Champine v. US Social Security Administration, Acting Commissioner

Filing 15

///ORDER denying 8 Motion to Reverse Decision of Commissioner; granting 10 Motion to Affirm Decision of Commissioner. So Ordered by Judge Paul J. Barbadoro.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Stephanie Champine
v.

Civil No. 16-cv-539-PB
Opinion No. 2018 DNH 008

Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration

MEMORANDUM AND ORDER
Pursuant to 42 U.S.C. § 405(g), Stephanie Champine moves to
reverse the Acting Commissioner’s decision to deny her
application for supplemental security income, or SSI, under
Title XVI of the Social Security Act, 42 U.S.C. § 1382.

The

Acting Commissioner, in turn, moves for an order affirming her
decision.

For the reasons that follow, the decision of the

Acting Commissioner, as announced by the Administrative Law
Judge (“ALJ”), is affirmed.

I. BACKGROUND
The parties have submitted a Joint Statement of Material
Facts.

That statement, doc. no. 11, is part of the court’s

record and will be summarized here, rather than repeated in
full.
Before Champine graduated from high school in 2009 with a

regular diploma, testing had revealed a full-scale intelligence
quotient (“IQ”) of 85, a verbal IQ of 75, and a performance IQ
of 99.

Testing conducted in July 2015 revealed a full-scale IQ

of 77, a verbal IQ of 70, and a performance IQ of 90.
In April 2013, Champine applied for SSI, claiming that she
had been disabled since January 1, 2007 as a result of
depression and bipolar disorder.

Subsequently, Champine amended

the alleged onset date of her disability to July 19, 2012, and
at her hearing before the ALJ, she “testified . . . that she
[was] unable to work because of depression, anxiety, and
difficulty reading and doing arithmetic.”

Administrative

Transcript (hereinafter “Tr.”) 15.
In a Disability Determination Explanation (“DDE”) form that
was completed by the Social Security Administration (“SSA”) in
July 2013, Dr. Edward Hurley, a psychological consultant who
reviewed the evidence that had been provided to the SSA,
determined that “[n]o mental medically determinable impairments
[had been] established.”

Tr. 120, 130.

He continued:

No detailed psychological eval[uation] is on file to
provide an MDI [medically determinable impairment], no
SSA acceptable source diagnosis, claimant and
rep[resentative] have not responded to attempts to
obtain additional information or to state whether she
would attend a CE [consultative examination] i[f] we
reschedule (missed first CE before being transferred
from NH). There is insufficient evidence to establish
an MDI or to rate the severity of the claimant’s

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conditions due to failure to cooperate. 1
Tr. 120, 130.

In a second DDE form, completed about three

months after the first one, another psychological consultant,
Dr. Joseph Patalano, reached the same conclusions that Dr.
Hurley had reached.

Tr. 140.

In October of 2014, Champine was seen by Dr. Jeffrey Kay
for a consultative examination.

Tr. 700.

As a result of his

examination, Dr. Kay produced a Mental Health Evaluation Report
in which he gave diagnoses of: (1) attention deficit
hyperactivity disorder (“ADHD”), combined type; and (2) major
depressive disorder, recurrent, mild.

Tr. 703.

He did not,

however, diagnose any mental impairment relating to Champine’s
intellectual capacity.

He also provided the following opinions

on Champine’s then-current level of functioning:
Activities of Daily Living: . . . She is able to
take independent and consistent care of her 1-year old
daughter and most of her housework and shopping. She
is able to drive and maintain hygiene. She is not
able to pay bills independently.
Social Functioning: . . . Although I saw no signs of
irritability during the interview, I am inclined to
believe her report that she is very easily irritated
and becomes explosive. I do not believe that she is
currently capable of consistently interacting
appropriately with peers, supervisors or the public.

1

“A consultative examination is a physical or mental examination
or test purchased for [a claimant] at [the SSA’s] request.” 20
C.F.R. § 416.919.
3

Understanding and Remembering Instructions: . . .
She is able to understand and remember simple
instructions but her nursing home [employment]
experience suggests that she cannot consistently and
independently remember detailed instructions.
Concentration and Task Completion: .
very distracted by soft music playing
office. She is able to complete most
that she currently undertakes but she
maintain an appropriate pace.

