Achilles v. US Social Security Administration, Acting Commissioner
///ORDER denying 9 Motion to Reverse Decision of Commissioner; granting 11 Motion to Affirm Decision of Commissioner. Clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-367-LM
Opinion No. 2017 DNH 209
Nancy A. Berryhill, Acting
Commissioner of Social Security1
O R D E R
Scott Achilles seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying his application for
Supplemental Security Income (“SSI”) under Title XVI.
moves to reverse the Commissioner’s decision, contending that
the Administrative Law Judge (“ALJ”) erred in failing to give
substantial weight to his treating physician’s opinion and erred
in her residual functional capacity assessment.
Commissioner moves to affirm.
For the reasons that follow, the
decision of the Acting Commissioner is affirmed.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
Nancy A. Berryhill became Acting Commissioner of the Social
Security Administration on January 23, 2017, replacing Carolyn
W. Colvin. See Fed. R. Civ. P. 25(d).
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.”
Nguyen v. Chater,
172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001).
The court defers to the ALJ’s
factual findings as long as they are supported by substantial
§ 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34
(1st Cir. 2016).
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis.
20 C.F.R. § 416.920.
The claimant bears the burden through the first four steps of
proving that her impairments preclude her from working.2
v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).
At the fifth
step, the Acting Commissioner has the burden of showing that
jobs exist which the claimant can do.
Heggarty v. Sullivan, 947
F.2d 990, 995 (1st Cir. 1991).
On September 13, 2013, Achilles filed for SSI benefits,
alleging disability due to seizures and severe back pain.
originally alleged that he became disabled on November 15, 2008,
The first four steps are (1) determining whether the
claimant is engaged in substantial gainful activity; (2)
determining whether he has a severe impairment; (3) determining
whether the impairment meets or equals a listed impairment; and
(4) assessing the claimant’s residual functional capacity and
his ability to do past relevant work. 20 C.F.R. § 416.920(a).
but amended his onset date to November 21, 2012.
He was 36
years old in 2012 when he alleges that he became disabled.
The medical records related to Achilles’ back pain begin in
November 2012 when Achilles saw Dr. Adam Pearson, complaining of
a history of chronic back pain that had increased in the
previous six months.
Upon physical examination, Achilles
appeared comfortable and in no acute distress with normal gait
and leg strength, although he was tender in his back on
palpation and his ability to flex and extend was limited by
Dr. Pearson noted that Achilles had undergone an MRI in
July 2012 which showed some degenerative changes but no
scoliosis or spondylolisthesis.
Dr. Pearson also noted that
Achilles’s back pain was not radicular, and he scheduled
Achilles for medical branch blocks.
On June 19, 2013, Achilles went to Paincare Centers for his
back pain and was examined by Francis Valenti, APRN, CPNA.
Nurse Valenti found that Achilles’s gait, spine alignment, and
mobility were normal, and that he had normal range of motion and
strength in his arms and legs.
Nurse Valenti administered facet
joint injections, which Achilles said did not help his everyday
pain, although he appeared to be normal on examination.
Achilles was referred to physical therapy to improve his overall
In August 2013, Achilles’s primary care provider, Sonya
Gilbert PA-C (a Certified Physician Assistant), noted that
oxycodone was generally effective in controlling Achilles’s back
pain and that he took it only when the pain was severe.
Gilbert’s examination showed normal results although Achilles
had a limited range of motion due to pain.
Achilles saw PA
Gilbert again in October and December 2013 and had similar
exams, though he used a cane for assistance during the December
Achilles saw Nurse Valenti at Paincare Centers again on
September 25, 2013, and complained that physical therapy had
exacerbated his lower-back pain, which was now radiating to his
Despite those complaints, Achilles’s examination
yielded normal results.
Nurse Valenti recommended a lumbar MRI
to rule out a spinal disc issue.
Achilles did not have an MRI
and did not return to Paincare Centers.
