Newman v. US Social Security Administration, Commissioner

Filing 10

///ORDER denying 6 Motion to Reverse Decision of Commissioner; granting 8 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

David A. Newman
v.

Civil No. 17-cv-455-LM
Opinion No. 2018 DNH 097

Nancy A. Berryhill, Acting
Commissioner of Social Security
O R D E R
David A. Newman 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
disability insurance benefits.

Newman moves to reverse the

Acting Commissioner’s decision, contending that the decision of
the Administrative Law Judge (“ALJ”)—specifically, the residual
functional capacity assessment—is not supported by substantial
evidence.

The Acting Commissioner moves to affirm.

For the

following reasons, the Acting Commissioner’s decision 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
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
evidence.

42 U.S.C. § 405(g); see also Fischer v. Colvin, 831

F.3d 31, 34 (1st Cir. 2016).
a scintilla.

“Substantial evidence is more than

It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”
Astralis Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev.,
620 F.3d 62, 66 (1st Cir. 2010).
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis.

20 C.F.R.

§ 404.1520(a)(4). The claimant “has the burden of production and
proof at the first four steps of the process.”
Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).

Freeman v.
The first three

steps are (1) determining whether the claimant is engaged in
substantial gainful activity; (2) determining whether he has a
severe impairment; and (3) determining whether the impairment
meets or equals a listed impairment.

20 C.F.R.

§ 404.1520(a)(4)(i)-(iii).
At the fourth step of the sequential analysis, the ALJ
assesses the claimant’s residual functional capacity (“RFC”),
which is a determination of the most a person can do in a work
setting despite his limitations caused by impairments, id.
§ 404.1545(a)(1), and his past relevant work, id.

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§ 404.1520(a)(4)(iv)).

If the claimant can perform his past

relevant work, the ALJ will find that the claimant is not
disabled.

See id.

If the claimant cannot perform his past

relevant work, the ALJ proceeds to Step Five, in which the ALJ
has the burden of showing that jobs exist in the economy which
the claimant can do in light of the RFC assessment.

See id.

§ 404.1520(a)(4)(v).
BACKGROUND1
On August 17, 2016, Newman applied for disability insurance
benefits, claiming a disability that began on February 21, 2015.2
He was 54 years old at the time of his application, had a high
school education, and had previously worked as a photocopy
machine operator and security officer.

Newman alleged that he

was disabled as a result of right upper extremity dysfunction,
chronic back pain following fusion surgery, right lower
extremity arthritis, depression, post-traumatic stress disorder
(“PTSD”), panic disorder, anxiety disorder, and bilateral upper
extremity tremors.

Newman’s application was initially denied,

and he sought review before an ALJ.

A detailed statement of the facts can be found in the
parties’ Joint Statement of Material Facts (doc. no. 9).
1

This is Newman’s second application for such benefits.
ALJ previously denied his first application for disability
insurance benefits in a decision dated February 20, 2015.
2

3

An

I.

Hearing Evidence3
On May 16, 2017, a hearing before an ALJ was held.

Newman

was represented by an attorney and testified at the hearing.
Jack Bopp, a vocational expert, appeared and testified by phone.
Regarding functional limitations, there is evidence in the
record to support the position that Newman’s anxiety and
depression impeded his abilities to concentrate, interact with
others socially, and be out in public.

For example, in June

2016, Newman reported to Tara Fraser, Physician’s Assistant and
Newman’s primary care provider, that he was anxious in crowds
and afraid to leave his house.

Newman reported that, as a

result of his anxiety, crowds overwhelmed him, and he limited
the extent to which he went out in public.

At the hearing,

Newman also testified that on one occasion, when he went to a
concert and forgot to take his anxiety medication, he had a
panic attack as he entered the venue.
This view of Newman’s anxiety as functionally debilitating
is supported by the consultative psychological examination
performed by Robert Prescott, Ph. D, in November 2016.

Dr.

Prescott examined Newman, spoke with him about his mental
health, and reviewed some medical records.

Dr. Prescott

Newman does not challenge the ALJ’s RFC assessment as it
relates to his physical capabilities, so the court limits its
recitation of the relevant facts accordingly.
3

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concluded that Newman could not be expected to maintain
concentration for extended periods, manage typical levels of
stress “found in settings outside the home,” or “interact
effectively . . . with others on the job.”

