Robitaille v. US Social Security Administration, Commissioner
Filing
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///ORDER granting 9 Motion to Affirm Decision of Commissioner; denying 8 Motion to Reverse 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
Tina Ann Robitaille,
v.
Civil No. 15-cv-258-JL
Opinion No. 2016 DNH 121
Carolyn Colvin,
Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
Tina Ann Robitaille has appealed the Social Security
Administration’s (“SSA”) denial of her application for Social
Security disability benefits.
An administrative law judge at
the SSA (“ALJ”) ruled that, despite several severe impairments,
Robitaille retains the residual functional capacity (“RFC”) to
perform jobs that exist in significant numbers in the national
economy, and thus is not disabled.
404.1505(a), 416.905(a).
See 20 C.F.R. §§
The Appeals Council twice granted
Robitaille’s request for review of prior decisions, see id. §
404.967, each time vacating the ALJ’s decision and remanding for
further proceedings.
The Appeals Council denied Robitaille’s
latest request for review, with the result that the ALJ’s third
decision became the final decision on Robitaille’s application,
see id. § 404.981.
Robitaille then appealed the decision to
this court, which has jurisdiction under 42 U.S.C. § 405(g)
(Social Security).
Robitaille has moved to reverse the decision, see L.R.
9.1(b), contending that the ALJ erred in her analysis of
Robitaille’s mental impairments, migraine headaches, and
credibility, at steps two and four of her analysis.
The Acting
Commissioner of the SSA has cross-moved for an order affirming
the ALJ’s decision.
See L.R. 9.1(e).
After careful
consideration, the court grants the Acting Commissioner’s motion
to affirm (and denies Robitaille’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.”
Ward v.
Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
The
court will uphold the ALJ’s decision if it is supported by “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 in the record
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 Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991).
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II.
Background1
The ALJ invoked the requisite five-step process in
assessing Robitaille’s request for disability benefits.
C.F.R. § 416.920.
See 20
After concluding that Robitaille had not
engaged in substantial gainful activity during the period
between the alleged onset of her disability on September 22,
2009, and the date she was last insured, December 31, 2012, the
ALJ analyzed the severity of Robitaille’s impairments.
The ALJ
concluded that Robitaille suffers from three severe physical
impairments:
degenerative disk disease, fibromyalgia, and
migraine headaches.
Admin R. at 23.
After reviewing
Robitaille’s treatment records, her own statements, and opinions
from several consultants and treating providers, the ALJ
concluded that Robitaille’s mental impairments -- adjustment
disorder and pain disorder -- caused no more than “mild
limitation[s]” on Robitaille’s activities of daily living,
social functioning, and concentration, persistence, and pace,
and that Robitaille experienced no episodes of decompensation of
extended duration, and thus were not severe.
See 20 C.F.R.
§ 1520a; id. at Pt. 404, Subpt. P, App. 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 (document no. 10) is
incorporated by reference. See L.R. 9.1(d).
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At the third step, the ALJ found that Robitaille’s severe
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.
She did not consider Robitaille’s alleged mental impairments at
that step.
The ALJ then concluded that Robitaille retained the
RFC to perform unskilled or semi-skilled light work.
Finally,
finding that Robitaille was unable to perform her past, relevant
work as an insurance sales agent, see 20 C.F.R.§ 404.1565, the
ALJ continued to step five, where she concluded that Robitaille
could perform jobs that exist in significant numbers in the
economy.
Therefore, the ALJ found, Robitaille was not disabled
within the meaning of the Social Security Act.
III. Analysis
Robitaille challenges the ALJ’s analysis on four fronts.
First, Robitaille contends that the ALJ erred by failing to
properly evaluate her mental impairments when assessing her RFC.
Second, Robitaille argues that the ALJ erred by failing to
consider and account for the impact of Robitaille’s migraine
headaches, which the ALJ found to be a severe impairment, on her
ability to sustain work-related activities.
Third, Robitaille
maintains that the ALJ erred in evaluating her subjective
complaints and credibility.
Finally, Robitaille contends that
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the Acting Commissioner failed to sustain her burden at step
five of the process.
Addressing each of these in turn, the
court concludes that the ALJ did not err in crafting
Robitaille’s RFC nor in evaluating her subjective complaints and
credibility.
A.
Mental impairments
Robitaille challenges the ALJ’s conclusion that she does
not suffer from a severe mental impairment and that her mental
impairments did not impact her RFC.
As to the first point, if
the ALJ erred in failing to find that Robitaille suffered from
severe mental impairments at step two, such error would be
harmless, because the ALJ found that Robitaille suffered from
other severe impairments and continued to the next step.