In May 2014, Achilles told PA Gilbert that oxycodone was no
longer working, and she increased the dosage.
Achilles was pleasant and in no acute distress, although he had
some indications of back pain.
PA Gilbert ordered a lumbar MRI,
but Achilles was unable to get the MRI because of insurance
PA Gilbert referred Achilles to Dr. Paul Kamins for an
orthopedic evaluation, which was done on October 9, 2014.
examination, Achilles had positive straight-leg raising on the
left and pain while bending.
strength, were normal.
His other results, including
Dr. Kamins ordered a lumbar MRI, which
showed a disc protrusion, a disc osteophyte, and mild rightsided foraminal narrowing.
The reviewing radiologist noted that
the foraminal narrowing was also present on the November 2012
MRI, and observed that “there is nothing seen on the left side
to correspond to the patient’s increasing symptomatology.”
Seizures and Mental Health
On January 25, 2013, Achilles saw Dr. Gopalan Umashankar
for evaluation of his seizures, and Achilles reported incidents
of twitching, drooling, and some incontinence “after coming off
Dr. Umashankar prescribed Keppra and Lamictal
for a four-week trial, and instructed Achilles not to drive.
On March 7, 2013, Achilles again saw Dr. Umashankar
complaining of frequent staring spells.
His examination was
unremarkable and Dr. Umashankar noted that it was “unclear if
these staring spells are truly seizures or if the[s]e are
Dr. Umashankar ordered a 24-hour EEG study,
which confirmed that Achilles had general epilepsy but the EEG
was normal, despite Achilles’s report of seizures during the
Achilles saw Dr. Barry Roth, a psychiatrist, for depression
several times in late 2012 and early 2013 without any
On March 20, 2013, Achilles underwent a
neuropsychological evaluation with Dr. Matthew Holcomb, a postdoctoral fellow operating under the supervision of Dr. Robert
Roth, a neuropsychologist.
Dr. Holcomb found that the testing
and Achilles’s reports were consistent with “mild frontaltemporal systems dysfunction, possibly greater for the left
hemisphere,” and that “the etiology of [Achilles’s] cognitive
problems is likely multifactorial including seizures and ADHD.”
Dr. Holcomb also felt that moderate to severe emotional distress
was playing a central role in Achilles’s cognitive functioning.
He recommended proactive planning and organizational strategies,
and advised Achilles to limit distractions, take occasional
breaks, and maintain a healthy lifestyle.
In May 2013, Achilles saw Maria McHose, PMHNP, who treated
him for ADHD and depression.
Nurse McHose noted that Achilles
was cooperative and friendly, had normal thoughts, a grossly
intact memory, fair insight and judgment, and questionable
Nurse McHose later diagnosed Achilles with
ADHD and depression, and assigned him a Global Assessment of
Functioning (“GAF”) score of 61, which indicates mild symptoms.
Nurse McHose found similar results at subsequent visits.
Eventually, Nurse McHose prescribed Lexapro, and added Vyvnase
in February 2014 to address Achilles’s reports of “persistent
avolition and attentional difficulties.”
In December 2013, Achilles twice sought emergency treatment
When he followed up with Dr. Umashankar on
December 9, 2013, Dr. Umashankar observed an episode that he
characterized as a psychogenic non-epileptic seizure, and
prescribed Lexapro and counseling.
He advised Achilles that he
did not need to seek emergency treatment for these non-epileptic
episodes and should just lie down until they passed.
On January 8, 2014, Achilles saw Dr. Krzysztof Bujarski, a
neurologist, who noted that Achilles had been diagnosed with
idiopathic generalized epilepsy but had been doing quite well on
medication until two months ago.
He noted that Achilles
reported experiencing new seizures and that he had had 50 such
seizures in the two months prior to his appointment with Dr.
