

acknowledges, a determination of disability is one reserved to
the ALJ.

20 C.F.R. § 404.1527(d)(2)(I); see also SSR 96–5p,

Titles II and XVI: Medical Source Opinions on Issues Reserved to
the Commissioner, 1996 WL 374183, at *2 (S.S.A. 1996)
(“[T]reating source opinions on issues that are reserved to the
Commissioner are never entitled to controlling weight or special
significance.”).

The ALJ need not, as Brown suggests, defer to

12

such an opinion; he need only “consider [that] opinion and, if he
rejects it, explain his reasons for doing so.”
33, 16.

Coppola, 2014 DNH

C.

And he did so here.

Credibility Determination

Brown’s third contention with the ALJ’s decision concerns
the ALJ’s assessment that Brown’s statements about the intensity,
persistence, and limiting effects of the knee pain resulting from
his osteoarthritis and fatigue from his Hepatitis C were not
credible.

The law “requires the ALJ to evaluate the credibility

of a claimant’s testimony about [his] symptoms and their limiting
effect in light of all the other evidence of record, rather than
to simply accept the testimony as true.”
DNH 088, 15 n.4.

Scanlon v. Astrue, 2013

And that determination is entitled to

deference, especially when supported by specific evidence in the
case record.

Simmons v. Astrue, 736 F. Supp. 2d 391, 401 (D.N.H.

2010) (citing Frustaglia v. Sec'y of Health and Human Servs., 829
F.2d 192, 195 (1st Cir. 1987).

Even though more than one

conclusion could be drawn from the evidence in the record, the
ALJ’s credibility determination will be upheld so long as “a
reasonable mind, reviewing the evidence in the record as a whole,
could accept it as adequate to support [the ALJ’s] conclusion.”
Irlanda Ortiz, 955 F.2d at 769 (quotation marks omitted).

13

1.

Knee Pain

Though acknowledging Brown’s history of osteoarthritis in
his left knee, the ALJ found that the treatment notes concerning
that ailment did not support Brown’s allegations of pain or the
extent of his claimed functional limitations.

As Brown observes,

the ALJ must evaluate such statements according to SSR 96-7p,
Titles II and XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements, 1996 WL
374186 (S.S.A. 1996), which “outlines a specific staged inquiry
that consists of the following questions, in the following order:
(1) does the claimant have an underlying impairment that could
produce the symptoms he or she claims?; (2) if so, are the
claimant’s statements about his or her symptoms substantiated by
objective medical evidence?; and (3) if not, are the claimant’s
statements about those symptoms credible?”

Comeau v. Colvin,

2013 DNH 145, 21 (internal quotations omitted); see 20 C.F.R. §
404.1529.
At the first step, the ALJ found that Brown had an
impairment -- osteoarthritis -- that could produce his claimed
symptoms.

Brown contends that the ALJ erred at the second step:

because the objective medical evidence substantiates Brown’s
statements about his symptoms, he argues the ALJ should not have
proceeded to a credibility analysis at all.

14

Caille v. Comm'r of

Soc. Sec., Civ. No. 09–1305, 2010 WL 1424725, at *3 (D.P.R. Apr.
6, 2010) (explaining that “before weigh[ing] the credibility of a
claimant's statements about pain . . . [the] ALJ must first find
a lack of support in the objective medical evidence for the
allegations of pain”).

The court disagrees.

Evidence in the

record supports the ALJ’s conclusion that Brown’s statements
about his symptoms were not substantiated by objective medical
evidence.

Specifically, as the ALJ noted, none of the examining

sources observed that Brown presented with any pain behaviors or
appeared in any distress outside of some tenderness to
palpitation.

Dr. Gonzales explained only that he “can see how

[Brown’s impairment] would cause severe pain,” Admin. R. at 378,
which is consistent with the ALJ’s conclusion at the first step
of the inquiry that Brown’s osteoarthritis could cause pain,

but

Dr. Gonzales did not note that he observed any pain or that
Brown’s condition did cause pain.

Similarly, while Dr. Read and

Dr. Windler observed that Brown walked with a cane and crutch,
respectively, other treatment notes document that providers
observed Brown having a normal gait and station on at least three
occasions.

Having afforded this evidence due consideration, the

ALJ did not err by moving on to a credibility determination.
Brown then faults that determination for relying too heavily
on his daily activities.

Brown argues, in essence, that his

15

ability to sit to watch television does not translate to an
ability to sit at a workstation and perform a job.

But the ALJ

did not limit his consideration to this single activity.

He

considered a broad range of Brown’s activities, including his
reported ability to attend to his personal hygiene, drive a car
(including operating the pedals), shop for groceries, attend
appointments, visit with friends and family, do basic household
chores such as laundry, sweeping, and picking up his belongings,
and prepare meals for up to an hour a day.