Admin. Rec. at 480.

On the other hand, there is evidence in the record showing
that Newman could effectively control his anxiety through
medication.

Newman reported as much to Fraser, stating that he

could attend concerts, visit museums, and do “more day to day
activities” with the help of his anxiety medication.
Rec. at 395.

Admin.

At the hearing, Newman testified that he took the

medication before leaving his house, going to the grocery store,
or going to Walmart.

When he attended a concert, however, he

would need to double the dosage.
State agency psychologist Patricia Salt, Ph. D., provided
an assessment consistent with this latter set of evidence.

She

reviewed Dr. Prescott’s opinion and the records from Newman’s
primary care provider.

Dr. Salt concluded that Newman could

maintain attention and concentrate for extended periods of time,
could “get along adequately with those he interacts with,” and
could appropriately respond to criticism, though she also noted
that Newman may be “distracted by the presence of others in his
workspace . . . if there are groups of people around him.”
Admin. Rec. at 87.

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II.

ALJ’s Decision
The ALJ issued his decision on June 7, 2017.

As is

relevant here, the ALJ found that Newman had two severe mental
impairments, depression and anxiety, but that they did not meet
any listed impairments.

Turning to Newman’s RFC, the ALJ

concluded that Newman could perform a limited range of light
work, which included nonexertional limitations that Newman could
only perform “simple, routine tasks,” and have no more than
“frequent interaction with coworkers and the general public.”
Admin. Rec. at 27; see also Dussault v. Colvin, No. 15-cv-441JL, 2017 WL 633352, at *3 (D.N.H. Feb. 16, 2017) (noting that
“frequent” activity “occurs between one-third and two-thirds of
the time”).

The ALJ rejected the claim that Newman’s mental

impairments significantly undermined his ability to perform work
or be outside of the home.

The ALJ relied on the evidence

showing that, with medication, Newman was able to manage his
anxiety while in public.

The ALJ gave “great weight” to Dr.

Salt’s opinion in determining Newman’s RFC, finding, among other
things, that it was consistent with Newman’s “longitudinal
medical record.”

Admin. Rec. at 31.

Based on this assessment and the testimony of the
vocational expert, the ALJ determined that Newman could perform
his past relevant work as a photocopy machine operator.

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Therefore, the ALJ found that Newman was not disabled within the
meaning of the Social Security Act.

The Appeals Council denied

Newman’s request for review, making the ALJ’s decision the
Acting Commissioner’s final decision.
DISCUSSION
Newman argues that the ALJ’s RFC assessment, as it pertains
to his mental impairments, is not supported by substantial
evidence.

He raises the following errors: (1) the ALJ’s finding

that medication alleviated Newman’s anxiety is inconsistent with
his hearing testimony; (2) the ALJ incorrectly stated that
Newman did not attend counseling; (3) the ALJ erred in relying
on Dr. Salt’s opinion, because Dr. Salt failed to review
Newman’s counseling notes;4 (4) the ALJ’s reason for rejecting
Dr. Prescott’s opinion is erroneous; and (5) the ALJ failed to
note in the decision that Newman “broke down in tears due to
stress” after the administrative hearing, doc. no. 6-1 at 4.
The court discusses each argument in turn.
I.

Anxiety Medication
The ALJ found that the symptoms caused by Newman’s anxiety,

including his abilities to interact with others and be out in

In his brief, Newman makes this argument with respect to Dr.
Trice, but context makes clear that he is actually referring to
Dr. Salt. See doc. no. 6-1 at 3.
4

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public, could be largely controlled through medication.

Newman

argues that this finding is inconsistent with his hearing
testimony that “he frequently had to double up on his anxiety
medication dosage and that it had a sedating effect and that on
occasion when he forgot his prescription he would self-medicate
with alcohol.”

Id.

The court is not persuaded.

As an initial matter, Newman’s

characterization of his testimony is not consistent with the
transcript.

Rather, Newman testified that he doubled his dosage

of medication when he attended concerts, which he did
“occasionally.”

Admin. Rec. at 65.

And he stated that at one

concert, he forgot his medication and had a glass of scotch to
calm down.

Id. at 65-66.

These isolated incidents are not

materially inconsistent with the medical records, which indicate
that through medication, Newman was generally able to control
his anxiety while in public.
Even if they were inconsistent, it was for the ALJ to
resolve such conflicts.