. . She was
outside of my
of the tasks
is unable to

Reaction to Stress, Adaptation to Work or Work-like
Situations: . . . She is easily stressed and when
stressed she tends to cry, become very irritable and
may have a panic attack. She is able to maintain
attendance and a schedule but cannot consistently
accept supervision unless it is very patient and
respectful. She is able to make simple decisions.
Tr. 702-03.

Under a heading asking him to list the signs,

symptoms, and reasoning that supported his diagnoses, Dr. Kay
reported:
Her need[] for special education [while in high
school], her inability to do serial 7s or spell
[‘]world[’] backwards, her distraction by music
outside my office, her ability to focus on visual but
not on auditory stimuli, and her constant irritability
suggest ADHD rather than Bipolar Disorder. Manic
symptoms do not recur concomitantly. The abusive
relationship [several years ago, during her teens] has
also contributed to her irritability. The abuse and
the ADHD are probably responsible for her recurrent
depression and her panic attacks.
Tr. 703.
After conducting a hearing, the ALJ issued a decision that
includes the following relevant findings of fact and conclusions
of law:

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2. The claimant has the following medically
determinable impairment[s]: depression, acid peptic
disease and obesity (20 CFR 416.921 et seq.).
3. The claimant does not have an impairment or
combination of impairments that has significantly
limited (or is expected to significantly limit) the
ability to perform basic work-related activities for
12 consecutive months; therefore, the claimant does
not have a severe impairment or combination of
impairments (20 CFR 416.921 et seq.).
Tr. 14.

II. STANDARD OF REVIEW
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
. . .
42 U.S.C. § 405(g) (setting out the standard of review for
decisions on claims for disability insurance benefits); see also
42 U.S.C. § 1383(c)(3) (establishing § 405(g) as the standard of
review for SSI decisions).

However, the court “must uphold a

denial of social security . . . benefits unless ‘the [Acting
Commissioner] has committed a legal or factual error in
evaluating a particular claim.’”

Manso-Pizarro v. Sec’y of

Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per
5

curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.”

Alexandrou v. Sullivan, 764

F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)).

In turn, “[s]ubstantial

evidence is ‘more than [a] mere scintilla.

It means such

relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’”

Currier v. Sec’y of Health, Educ. &

Welfare, 612 F.2d 594, 597 (1st Cir. 1980) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)).

But, “[i]t is the

responsibility of the [Acting Commissioner] to determine issues
of credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Acting Commissioner], not the courts.”

Irlanda Ortiz v. Sec’y

of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per
curiam) (citations omitted).

Moreover, the court “must uphold

the [Acting Commissioner’s] conclusion, even if the record
arguably could justify a different conclusion, so long as it is
supported by substantial evidence.”

Tsarelka v. Sec’y of Health

& Human Servs., 842 F.2d 529, 535 (1st Cir. 1988) (per curiam).

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Finally, when determining whether a decision of the Acting
Commissioner is supported by substantial evidence, the court
must “review[] the evidence in the record as a whole.”

Irlanda

Ortiz, 955 F.2d at 769 (quoting Rodriguez v. Sec’y of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).

III. DISCUSSION
A.

The Legal Framework
To be eligible for supplemental security income, a person

must be aged, blind, or disabled, and must meet certain
requirements pertaining to income and assets.
1382(a).

See 42 U.S.C. §

The only question in this case is whether Champine was

disabled between April 10, 2013 and September 23, 2015.
To decide whether a claimant is disabled for the purpose of
determining eligibility for SSI benefits, an ALJ is required to
employ a five-step sequential evaluation process.

See 20 C.F.R.

§ 416.920.
The steps are: 1) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3) if the impairment meets the
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4) if the [claimant’s] “residual functional
capacity” [“RFC”] is such that he or she can still
perform past relevant work, then the application is
denied; 5) if the [claimant], given his or her
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residual functional capacity, education, work
experience, and age, is unable to do any other work,
the application is granted. 2
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20
C.F.R. § 416.920).
The claimant bears the burden of proving that she is
disabled.