See
McDonough v. S.S.A., 2014 DNH 142, 27 (“[A]n error in describing
a given impairment as non-severe is harmless so long as the ALJ
found at least one severe impairment and progressed to the next
step of the sequential evaluation.”).
The court therefore proceeds to consider whether the ALJ
erred in crafting an RFC that does not appear to account for
Robitaille’s alleged mental impairments.
In crafting an RFC,
the ALJ “must consider limitations and restrictions imposed by
all of an individual's impairments, even those that are not
‘severe.’”
Stephenson v. Halter, 2001 DNH 154, 4–5.
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Robitaille
contends that the ALJ erred by failing to reflect in her RFC the
conclusion that Robitaille had “at least moderate concentration,
persistence, or pace difficulties . . . .”
(document no. 8) at 4.
Plaintiff’s Mem.
In support of this argument, Robitaille
challenges the ALJ’s treatment of the medical opinion evidence
with respect to her mental impairments.
Both Dr. Tingley, a medical expert who testified at one of
the administrative hearings, and Dr. Craig Stenslie,1 the state
agency consultant who reviewed Robitaille’s records, concluded
that Robitaille had mild restrictions of activities of daily
living and moderate difficulties in maintaining concentration,
persistence, or pace.
Admin R. at 89, 854.
Dr. Stenslie also
opined that Robitaille had mild difficulties in maintaining
social functioning.
Id. at 854.
An evaluating psychologist,
Dr. Janet Levenson, concluded that Robitaille had “mild
impulsivity issues that negatively impact accuracy in completing
tasks.”
Admin. R. at 826.
These opinions, Robitaille contends,
require the ALJ’s RFC to account, in some manner, for her
difficulties in maintaining concentration, persistence, or pace.
The record, however, reflects that the ALJ did account for
Robitaille’s mental impairments.
The ALJ considered and
acknowledged the opinions of Drs. Tingley and Stenslie with
The ALJ and, perhaps as a result, both parties, referred to
Dr. Stenslie as “Dr. Stensile.”
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respect to Robitaille’s difficulties, but afforded those
opinions only moderate weight as inconsistent with treatment
notes indicating that, as a baseline, Robitaille “presented with
normal attention and concentration, which is not consistent with
a moderate limitation in this domain.”
Admin. R. at 27.
The
ALJ further noted that Dr. Stenslie relied, in part, on the
opinion of Dr. Levenson, an examining source, whose conclusion
that Robitaille “has mild impulsivity issues that negatively
impact accuracy in completing tasks” was not supported by
documentation anywhere else in the record.
Admin. R. at 27.
Finally, the ALJ cited Robitaille’s daily activities as the
basis for her conclusion that Robitaille “was able to sustain
the attention and concentration” necessary for performing those
activities, which “are not consistent with a moderate limitation
in this domain.”
Admin R. at 27.
Next, Robitaille contends that the ALJ should have given
more weight to the opinion of Robitaille’s treating neurologist,
Dr. Vijay Thadani, and Registered Nurse Kim Keaton.
RN Keaton
opined that symptoms of Robitaille’s depression, anxiety, and
somatoform disorder would “occasionally” “interfere with
attention and concentration needed to perform even simple work
tasks.”
Admin. R. at 922.
Dr. Thadani similarly opined that
symptoms from Robitaille’s anxiety and from psychological
factors affecting her physical condition would so interfere
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“frequently.”
Id. at 993.
The ALJ considered these opinions
and afforded them little weight.
The ALJ noted several
inconsistencies between RN Keaton’s opinions and the record.
Admin R. at 30-31.
As for Dr. Thadani, the ALJ noted his
opinion that Robitaille was capable of low-stress work and that
his opinion as to the frequency of symptoms interfering with
Robitaille’s attention and concentration was inconsistent with
his observations that Robitaille’s “neurological examination was
essentially normal,” Admin R. at 31-31.
In sum, the ALJ considered the evidence concerning
Robitaille’s mental impairments and their impact on her ability
to work when crafting her RFC.
The court accordingly cannot
conclude that the ALJ failed to weigh that evidence.
B.
Migraine headaches
Robitaille also challenges the ALJ’s RFC on a second
ground.
She contends the ALJ failed to account for the effects
of her migraine headaches -- despite concluding that they
constituted a severe impairment -- because the ALJ “simply fails
to explain how Ms. Robitaille could work during those one or two
days per week that she was experiencing a severe migraine.”
Plaintiff’s Mem. (document no. 8) at 9.
Though the ALJ’s treatment of the impact of Robitaille’s
migraines on her RFC assessment is light, it is present, and it
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is supported by substantial evidence in the record.
The ALJ
evaluated several opinions, including those of Registered Nurse
Kim Keaton and Dr. Thadani, both of whom treated Robitaille.
