Childers v. US Social Security Administration, Commissioner

Filing 12

///ORDER/OPINION denying 8 Motion to Reverse Decision of Commissioner; granting 10 Motion to Affirm Decision of Commissioner. So Ordered by Chief Judge Joseph N. Laplante.(cmp)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Crystal Dora Childers
v.

Civil No. 14-cv-270-JL
Opinion No. 2015 DNH 142

Carolyn Colvin, Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
Crystal Dora Childers appeals the Social Security
Administration’s (“SSA”) denial of her application for disability
benefits.

An Administrative Law Judge (“ALJ”) found that

Childers suffered from several severe impairments.

The ALJ

nevertheless found that Childers was not disabled within the
meaning of the Social Security Act because she has sufficient
residual functional capacity (“RFC”) to work at jobs that exist
in significant numbers in the national economy.
423(d)(2)(A).

See 42 U.S.C. §

The SSA Appeals Council subsequently denied

Childers's request for review of the ALJ’s decision, rendering
the ALJ’s decision final.

Childers timely appealed to this

court, pursuant to 42 U.S.C. § 405(g).

In due course, Childers

moved to reverse the SSA’s decision and the SSA’s Acting
Commissioner moved to affirm the denial of benefits.
Childers asserts three arguments.

First, she claims that

the ALJ's RFC finding was flawed because the ALJ relied on his
own lay knowledge and because the ALJ did not explain his
reliance on a state agency medical consultant.

Second, Childers

argues that the ALJ did not give enough weight to evidence
provided by a treating medical source.

Finally, Childers argues

that the ALJ's negative assessment of her credibility did not
address all required factors.
After consideration of the parties’ arguments and the
administrative record, the court finds the record evidence
sufficient to support the ALJ's decision.

Therefore, Childers's

motion is denied and the Acting Commissioner’s motion is granted.
I.

Standard of Review
The court’s review of SSA’s final decision “is limited to

determining whether the ALJ used the proper legal standards and
found facts upon the proper quantum of evidence.”
of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).

Ward v. Comm’r
The ALJ’s

decision will be upheld if it supported by substantial evidence,
that 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).

This is less evidence

than a preponderance but “more than a mere scintilla.”

Id.;

Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).

The

possibility of drawing two inconsistent conclusions from the
evidence does not preclude a finding of substantial evidence.
Consolo, 383 U.S. at 620.

Accordingly, the ALJ’s resolution of

evidentiary conflicts must be upheld if supported by substantial
evidence, even if contrary results are supportable.

2

Rodriguez

Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 2 (1st Cir.
1987).
II.

The court next turns to the ALJ’s decision.

Background1
In analyzing Childers's benefit application, the ALJ

invoked the required five-step process.

See 20 C.F.R. § 416.920.

First, he concluded that Childers had not engaged in substantial
work activity after the alleged onset of her disability on July
12, 2011.

Next, the ALJ determined that Childers suffered from

several severe impairments: fibromyalgia, lumbosacral
spondylosis, facet arthropathy at L4-L5, migraine headaches,
asthma, allergic rhinitis, depression, anxiety and borderline
personality disorder.

See 20 C.F.R. § 416.1920(c).2

At the

third step, the ALJ concluded that Childers's impairments ––
either individually or collectively -- did not meet or "medically
equal" one of the listed impairments in the Social Security
regulations.

See 20 C.F.R. §§ 416.920(d), 416.925, & 416.926.