See Bowen v. Yuckert, 482 U.S. 137, 146 (1987).

must do so by a preponderance of the evidence.

She

See Mandziej v.

Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982)).

Finally,

[i]n assessing a disability claim, the [Acting
Commissioner] considers objective and subjective
factors, including: (1) objective medical facts; (2)
[claimant]’s subjective claims of pain and disability
as supported by the testimony of the [claimant] or
other witness; and (3) the [claimant]’s educational
background, age, and work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of Health &
Human Servs., 797 F.2d 19, 23 (1st Cir. 1986); Goodermote v.
Sec’y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982)).
B.

Champine’s Claims
Champine claims that the ALJ erred by: (1) failing to

determine, at step 2 of the sequential evaluation process, that
her depression, ADHD, and purported learning disability were
severe mental impairments; and (2) failing to determine, at step

2

“Residual functional capacity” is a term of art that means “the
most [a claimant] can still do despite [her] limitations.” 20
C.F.R. § 416.945(a)(1).
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3, that her purported learning disability meets or equals the
severity of Listing 12.05C, which, at the time of her
application, was labeled “mental retardation.” 3

Because the ALJ

did not err at step 2, there is no need to consider Champine’s
step 3 argument.

In this section, the court begins by

describing the step 2 severity threshold, and then discusses the
ALJ’s application of that standard to claimant’s depression and
ADHD and to her purported learning disability.
1.

The Step 2 Threshold

In its most recent discussion of the step 2 threshold, the
court of appeals for this circuit explained:
An impairment is “severe” when it “significantly
limits [the claimant’s] physical or mental ability to
do basic work activities.” 20 C.F.R. § 404.1520(c).
“Under Social Security Ruling 85–28, a claim may be
denied at step 2 for lack of a severe impairment only
where medical evidence establishes only a slight
abnormality . . . which would have no more than a
minimal effect on an individual’s ability to work even
if the individual’s age, education, or work experience
were specifically considered . . . .” Barrientos v.
Secretary of Health and Human Services, 820 F.2d 1, 2
(1st Cir. 1987) (per curiam) (internal quotation marks
and citation omitted). Social Security Ruling 85–28
(Medical Impairments that Are Not Severe) clarifies
that the step two severity requirement is intended “to

3

The impairment once called “mental retardation” was later
renamed “intellectual disability,” and is now called
“intellectual disorder.” Change in Terminology: “Mental
Retardation” to “Intellectual Disability,” 78 Fed. Reg. 46,499
(Aug. 1, 2013).
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do no more than screen out groundless claims.”
McDonald v. Secretary of Health and Human Services,
795 F.2d 1118, 1124 (1st Cir. 1986).
Ramos v. Barnhart, 60 F. App’x 334, 335 (1st Cir. 2003) (per
curiam).

Put more simply, “the Step 2 severity requirement is .

. . a de minimis policy.”

McDonald, 795 F.2d at 1124.

Champine argues that the ALJ erred at step 2 by not finding
that she had severe mental impairments, and that this error was
not harmless because the ALJ did not consider these impairments
when determining her RFC at step 4.

To be sure, when an ALJ

errs at step two by failing to determine that an impairment is
severe, that error typically “is harmless as long as the ALJ
considered that impairment in assessing [the claimant’s]
residual functional capacity at step four.”

Gruhler v.

Berryhill, No. 17-cv-208-JD, 2017 WL 6512227, at *6 (D.N.H. Dec.
20, 2017) (citing Delia v. Comm’r of Soc. Sec., 433 Fed. Appx.
885, 887 (11th Cir. 2011); Fortin v. Colvin, No. 3:16-cv-30019KAR, 2017 WL 1217117, at *10 (D. Mass. March 31, 2017)).

But if

an ALJ finds that an impairment is not severe at step 2, there
is no requirement that the ALJ find another impairment to be
severe and continue on to conduct an RFC assessment.

See, e.g.,

Baron v. Berryhill, No. 16-cv-308-JL, 2017 WL 3600402, at *7-10
(D.N.H. Aug. 21, 2017) (affirming denial of benefits where ALJ
did not move beyond step 2).