Dr. Bujarski diagnosed him with likely “psychogenic
Achilles subsequently underwent EEG video monitoring to
determine the etiology of his new reported seizures.
overnight monitoring, Achilles had one event that did not
register on the EEG, suggesting that it was not related to
On July 13, 2013, Achilles went to the hospital with a
complaint of “episodic unresponsiveness,” and his wife stated
that he had occasionally been unresponsive for the past three
During a neurologic examination, he followed commands,
He was diagnosed with conversion disorder and
discharged with instructions to follow up with his primary care
In March 2015, Achilles saw Dr. Umashankar.
wife and mother, who went with him to the visit, told Dr.
Umashankar that Achilles had memory problems and had “one
seizure like the old real seizure.”
Dr. Umashankar referred
Achilles to a psychiatrist and noted that he was cleared to
State Agency Examinations and Assessments
Dr. Trina Jackson
On December 21, 2013, Achilles underwent a consultative
psychological examination with Dr. Trina Jackson, Psy.D.
Jackson noted that Achilles “did not appear to be malingering or
purposefully exaggerating,” but “does appear to be somewhat
preoccupied with his problems and perhaps magnifies them to some
She found that he could interact appropriately with
others; he could understand and remember both short and detailed
instructions; he could concentrate and persist independently and
on a sustained basis; and he could deal appropriately with workrelated stress.
She diagnosed him with ADHD (“Well-managed with
medication”), dysthymic disorder, and rule-out conversion
disorder (“with documentation of pseudoseizures”).
recommended that Achilles restart his psychotropic medications
and seek weekly counseling to help manage his reported
Dr. Edward Martin
On December 24, 2013, Dr. Edward Martin, a state agency
psychologist, reviewed Achilles’s available medical records,
including Dr. Jackson’s consultative report.
He opined that
Achilles did not have a severe mental impairment.
Dr. Louis Rosenthall
On March 6, 2014, Dr. Louis Rosenthall, a state agency
physician, reviewed Achilles’s available medical records.
opined that Achilles had no exertional limitations, but could
never climb ladders, ropes, or scaffolds, and should avoid all
exposure to hazards such as machinery and heights because of his
epilepsy and use of narcotic pain medications.
Medical Source Statements
From 2013 through 2015, PA Gilbert filled out several
Physician/Clinical Statement of Capabilities forms in relation
to Achilles’s requests for benefits from the Financial
Assistance for Needy Families program.
On the March 21, 2013
form, PA Gilbert wrote that Achilles was “unable to drive or
operate machinery,” and that “there is no safe work environment
for this patient.”
She also checked boxes indicating that
Achilles required 24-hour care and monitoring, and that he could
not perform any physical activities whatsoever.
indicated that Achilles had marked difficulty maintaining
attention for extended periods, and moderate difficulties with
hygiene remembering locations and work-like procedures;
understanding and remembering short, simple instructions;
sustaining routines without frequent supervision; making simple
work-related decisions; and performing at a consistent pace.
On the August 28, 2013 form, PA Gilbert proposed similar
restrictions, but indicated that Achilles no longer had any
On the January 28, 2014 form, however, PA
Gilbert reinstated the mental limitations she had assessed in
On the January 19, 2015 form, PA Gilbert again
opined that Achilles could not safely work, could not do any
physical activities, and had moderate to marked mental
On the February 23, 2015 form, PA Gilbert opined that
Achilles had been incapacitated since 1994 due to seizure
disorder, lumbar radiculopathy, and chronic back pain, and that
she was basing her assessment on a December 16, 2014
Dr. Umashankar completed a similar form,
indicating that Achilles had been disabled since “childhood.”
Hearing Before ALJ
A hearing before the ALJ was held on Achilles’s application
on April 1, 2015.
Achilles was represented by an attorney and
testified at the hearing.
Achilles testified that he had not worked since 2008.
asked to focus on his physical and mental health issues since
November 2012, Achilles testified that his “biggest issue has
been [his] lower back pain,” which had gotten to the point where
he had “trouble lifting a gallon of milk.”