The ALJ next found that Childers had the RFC to perform:
light work as defined in 20 CFR 404.1567(b) except
standing and walking no more than four hours out of an
eight hour work day; no crawling or climbing of

1

The court recounts here only those facts relevant to the
instant appeal. The parties’ more complete recitation in their
Joint Statement of Material Facts is incorporated by reference.
See L.R. 9.1(d).
2

The ALJ also found that Childers also had a history of
ankle sprain, cervical cancer, hypertension and gastroesophageal
reflux disease, but that these impairments did not limit her
ability to work if treated properly.
3

ladders, ropes, and scaffolds; occasional kneeling,
stooping, balancing, crouching or climbing of ramps and
stairs; must avoid extreme cold, extreme heat, wetness
or humidity; must avoid excessive vibration, fumes,
odor, dust, gases, smoke, poorly ventilated areas; must
avoid concentrated exposure to concentrated chemicals;
cannot be in work environment where there are pets or
animals of any kind; cannot work in a kitchen setting;
further work is limited to simple, unskilled work; only
occasional interaction with the public and only
occasional interaction with co-workers.
Given that the ALJ found at step four that Childers could
not perform any past relevant work, the ALJ proceeded to step
five, at which the SSA bears the burden of showing that a
claimant can perform other work that exists in the national
economy.

Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).

Here, the ALJ, relying on Childers's testimony, medical records
and a vocational expert's testimony, concluded that Childers
could perform such jobs as bench assembler, production solderer
and sewing machine operator, all of which exist in the regional
and national economy.

Accordingly, the ALJ found Childers not

disabled within the meaning of the Social Security Act.
III.
A.

Analysis
RFC analysis

1. ALJ's use of lay knowledge
Childers first argues that the RFC is defective because the
ALJ added non-exertional limitations to the RFC – soybean oil
allergy and asthma – in the absence of supporting expert medical

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evidence.3

It is generally true that an ALJ is "not qualified to

interpret raw medical data in functional terms," Nguyen v.
Chater, 172 F.3d 31, 35 (1st Cir. 1999).

But even assuming the

ALJ committed such an error, it is harmless where, as here, "the
RFC finding is more favorable to a claimant that the medical
record supports."

Johnson v. Colvin, No. 1:13-00297, 2014 WL

4181606 *3 (D. Me. Aug. 21, 2014); see also

Bubar v. Astrue,

11-107-JL, 2011 WL 6937507, *6 (D.N.H. Dec. 5, 2011) rep. and
rec. adopted sub nom. Bubar v. U.S. Soc. Sec. Admin., 2011 WL
6937476 (D.N.H. Dec. 30, 2011) (“The court presumes that [the
claimant] does not object to the ALJ's determination that he had
less capacity for balancing, kneeling, and crawling than was
indicated by [the doctor’s] RFC Assessment”).
Against this backdrop, "the fact that the ALJ gave
[Childers] the benefit of the doubt in concluding that [her]
physical RFC was more limited than the physicians' RFC assessment
should not be used to discount the ALJ's determination."
Carstens v. Comm'r of Soc. Sec'y, No. 12–1335, 2013 WL 3245224,
*6 (D.P.R. June 26, 2013) (citing Dampeer v. Astrue, 826
F.Supp.2d 1073, 1085 (N.D. Ill. 2011)).

3

Accordingly, the court

Specifically, the ALJ observed that longitudinal treatment
for Childers's allergies and asthma appeared to be effective, a
conclusion based, in part, on normal spirometry readings.
"Nevertheless, as a precaution, the [ALJ] has determined nonexertional limitations reflective of an allergy to soybean oil
and the claimant's reported asthma."
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rejects this claim of error.
2.

Inadequate explanation of reliance on state agency opinion
Childers next takes aim at the following finding:
The undersigned has taken into consideration the
finding of non-disability made by the state agency
medical consultant pursuant to Social Security 96-9p.
This opinion is weighed as a statement from a
non-examining expert source. The undersigned has
determined slightly greater restrictions, commensurate
with hearing level evidence, but the opinion of the
medical consultant is otherwise reasonably supported
and not inconsistent with the other substantial
evidence. Accordingly, the undersigned gives this
opinion reasonable weight.

Citing this court's opinion in Fortin v. Astrue, Childers argues
that the ALJ committed legal error by failing to identify which
non-examining source he relied upon and by failing to explain
"reasonable weight."

10-CV-441-JL, 2011 WL 2295171 *11 (D.N.H.