See Proulx v. Astrue, No. 11-cv-496-PB,

2012 WL 4829303, at *4 (D.N.H. Oct. 11, 2012) (“It is the role
of the ALJ, not the court, to resolve conflicts in the
evidence.”).

Given Newman’s own reports to Fraser about the

efficacy of his medication, as well as his acknowledged ability

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to engage in a variety of activities in public, the ALJ’s
finding has substantial support in the record.
II.

See id.

Misstatement Regarding Counseling
Newman next contends, and the Acting Commissioner concedes,

that the ALJ incorrectly stated in the decision that Newman did
not receive counseling for his mental impairments.

In fact, as

both medical records and Newman’s testimony at the hearing
establish, Newman received behavioral-health counseling from a
social worker intermittently in 2014 and 2016.
A brief explanation of this counseling will be helpful to
provide context.

Between March and April of 2014, and again

between September and October of 2016, Newman attended
counseling sessions for his anxiety, depression, and alleged
PTSD.

The records documenting these sessions shed more light on

the specific triggering events for Newman’s anxiety and PTSD,
the severity of his anxiety and depression, and the ways in
which, absent medication, these mental impairments affect and
impair his abilities to interact with others and be out in
public.
The question is whether the ALJ’s error justifies remand.
The court concludes that it does not.

A mischaracterization or

misstatement of the evidence does not necessarily compel remand.
See, e.g., Musto v. Halter, 135 F. Supp. 2d 220, 228 (D. Mass.
9

2001) (collecting cases for proposition that “minor
discrepancies” between record and facts as characterized by ALJ
will not always warrant remand).

Courts examine the effect of

the error and determine whether the ALJ’s decision remains
supported by substantial evidence.

See, e.g., Perez Torres v.

Sec’y of Health & Human Servs., 890 F.2d 1251, 1255 (1st Cir.
1989); Floyd v. Berryhill, No. 15-cv-456-PB, 2017 WL 2670732, at
*5 (D.N.H. June 21, 2017); Musto, 135 F. Supp. 2d at 228.
Similarly, an ALJ’s failure to address certain evidence will not
“undermine the validity of her conclusion” where “that
conclusion was supported by citations to substantial medical
evidence in the record and the unaddressed evidence was either
cumulative of the evidence discussed by the ALJ or otherwise
failed to support the claimant's position.”

Lord v. Apfel, 114

F. Supp. 2d 3, 13 (D.N.H. 2000).
Here, the court concludes that the ALJ’s error does not
justify remand.

Indeed, besides identifying the error, Newman

does not explain how the counseling notes undermine the ALJ’s
decision.

The counseling notes further substantiate the fact

that Newman has significant anxiety, and they reveal the extent
to which his mental impairments can impact his functioning.

But

such information is merely cumulative of the other evidence that

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established the nature and extent of Newman’s mental impairments
and the symptoms resulting therefrom.
More to the point, the court fails to see how such
information casts doubt on the ALJ’s determination.

The ALJ

based his RFC assessment not on a finding that Newman did not
have severe mental impairments, but on the finding that any
functional limitations resulting from such impairments were
adequately controlled by medication.

The counseling notes do

not concern the efficacy of Newman’s medication and therefore do
not undermine the basis for the ALJ’s conclusion.
on that basis is not warranted.

Thus, remand

See Ward v. Comm’r of Social

Sec., 211 F.3d 652, 656 (1st Cir. 2000) (“[A] remand is not
essential if it will amount to no more than an empty
exercise.”).
III. Dr. Salt’s Opinion
Newman next argues that the ALJ erred when he afforded
greatest weight to the opinion of Dr. Salt, because Dr. Salt did
not review the above-described counseling notes.

While Newman

may be correct, the court does not consider it reversible error.
“[T]he 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.”
Brown v. Colvin, No. 14-cv-256-JL, 2015 WL 4416971, at *3
11

(D.N.H. July 17, 2015).

Such reliance may nevertheless be

reasonable if the unconsidered evidence does not establish
greater limitations, or if it is consistent with the medical
opinion.