He brought a cane to
the hearing, but testified that it was not prescribed.
he had not been back to see Dr. Kamins since his October 2014
MRI, and was not scheduled to do so.
Achilles testified that he saw Dr. Umashankar for his
seizures, but he was told that his pseudoseizures were
psychiatric, so Dr. Umashankar could not help.
He said he had
not sought any specialized mental health treatment in about a
year because it did not help.
Achilles testified that oxycodone helped his back pain
“[s]lightly,” and his average pain level while lying around
during the day was “between three and four,” whereas doing
housework or other activities “can bring it up to a six.”
testified about his daily activities.
A vocational expert testified at the hearing.
asked the vocational expert to consider a hypothetical
individual, with the same age, education, and work history, and
residual functional capacity as Achilles.
The vocational expert
testified that such an individual could do light or sedentary
jobs as a price marker, housekeeping cleaner, cafeteria
attendant, data clerk, addresser, and toy stuffer.
vocational expert testified that no jobs would accommodate
excessive absenteeism or the need to lie down during the day.
The ALJ issued an unfavorable decision on May 14, 2015.
The ALJ found that Achilles had severe impairments due to
epilepsy, dysthymic disorder (rule out conversion disorder),
psychogenic non-epileptic seizures, obesity, and degenerative
disc disease of the lumbar spine.
The ALJ also found that
Achilles’s impairments did not meet or equal a listed
The ALJ concluded that Achilles had the residual
functional capacity to do light work under 20 C.F.R. §
416.967(b), except that he is unable to climb ladders, ropes and
scaffolds, and is able to perform occasional stooping and
The ALJ also concluded that Achilles must avoid
exposure to potential hazards such as moving machinery,
unprotected heights, and hot surfaces or hot appliances.
further concluded that Achilles is able to perform routine, dayto-day tasks, with few changes, and that he must avoid direct
interaction with the general public, but is able to have
With that evaluation, the ALJ found that Achilles could not
do his past relevant work as a grinder operator or bottling
attendant, but could do a significant number of light or
sedentary jobs, i.e., price marker, housekeeping cleaner,
cafeteria attendant, data clerk, addresser, and toy stuffer.
Therefore, the ALJ found that Achilles was not disabled within
the meaning of the Social Security Act.
The Appeals Council
affirmed that ALJ’s decision, making the ALJ’s decision the
Acting Commissioner’s final decision.
Achilles contends that the ALJ erred in her assessment of
Achilles’s residual functional capacity by ignoring his treating
physician’s opinion and by basing her residual functional
capacity assessment on raw medical data.
Commissioner moves to affirm.
Treating Physician’s Opinion
The ALJ is required to consider the medical opinions in a
claimant’s administrative record.
20 C.F.R. § 416.927(b).
Medical opinions are evaluated 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
A treating medical source’s
opinion about the claimant’s impairment will be given
controlling weight if it “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
An ALJ must give “good reasons”
for the weight given to a treating source’s medical opinion.
Achilles contends that the ALJ ignored his treating
physician’s medical opinion, citing the March 20, 2013
neuropsychological evaluation administered by Dr. Holcomb, who
was supervised by Dr. Roth.
He argues that the ALJ should have
addressed the evaluation results under the treating physician
standard because, he contends, Dr. Roth was his treating
The Acting Commissioner points out that Achilles
has confused two different Dr. Roths.
Dr. Barry Roth was Achilles’s treating psychiatrist who
referred Achilles to Dr. Robert Roth for a neuropsychological
Dr. Holcomb, a post-doctoral neuropsychology
fellow, conducted the evaluation under the supervision of Dr.
Neither Dr. Holcomb nor Dr. Robert Roth was
Achilles’s treating psychiatrist.
Therefore, the evaluation
results were not the opinion of a treating source, and the ALJ
was not required to assess the evaluation under the treating
In any event, the ALJ did address the evaluation.
explained that the limitations found in the evaluation due to
inattention and hyperactivity were not supported by the record.