May 18, 2011), report and recommendation adopted sub nom.

Fortin

v. U.S. Soc. Sec. Admin., Com'r, 10-CV-441-JL, 2011 WL 2224771
(D.N.H. June 7, 2011).

This argument is meritless.

In Fortin, the ALJ adopted an agency evaluation in one
sentence that was not part of an RFC determination.

The court

found legal error because the ALJ "did not mention [the opinion]
in his [RFC determination] and did not expressly evaluate [the
opinion]."

2011 WL 2295171 at *11.

Childers's reliance on Fortin is misplaced.

Here, unlike in

Fortin, the ALJ's RFC determination explicitly took "into
consideration the finding of non-disability made by the State

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agency medical consultant . . . ."

Moreover, the ALJ explained

the "extent of reasonable weight" when he considered it as a nonexamining expert source and then, as discussed above, added
additional physical limitations to the RFC. No more was
necessary. See SSR 96–6p, Titles II and XVI: Consideration of
Administrative Findings of Fact by State Agency Medical and
Psychological Consultants and Other Program Physicians, 1996 WL
374180, at *1 (S.S.A.1996) (The ALJ is not bound by the opinions
of state agency consultants, but must consider them and explain
the weight given to those opinions.).

Finally, as to the

identity of the expert, the parties' Joint Statement of Material
Facts refers to a physical RFC assessment done by Dr. Hugh
Fairley, a state consultant.

The fact that the ALJ did not refer

to Dr. Fairley by name is of no legal moment.

There is no other

state agency consultant performing such an assessment identified
in the record.

The court finds no error in the ALJ's reliance on

the state agency expert.
B.

Treating source opinion evidence
Childers claims the ALJ did not give sufficient weight to

the opinion of her primary care physician, Dr. Maria Rodriguez,
who assessed Childers to have significantly more limitations than
the ALJ ultimately found.

Because the ALJ adequately supported

his decision, the court rejects this argument.
An ALJ's adverse disability decision

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must contain specific reasons for the weight given to
the treating source's medical opinion, supported by the
evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source's
medical opinion and the reasons for the weight.
Perry v. Colvin, No. 14-390-SM, 2015 WL 3621415 *4 (D.N.H. June
9, 2015) (quoting SSR 96-2p, Titles II and XVI: Giving
Controlling Weight to Treating Source Medical Opinions, 1996 WL
374188 *5 (July 2, 1996)); see also, Proulx v. Astrue, 2012 DNH
180, 2012 WL 4829303 *5 (D.N.H. Oct. 11, 2012) (observing that an
ALJ may discount a treating source opinion if it conflicts with,
inter alia, other medical evidence and the claimant's activity
level.).
Here, the ALJ gave Dr. Rodriguez's opinion "little weight"
because, he noted, it conflicted with other reported "mild
physical examination findings".

The ALJ also observed that Dr.

Rodriguez's reported limitations on Childers's upper extremities
were contradicted by a medical record "devoid of significant
abnormal findings pertaining to upper extremity limitations."
to the latter finding – upper extremity limitations – Childers

As

offers no rebuttal other than to reiterate Dr. Rodriguez's
findings, the existence of which the ALJ acknowledged.

This is

plainly insufficient to carry her burden of showing that the
ALJ's reasoning on this point is unsupported by substantial
evidence.

See Tsarelka v. Sec'y of Health & Human Servs., 842

F.2d 529, 535 (1st Cir. 1988) ("[We] must uphold the
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[Commissioner's] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.").
The ALJ's earlier reference to "mild physical examination
findings found throughout the record and detailed in part above"
presents a slightly closer question, but one that the court
resolves in SSA's favor.

If the ALJ had stopped at "found

throughout the record," this matter would have been remanded
because "it is not the role of [the Commissioner] or the court to
fashion a rationale under which the ALJ could have sustainably
rejected [a treating source's] opinion."