And he concluded that

these reported activities were inconsistent with Brown’s
subjective complaints.

It is the ALJ’s prerogative to weigh this

evidence and draw conclusions from it,
276 F.3d 1, 10 (1st Cir. 2001).

see Seavey v. Barnhart,

Such conclusions permissibly

include negative conclusions about the claimant’s credibility.
Mason v. Astrue, 2013 DNH 013, 14; see also St. Pierre v.
Shalala, No. 94-232, 1995 WL 515515, at *3 (D.N.H. May 25, 1995)
(“When evaluating the subjective claims of pain it is proper and,
indeed, required that the ALJ consider daily activities such as
driving, walking and household chores.

This allows the Secretary

to juxtapose the claimant’s subjective allegations of pain with
the relative intensity of his daily regimen.”) (internal
citations omitted).

Because the ALJ’s decision “contains

specific, clear reasons for [his] credibility determination that

16

are supported by record evidence,” Perry v. Colvin, 2014 DNH 198,
7, the court finds no error.

2.

Fatigue

Brown also assigns error to the ALJ’s failure to “address
Brown’s complaints of fatigue or his efforts to alleviate it
prior to his Hep C treatment.”
address those complaints.

Mot. at 17.

But the ALJ did

After a thorough review of Brown’s

medical record in connection with his Hepatitis C, the ALJ
observed that the evidence on record, including treatment notes
and consultative examinations, lends itself to the interpretation
that Brown complained of fatigue as a side-effect of Hepatitis C
treatment, not as stemming from the disease itself.
had since ceased that treatment.

And Brown

Because the ALJ’s explanation

for his conclusions as to the credibility of Brown’s subjective
complaints of fatigue finds support in the record, the ALJ did
not err.

D.

Non-Exertional RFC

In addition to Brown’s physical limitations, the ALJ found
that Brown suffered from affective disorder and a history of
substance abuse.

Despite these severe impairments, the ALJ

concluded that Brown had the non-exertional RFC to “maintain

17

concentration, persistence, and pace, for one hour at a time
before having a 2-3 minute break before continuing on for another
hour,” and that he could “interact with coworkers and supervisors
on routine matters, but he should avoid more than superficial
interactions with the public.”

Admin. R. at 26.

In evaluating

Brown’s RFC as relating to his mental impairments, the ALJ
reviewed four medical opinions: that of Dr. Juliana Read, a
licensed psychologist and consultative examiner; that of Dr.
Janet Levenson, a second consultative examiner; that of Andrew
Connery, a licensed psychologist who evaluated Brown; and Dr.
Patricia Salt, a state agency consultant.

Brown argues that the

ALJ’s non-exertional RFC determination was not supported by
substantial evidence in light of his primary reliance on Dr.
Read’s opinion, to which the ALJ gave “great weight,” over Dr.
Connery’s opinion, which received only “little weight.”
Both Dr. Read and Dr. Connery evaluated Brown; neither is a
treating source.

Under such circumstances, it is for the ALJ to

“decid[e] which medical opinion(s) to credit,” and he is
“afforded a substantial amount of discretion” so long as he
“discuss[es] at least some of his reasons for accepting one
source's opinion over another's.”
135, 13.

Dumensil v. Astrue, 2010 DNH

This allows the district court to “determine whether

that discretion was exercised reasonably.”

18

Id.

As Brown

acknowledges, the ALJ “gave his reasons for according Dr[.] Read
great weight . . . .”3

Motion at 8.

He explained that he relied

on Dr. Read’s opinion because it was “supported by and consistent
with the evidence of record,” including the opinion of Dr.
Levenson, who evaluated Brown before his alleged onset date, and
“consistent with [Brown] scoring 28/30 on the MMSE, his ability
to interact with others, and his wide range of daily activities,”
such as socializing with friends and family.

Admin R. at 31.

Brown seeks to discount Dr. Read’s report, arguing that it
is (1) internally inconsistent and (2) inconsistent with other
evidence in the record.

As to the first, Brown notes that Dr.

Read observed Brown’s disheveled appearance but opined that he
could attend to personal hygiene; observed that he arrived 10
minutes late but opined that he could keep a schedule; and
observed that he swore frequently and was told he had difficulty
getting along with others, but opined that he could interact with
them appropriately.

While it is true that the ALJ may discount a

medical provider’s opinion because of internal inconsistencies,

3

Brown goes on to argue that “a reason is more than a stated
basis for a decision; it requires making sense of things by
applying logic.” Webster disagrees. See Merriam-Webster’s
Collegiate Dictionary 1037 (11th ed. 2007) (defining “reason” as
“a statement offered in explanation or justification.”). In any
event, it is clear from the detailed nature of the ALJ’s decision
that he appropriately “appl[ied] logic” by balancing the record
evidence and resolving the apparent conflicts therein.
19

see Eley v. Colvin, 2015 DNH 85, 4, it is for the ALJ to resolve
such conflicts.