Specifically, Achilles’s counselor doubted a diagnosis of ADHD
because Achilles was able to play video games all day, and no
other objective medical records supported a limitation due to
A consultative examiner also found that
Achilles’s ADHD symptoms were well controlled with medication.
Achilles also cites the findings made by PA Gilbert about
certain mental or cognitive limitations but he does not explain
what, if any, error he ascribes to the ALJ with respect to the
evaluation of those opinions.
PA Gilbert provided primary
medical care, not psychological care, to Achilles, and the ALJ
gave some weight to PA Gilbert’s opinions pertaining to
Achilles’s physical limitations.3
The ALJ addressed PA Gilbert’s
opinions at length, and Achilles has not shown any error in that
Therefore, Achilles has not shown that the ALJ
ignored a treating source’s opinion.
Residual Functional Capacity Assessment
Achilles argues that the ALJ’s residual functional capacity
assessment with respect to his limitations due to back pain and
pseudo-seizures is not based on any medical evidence.
Achilles charges, the ALJ impermissibly relied on her own lay
opinion to interpret raw medical data.
The Acting Commissioner
contends that the ALJ properly relied on opinion evidence in the
record to assess Achilles’s functional capacity and fashioned an
assessment that was more restrictive—that is favorable to
Achilles—than most of the opinions provided.
A claimant’s “residual functional capacity is the most [he]
can still do despite [his] limitations.”
20 C.F.R. §
A residual functional capacity is assessed
“based on all the relevant evidence in [the claimant’s] case
In addition, the ALJ considers all of the
As a Physician’s Assistant, PA Gilbert is not an “acceptable
medical source” and her opinion was not presumptively entitled
to controlling weight. 20 C.F.R. § 416.913(a); Ayala v. Colvin,
No. 3:16-cv-30009-KAR, 2017 WL 1148276, at *8 (D. Mass. Mar. 27,
claimant’s medically determinable impairments, even those not
found to be severe at Step Two.
The ALJ’s residual functional capacity assessment is
reviewed to determine whether it is supported by substantial
Irlanda Ortiz v. Sec’y of Health & Human Servs., 955
F.2d 765, 769 (1st Cir. 1991); Pacensa v. Astrue, 848 F. Supp.
2d 80, 87 (D. Mass. 2012).
An ALJ may not “ignore medical
evidence or substitute his own views for uncontroverted medical
Nguyen, 172 F.3d at 35.
On the other hand, the ALJ
may “piece together the relevant medical facts from the findings
and opinions of multiple physicians.”
Evangelista v. Sec’y of
Health & Human Servs., 826 F.2d 136, 144 (1st Cir. 1987).
doing so, the ALJ may consider medical opinions in light of the
record evidence and, giving the claimant the benefit of the
doubt, may assess a more limited residual functional capacity
than was found in the medical opinions.
Schwartz v. Berryhill,
No. 16-cv-163-SM, 2017 WL 3736789, at *6 (D.N.H. Aug. 30, 2017);
Barup v. Soc. Sec. Admin., No. 16-cv-62-PB, 2017 WL 1194644, at
*6 (D.N.H. Mar. 31, 2017); Deane v. Colvin, --- F. Supp. 3d ---,
2017 WL 1186319, at *11 (D. Mass. Mar. 29, 2017).
Dr. Rosenthall, a state consultant physician, found that
Achilles had no exertional level limitations due to back pain
but that he must not do climbing activities and must avoid
exposure to hazards.
PA Gilbert found that Achilles could not
do work at any exertional level, even sedentary.
residual functional capacity assessment, the ALJ limited
Achilles to light work, precluded climbing activities,
restricted certain postural activities to be done only
occasionally, and restricted exposure to hazards.
In making that assessment, the ALJ gave PA Gilbert’s
opinion about Achilles’s limitations some weight but explained
that the severity of limitations she found was not supported by
her own records or any of the other treatment records.
the ALJ adequately explained her reasons for giving PA Gilbert’s
opinion only some weight.