Fortin, 2011 WL 2295171

at *8 (citing Dube v. Astrue, 781 F. Supp. 2d 27, 37 n.15 (D.N.H.
2011) (“[C]ounsel for the Commissioner ably posits numerous
reasons [l]ending support to the ALJ's disregard of [a treating
doctor's] limitational assessments. . . . It is the
responsibility of the ALJ to undertake that analysis in the first
instance, not the court.”).

However, the ALJ's reference to

findings "detailed in part above" and his explication of
Childers's medical history throughout his decision provides the
necessary support for his conclusion.

For instance, the ALJ

noted that several physicians treated Childers's back issues, and
none found more than slight irregularities necessitating more
than conservative treatment and resulting in significant
limitations.

Relatedly, the ALJ noted that more than one of

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Childers's medical providers expressed concern with Childers's
complaints of pain – and her use of painkillers – despite
"numerous objective studies showing no significant
abnormalities."
Against this backdrop, the court finds that the ALJ's
decision to accord little weight to Dr. Rodriguez's opinion is
supported by substantial evidence.
C. Credibility
In conjunction with assessing Childers's RFC, the ALJ
necessarily assessed Childers's credibility concerning her
subjective complaints.

See 20 C.F.R. § 404.1545(a)(3).

In so

doing, the ALJ was required to employ a two-step process, first
determining if a medically determinable impairment is present,
and if so, then evaluating the intensity, persistence and
limiting effects of the alleged symptoms associated with such
impairment.

20 C.F.R. § 404.1529.

The second step of the

analysis requires the ALJ to consider several factors: 1)
claimant's daily activities; 2) the location, duration, frequency
and intensity of pain or other symptoms; 3) precipitating and
aggravating factors; 4) effectiveness and side effects of
medication; 5) effectiveness of treatment; 6) measures taken by
the claimant to relieve symptoms; and 7) any other factors
concerning claimant's limitations.

20 C.F.R. §404.1529(c); Avery

v. Sec'y of Health & Human Servs., 797 F.2d 19, 29 (1st Cir.

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1986).
Here, the ALJ found that Childers did suffer from "medically
determinable impairments that could cause the alleged symptoms."
But at the second step, the ALJ concluded that Childers's
statements concerning the severity of those symptoms were not
entirely credible.

Childers argues on appeal that the ALJ failed

to consider the required factors in reaching his conclusion.

The

record suggests otherwise and the court therefore finds no error.
Childers argues specifically that the ALJ failed to address
daily activities and medication side effects.
untrue.

This is simply

The ALJ explicitly noted that Childers's descriptions of

her limited daily activities did not square with objective
medical findings and were inconsistent, both factors that tended
to diminish the credibility of the complaints.

Similarly, the

ALJ observed that treatment notes suggested that medicinal side
effects were mild and that dosage or medication adjustments in
response to complaints ameliorated her symptoms.
As Childers offered no further critique of the ALJ's
credibility assessment no more need be said on the issue.4

4

That

To the extent Childers argues that the ALJ failed to make
specific findings as to every factor listed in Avery, such detail
is unnecessary. See Young v. Colvin, 2014 DNH 233, 2014 WL
5605082 *5 (D.N.H. Nov. 4, 2014) ("[a]s a matter of law, the ALJ
is not required to address all of the Avery factors in his
decision." (quoting Matos v. Astrue, 795 F. Supp. 2d 157, 164 (D.
Mass. 2001)(citing N.L.R.B. v Beverly Enters.-Mass., Inc., 174
F.3d 13, 26 (1st Cir. 1999)).
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assessment is entitled to deference, especially where, as here,
it is supported by specific findings.

Frustaglia v. Sec'y of

Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987).
IV.

Conclusion
The ALJ's findings are supported by substantial evidence.

Therefore, the Acting Commissioner's motion to affirm5 is GRANTED
and the plaintiff's motion to reverse6 is DENIED.

SO ORDERED.

Dated: July 17, 2015
cc:

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

5

Doc. No. 10.

6

Doc. No. 8.
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