If the ALJ finds that the claimant

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does not have any severe impairments at step 2, and that finding
is supported by substantial evidence, the analysis stops and the
claim is denied.

Accordingly, claimant’s initial step 2

argument is meritless.
2.

Depression and ADHD

In an argument that appears to be directed to the ALJ’s
assessment of the severity of her depression and ADHD, Champine
contends that because the ALJ based his step 2 determination on
the opinions of Drs. Hurley and Patalano, who indicated that
there was “insufficient evidence to establish an MDI or to rate
the severity of [her] conditions,” Tr. 120, 130, 140, the ALJ’s
decision was not supported by substantial evidence, and he
committed reversible error by failing to adopt Dr. Kay’s
uncontroverted opinion that her depression and ADHD were severe
impairments.

According to Champine:

The ALJ’s dismissal of Dr. Kay’s assessment was
improper. The ALJ was not at liberty to ignore
medical evidence or substitute his own views for
uncontroverted medical opinion.
Cl.’s Mem. of Law (doc. no. 8-1) 10 (citing

Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999); Rose v. Shalala, 34 F.3d 13, 18
(1st Cir. 1994) (criticizing ALJ for finding that claimant
merely had “possible” chronic fatigue syndrome (“CFS”), when two
doctors diagnosed CFS, no doctor disclaimed that diagnosis, and
all other doctors endorsed “symptoms fully consistent with
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CFS”); Nieves v. Sec’y of Health & Human Servs., 775 F.2d 12, 14
(1st Cir. 1985); Suarez v. Sec’y of Health & Human Servs., 740
F.2d 1, 1 (1st Cir. 1984) (criticizing ALJ for ignoring
uncontroverted medical reports establishing that claimant’s
impairment met a listing)).

The court does not agree.

First of all, the ALJ’s dismissal of Dr. Kay’s assessment
was not improper.

The ALJ explained that he was not persuaded

by Dr. Kay’s conclusions because they were: (1) based upon a
one-time evaluation; (2) inconsistent with Dr. Kay’s own
observations; and (3) based primarily upon Champine’s selfreports.

Tr. 17.

Those reasons are supported by the record.

Under the applicable regulations, an ALJ should take into
account the frequency of examination.
416.927(c)(2)(i).
only once.

See 20 C.F.R. §

It is undisputed that Champine saw Dr. Kay

Doc. 11 at 5-6.

That is an appropriate and properly

supported reason for giving diminished weight to Dr. Kay’s
opinions.
The applicable regulations also direct ALJs to consider the
supportability of the medical opinions they evaluate.
C.F.R. § 416.927(c)(3).

See 20

Here, while Dr. Kay characterized

Champine as having difficulties in the realm of social
functioning, his report includes: (1) a general observation that
she was friendly and cooperative; (2) mental status examination

12

findings of friendly and cooperative behavior, mildly depressed
and anxious mood, and appropriate affect; and (3) no clinical
findings supporting a determination that she was limited in the
realm of social functioning.

Tr. 17, 700-702.

Thus, the ALJ

permissibly discounted Dr. Kay’s opinion for being poorly
supported.
Finally, it is well established that “[m]edical opinions
based on the claimant’s subjective reports, rather than
objective medical findings, may be entitled to less weight.”
Natsis v. Berryhill, No. 16-cv-063-LM, 2017 WL 1032258, at *3
(D.N.H. Mar. 16, 2017) (citing Rodriguez Pagan v. Sec’y of
Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987)).

Here,

the ALJ permissibly discounted Dr. Kay’s opinion because it was
based upon Champine’s subjective reports, which Dr. Kay
expressly credited over his own observations and clinical
findings.
In addition to claiming that the ALJ improperly discounted
Dr. Kay’s assessment, Champine intimates that the ALJ either
ignored medical evidence or substituted his own views for
uncontroverted medical opinions.

Again, the court does not

agree.
With regard to ignoring medical evidence, Champine does not
say what medical evidence the ALJ ignored.