See id. (discussing in context of opinion that failed

to account for later medical records).
Here, Dr. Salt reviewed the medical records in which Newman
reported that his anxiety medication alleviated his symptoms,
and she concluded that Newman’s mental impairments did not
significantly limit his ability to work, interact with others,
or be in public.

The counseling notes—which, as noted, do not

concern the efficacy Newman’s medication—are not inconsistent
with Dr. Salt’s reasoning or opinion.
More generally, it is for the ALJ to resolve conflicts
between conflicting medical opinions, and in this case the ALJ’s
resolution finds “substantial support in the record.”

Larocque

v. Colvin, No. 14-cv-230-JL, 2015 WL 2342868, at *2 (D.N.H. May
14, 2015).

The ALJ relied on Dr. Salt’s opinion not only

because it was consistent with the longitudinal medical record,
but because of her expertise as a licensed psychologist and her
knowledge of the disability program and its requirements.
were proper factors to consider.

These

See 20 C.F.R. §

404.1527(c)(4)-(6) (stating that ALJ may give medical opinion
more weight if it is made by a specialist, if it is consistent

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with the record as a whole, or if the medical source understands
“our disability programs and their evidentiary requirements”).
Accordingly, Newman’s argument does not warrant reversal or
remand.
IV.

Dr. Prescott’s Opinion
Newman contends that the ALJ erred when he give little

weight to Dr. Prescott’s opinions that Newman could not
effectively work outside the home or interact with others as a
result of his mental impairments.

The ALJ discounted these

opinions because “treating provider Ms. Fraser noted controlled
anxiety when the claimant took medication for anxiety as
prescribed.”

Admin. Rec. at 31.

Newman considers the ALJ’s

reasoning erroneous because, elsewhere in his decision, the ALJ
rejected Fraser’s RFC opinions on the ground that Fraser was
“not an acceptable medical source.”

Id.

The court disagrees.

In the first place, the ALJ was correct in stating that
Fraser, as a Physician’s Assistant, was not an acceptable
medical source.

See Smith v. Berryhill, No. 16-cv-567-JHR, 2018

WL 1474528, at *5 (D. Me. Mar. 26, 2018).

But the ALJ did not

then rely on a “medical opinion” of Fraser to reject Dr.
Prescott’s opinion.

Rather, the ALJ rejected Dr. Prescott’s

opinions because they were inconsistent with Newman’s own
reports to Fraser, which Fraser merely recorded in her treatment
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notes.

See 20 C.F.R. § 404.1527(a)(1) (defining “medical

opinions” as “statements from acceptable medical sources that
reflect judgments about the nature and severity of [the]
impairment(s)” (emphasis added)).

Thus, there was no

inconsistency between the ALJ’s observation that Fraser was not
an acceptable medical source and his reliance on Fraser’s
treatment notes to discount some of Dr. Prescott’s opinions.
V.

Post-Hearing Conduct
Newman’s final argument is that the ALJ failed to note in

his decision that, at the close of the hearing, Newman “broke
down in tears due to the stress of testifying.”
4.

Doc. no. 6-1 at

Newman has not shown that he is entitled to relief on this

basis.

As the Acting Commissioner notes, there does not appear

to be any evidence in the record about this incident.

Thus,

absent further developed argument from Newman, the court
discerns no reason why it should consider this alleged incident,
or indeed, why the ALJ should have considered it.

See

Evangelista v. Sec’y of Health & Human Servs., 826 F.2d 136, 143
(1st Cir. 1987) (“In the ordinary course, the district courts
review social security appeals on the administrative record,
without taking new evidence.”); Aldea v. Astrue, 828 F. Supp. 2d
396, 401 (D. Mass. 2011) (“It is well-settled that an
administrative law judge is not permitted to rely on evidence
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outside the record.”); see also Nelson v. Apfel, 131 F.3d 1228,
1236-37 (7th Cir. 1997) (concluding that, in reaching disability
determination, ALJ improperly considered observations that he
made of claimant at hearing conducted immediately after
claimant’s hearing).
In sum, none of the grounds raised by Newman warrants
reversal or remand for further proceedings.
CONCLUSION
For the foregoing reasons, the Acting Commissioner's motion
to affirm (doc. no. 8) is granted, and Newman’s motion to
reverse (doc. no. 6) is denied.

The clerk of the court shall

enter judgment in accordance with this order and close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
May 15, 2018
cc:

Counsel of Record

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