Dr. Thadani, Robitaille’s treating neurologist, consistently
opined that it was “undeterminable” and “unknown” how often
Robitaille would miss work.
Admin. R. at 996, 1042, 1058.
As
the ALJ noted, while RN Keaton opined in 2007 that Robitaille’s
impairments were “likely to produce ‘good days’ and ‘bad days’,”
she did not indicate how often Robitaille would be absent from
work as a result.
Admin. R. at 30, 798.
In 2013, Keaton opined
that Robitaille would be absent from work, as a result of her
impairments, “[m]ore than four days per month,” without -- as
the ALJ noted -- any explanation for the discrepancies in her
opinion.
Admin. R. at 31, 925.
The evaluation of a state
agency consultant, Dr. Ray, did not address the question of
whether Robitaille would miss days due to her migraines.
The medical evidence of record upon which the plaintiff
relies all stems from Dr. Thadani’s treatment notes in 2014 and
his opinion rendered the same year.
While those observations
support the ALJ’s conclusion designating Robitaille’s migraine
headaches a “severe impediment,” see Admin R. at 1033, 1054,
1065, as the Acting Commissioner points out, they offer no more
support for a conclusion that Robitaille would miss days at work
than the medical opinions and other evidence considered by the
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ALJ.
The ALJ also noted that, on a regular basis, Robitaille
denied having headaches.
See Admin. R. at 34, 36; see also id,
at 866, 913, 934, 938, 941.
This leaves Robitaille’s testimony and that of her
daughter, Jessica Easton as the source of the conclusion that
Robitaille would miss work, and how often she would do so.
For
the reasons discussed infra Part III.C, the ALJ did not err when
she found Robitaille’s subjective complaints less than credible.
She also did not err in discounting the persuasive value of
Eaton’s testimony, in light of Eaton’s relationship with
Robitaille and the inconsistencies that the ALJ identified
between Eaton’s reports of Robitaille’s symptoms and those of
Robitaille and Robitaille’s treating providers.
Admin. R.
at 36.
Accordingly, the court concludes that the ALJ did not err
in her analysis of Robitaille’s migraine headaches when crafting
the RFC.
C.
Subjective complaints and credibility
Robitaille next contends that the ALJ’s decision to
discount the credibility of Robitaille’s testimony concerning
the intensity, persistent, and limiting effects of symptoms
attributable to her headaches, fibromyalgia, and spinal
disorder, was not supported by substantial evidence.
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The ALJ is
required “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.”
Scanlon v. Astrue, 2013 DNH 088, 15 n.4.
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).
As Robitaille observes, the ALJ evaluates subjective
complaints 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
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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 also 20 C.F.R. § 404.1529.
Here, the ALJ concluded that Robitaille’s underlying impairments
crossed the threshold of the first question, in that her
“medically determinable impairments could reasonably be expected
to cause the alleged symptoms,” but concluded at the second and
third steps that Robitaille’s statements about her symptoms were
not credible.
Admin. R. at 29.
In support of the latter
conclusions, the ALJ cited test findings and clinical
observations suggesting that Robitaille put forth “variable
levels of physical effort, which suggest[ed] that [she] may be
able to do more physically than was demonstrated during
testing.”
Admin R. at 32.
The ALJ further cited to specific
instances of discrepancies between Robitaille’s reported
“subjective tolerances versus actual tolerances” observed during
testing.
Id. at 32-33.
Finally, the ALJ discounted
Robitaille’s credibility based on her own reported activities of
daily living, including caring for animals, doing laundry and
household chores, paying bills, using the computer, and doing
the majority of the housework.
Admin R. at 36.
It is the ALJ’s prerogative to weigh this evidence and draw
conclusions from it, see Seavey v. Barnhart, 276 F.3d 1, 10 (1st
Cir. 2001).
Such conclusions permissibly include negative
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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).
Accordingly, because the ALJ’s decision “contains specific,
clear reasons for [her] credibility determination that are
supported by record evidence,” Perry v. Colvin, 2014 DNH 198, 7,
the court finds no error.
D.
Step five
Finally, Robitaille argues that the ALJ erred when she
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.
IV.
Conclusion
For the reasons just explained, the ALJ’s conclusion that
Robitaille is not disabled is supported by substantial evidence
in the record.
Robitaille’s motion to reverse the SSA’s
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decision1 is DENIED and the Acting Commissioner’s motion to
affirm2 is GRANTED.
The clerk shall enter judgment accordingly
and close the case.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated:
cc:
July 20, 2016
Raymond J. Kelly, Esq.
Terry L. Ollila, AUSA
1Document
no. 8.
2Document
no. 9.
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