The ALJ also gave Dr. Rosenthall’s
opinion some weight but added a restriction to the light
exertional level because of additional medical evidence of back
pain and non-epileptic seizures added to the record after Dr.
Even assuming that adding these
additional limitations could be considered error, because the
added limitation was favorable to Achilles, at worst the
assessment would be harmless error.
3736789, at *6.
See Schwarz, 2017 WL
Pseudo-Seizures and Mental Health
Achilles faults the ALJ for failing to consider the
limitations caused by his pseudo-seizures, depression, and ADHD
in assessing his residual functional capacity.
argues that the ALJ’s limitation to light work, imposed in part
for the pseudo-seizures, was improper because there was no
medical opinion to support that limitation.
Commissioner contends that the ALJ properly assessed Achilles’s
mental functioning and seizure limitations.
Consideration of pseudo-seizures, depression and ADHD
The ALJ gave great weight to the opinion of the
consultative examiner, Trina Jackson, a psychiatrist, who found
that Achilles’s ADHD was well-managed on medication and that he
was able to function effectively and consistently.4
The ALJ also
explained that despite his reports of increased depression,
Achilles’s mental status examinations produced mostly normal
The ALJ discounted PA Gilbert’s opinions related to
seizures and mental health because PA Gilbert is a primary care
The ALJ gave some weight to the opinion of the state agency
psychological consultant, Dr. Edward Martin, whom the ALJ
mistakenly identified as Dr. Rosenthall. Dr. Martin found no
severe mental impairments and only mild functional restrictions.
The ALJ gave that opinion only some weight because she found
that Achilles’s counseling records supported some limitations
because of the effects of situational stressors. The ALJ
therefore included a restriction to routine, day-to-day tasks,
with few changes.
provider and did not provide psychological care, and because her
opinions conflicted with her own and other treatment notes and
The ALJ noted Achilles’s recent diagnosis of non-epileptic
psychogenic seizures or pseudo-seizures.
The ALJ explained that
the pseudo-seizures had no clear trigger but were thought to be
The ALJ commented that despite the pseudo-
seizure diagnosis, Dr. Umashankar, Achilles’s neurologist, had
cleared him to drive.
The ALJ limited Achilles to light exertional capacity in
part because of the evidence of non-epileptic seizures.
residual functional capacity assessment also included a
restriction to routine, day-to-day tasks, with few changes
because of the effects of situational stressors and restrictions
not to climb and to avoid hazards.
Taking all this into
account, the decision shows that the ALJ did consider Achilles’s
pseudo-seizures and that the residual functional capacity
assessment included limitations directed to the pseudo-seizures.
Limitations from pseudo-seizures
Achilles contends that the ALJ’s limitations are improper
because there is no opinion in the record that addresses his
functional capacity in light of the pseudo-seizures.
Achilles’s burden, however, to show that he was disabled.
C.F.R. § 416.912(a).
Achilles acknowledges that he did not
provide and the record did not include an opinion that assessed
his functional capacity in light of the pseudo-seizures.
contrast, as the ALJ noted, Achilles’s treating neurologist
cleared him to drive, despite the pseudo-seizures.
The ALJ thus considered the evidence related to Achilles’s
pseudo-seizures and fashioned commonsense limitations to address
their functional effects, if any.
See Chambers v. Colvin, No.
16-cv-087-LM, 2016 WL 6238514, at *9 (D.N.H. Oct. 25, 2016).
Achilles points to no opinion in the record that provides a
contrary assessment of his functional capacity in light of the
Under the circumstances presented here,
substantial evidence supports the ALJ’s residual functional
For the foregoing reasons, the claimant’s motion to reverse
and remand (document no. 9) is denied.
Commissioner’s motion to affirm (document no. 11) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
United States District Judge
September 25, 2017
Robert J. Rabuck, Esq.
Laurie Smith Young, Esq.
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