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With regard to

substituting his own views for uncontroverted medical opinions,
the court notes that this is not a case such as Nguyen, 172 F.3d
at 35, in which the ALJ made an RFC assessment that was
supported by nothing other than his own erroneous rejection of a
treating physician’s opinion.

Here, the ALJ did not make an

affirmative factual finding concerning Champine’s RFC; he
determined that, because Dr. Kay’s assessment was not
persuasive, Champine had failed to carry her burden of proving
that her depression or ADHD were severe impairments.

That

determination, in turn, is supported by the record, for reasons
the court has already explained.
In sum, Champine has given the court no reason to disturb
the ALJ’s determination that her depression and ADHD were not
severe impairments.
3.

Learning Disability

Champine also claims that the ALJ erred by failing to
properly consider the results of her July 2015 IQ testing.
Specifically, she claims that based upon her scores, the ALJ
should have found that she has a medically determinable learning
disability that qualifies as a severe impairment.
4.

Doc. 8-1 at

This argument appears to rest upon the regulatory definition

of mental retardation in effect at the time of Champine’s
application for SSI, under which that impairment consisted of

14

having “[a] valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of function.”
20 C.F.R. Pt. 404, Subpt. P., App. 1, Listing 12.05C (2013 ed.).
While she does not say so directly, Champine appears to contend
that having an IQ that satisfies half of the definition of
mental retardation is a severe impairment.
If this were a case such as Nieves, 775 F.2d at 14, in
which the SSA decision maker discredited the only IQ scores in
the record, and did so improperly, then perhaps Champine might
have a point.

But here, rather than substituting his own

opinions of Champine’s intelligence for uncontroverted medical
evidence, the ALJ provided a thoughtful consideration of
Champine’s 2015 IQ test scores in comparison to her 2009 scores,
and in light of the latter, he chose to discount the former.
Tr. 17.

Because it falls to the ALJ to resolve conflicts in the

evidence, see Irlanda Ortiz, 955 F.2d at 769, and because
Champine’s 2009 IQ scores do not establish medically
determinable mental retardation, the court cannot fault the ALJ
for declining to determine that the 2015 IQ testing establishes
medically determinable mental retardation.
For her part, Champine argues that the ALJ was obligated to
credit the 2015 IQ scores over the 2009 scores because “Part A

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of the listings, which applies to adults, mandates that the
lowest I.Q. score is to be used in determining whether an adult
claimant meets the listing.”

Cl.’s Mem. of Law (doc. no. 8-1) 5

(quoting Nieves, 775 F.2d at 12; citing Diaz v. Sec’y of Health
& Human Servs., 746 F.2d 921, 923 (1st Cir. 1984)).

The

regulation on which Champine relies provides that
[i]n cases where more than one IQ is customarily
derived from the test administered, e.g., where
verbal, performance, and full scale IQs are provided
in the Wechsler series, [the SSA] use[s] the lowest of
these in conjunction with [Listing] 12.05.
20 C.F.R. Part 404, Subpt. P, App. 1, Listing 12.00(D)(6)(c)
(2013 ed.).

The foregoing regulation does not require the SSA

to credit the 2015 scores over the 2009 scores; it requires the
SSA to use the verbal IQ of 75 as the determinative score from
the 2009 testing and the verbal IQ of 70 as the determinative
score from the 2015 testing.

Thus, Champine’s invocation of the

lowest-score rule does not entitle her to a determination that
the ALJ erred by declining to determine that she had a learning
disability that qualifies as a severe impairment.

IV. CONCLUSION
Because the ALJ has committed neither a legal nor a factual
error in evaluating Champine’s claim, see Manso-Pizarro, 76 F.3d
at 16, her Motion for Order Reversing Decision of Commissioner,

16

doc. no. 8, is denied, and the Acting Commissioner’s Motion for
Order Affirming Decision of Commissioner, doc. no. 10, is
granted.

The clerk of the court shall enter judgment in

accordance with this Memorandum and Order and close the case.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge

January 10, 2018
Cc:

Terry L. Ollila, Esq.
D. Lance Tillinghast, Esq.
Laurie Smith Young, Esq.

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