Irlanda Ortiz, 955 F.2d at 769.

And the ALJ’s

resolution of these particular conflicts is supported by Dr.
Read’s report and Brown’s functional activity report.
Brown’s contention that Dr. Read’s report is inconsistent
with other record evidence fares no better for similar reasons.
The ALJ observed that Dr. Read’s report was consistent with
Brown’s “scoring 28/30 on the MMSE, his ability to interact with
others, and his wide range of daily activities.”4
31.

Admin. R. at

He further found that it comported with the opinion of Dr.

Levenson, even though the latter opinion was “performed prior to
the alleged onset date and during a time of increased substance
abuse.”

Admin R. at 32.

The ALJ also considered Brown’s

communications with other examiners and medical providers, as
well as his reported engagement with family and friends,5 and

4

While Brown correctly points out that a high score on the
MMSE does not, without explanation, constitute substantial
evidence, see Morin v. Colvin, 2014 DNH 9, 15, here Dr. Read
explained that the two questions Brown missed concerned his
“attention/calculation and recall.” Admin. R. at 334. The ALJ
further took this into account, crafting an RFC that allowed for
Brown to be able to concentrate for only one hour at a time,
followed by a two to three minute break.
5

Though Brown argues that both Dr. Read and the ALJ gave too
much credence to Brown’s reported daily activities, Brown
supports that argument only with his attorney’s interpretations
of the same report. That is not a basis upon which the court can
conclude that the ALJ erred.
20

concluded that “he was able to interact appropriately” with them
as well.

Admin. R. at 31.

Though noting one occasion of

antisocial behavior on Brown’s part, the ALJ reconciled it
against other record evidence demonstrating Brown’s ability to
interact with others.
Nor did the ALJ here “ignore relevant portions of the record
that conflict with his determination.”
DNH 7, 21.

Shulkin v. Astrue, 2012

He considered Dr. Connery’s conflicting opinion and

explained the weight he assigned that report in some detail.

The

ALJ observed, for example, that Dr. Connory’s report did “not
include objective observations of [Brown], nor administration of
a mental status exam.”

Admin. R. at 32.

Dr. Connery’s

observations of Brown’s behavior and presentation at the
examination were limited to Brown’s tardiness (because he forgot
directions to the office), that Brown forgot his glasses, and
that Brown “presented as highly disorganized, having rapid
changes in mood.”

Admin. R. at 382.

Instead, Dr. Connery based

his diagnosis on the results of the Million Clinical Multiaxial
Inventory-III and the Achenbach Adult Self Report.

The ALJ also

found Dr. Connery’s diagnosis of schizophrenia to be inconsistent
with the opinions of the two other medical examiners on record
and Brown’s own denial of any such disorder.

Since it is the

province of the ALJ to weigh the evidence and there is

21

substantial support for the ALJ’s decision to rely more heavily
on Dr. Read’s opinion than Dr. Connery’s, see Tremblay v. Sec’y
of Health & Human Servs., 676 F.2d 11, 12 (1st Cir. 1982), the
court finds no error.6

IV.

Conclusion
Because the ALJ’s RFC assessments and his decision to find

Brown’s claimed symptoms less than fully credibly were supported
by substantial evidence, and because he adequately explained his
decision to weigh the medical opinion evidence as he did with
reasons supported by substantial evidence, Brown’s motion to
reverse the SSA’s decision7 is DENIED, and the Commissioner’s
motion to affirm it8 is GRANTED.

See 42 U.S.C. § 405(g).

The

clerk shall enter judgment accordingly and close the case.9

6

Brown also argues that the ALJ erred when he posed a
hypothetical question to the vocational expert that was based
upon the allegedly erroneous RFC. Having concluded that the
ALJ’s RFC determination was proper and supported by substantial
evidence in the record, the court finds no error.
7

Document no. 8.

8

Document no. 9.

9

Counsel for the Acting Commissioner is reminded that under
L.R. 7.1(a)(3), memoranda in support of a dispositive motion are
limited to 25 pages. At 26 pages, the Acting Commissioner’s
memorandum violates the rule. Counsel for the plaintiff is
likewise reminded that under L.R. 5.1(a), memoranda are to be
page-numbered and double-spaced. Plaintiff’s memorandum is
neither. Counsel for plaintiff is further advised to review L.R.
22

SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated: July 17, 2015
cc:

Elizabeth R. Jones, Esq.
T. David Plourde, Esq.

5.3 for guidance on citing unreported opinions in lieu of
employing an incomprehensible amalgam of citation styles. As
these violations are de minimis, the court will take no remedial
action, but counsel is advised that the court expects compliance
with all applicable rules of procedure in the future.
23