deOliveira v. US Social Security Administration, Acting Commissioner

Filing 11

///ORDER granting 9 Motion to Affirm Decision of Commissioner and denying 8 Motion to Reverse Decision of Commissioner. The clerk of the court shall enter judgment in favor of the Acting Commissioner and close the case. So Ordered by Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Angela Deoliveira1
v.

Civil No. 17-cv-671-JL
Opinion No. 2019 DNH 001

Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration
O R D E R
Angela Deoliveira moves to reverse the decision of the
Acting Commissioner of the Social Security Administration
(“SSA”) to deny her applications for Social Security disability
insurance benefits (“DIB”) under Title II of the Social Security
Act, 42 U.S.C. § 423, and for supplemental security income
(“SSI”) under Title XVI, 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. Standard of Review
The applicable standard of review provides, in pertinent
part:

Claimant’s last name is spelled several different ways in
the record. The court uses the spelling that appears in her
motion to reverse the Acting Commissioner’s decision.
1

1

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 standard of review for decisions
on claims for DIB); see also 42 U.S.C. § 1383(c)(3) (applying
§ 405(g) to SSI decisions).

However, the court “must uphold a

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

Manso-Pizarro v. Sec’y of HHS,

76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v.
Hudson, 490 U.S. 877, 885 (1989)).
As for the standard of review that applies when an
applicant claims that an SSA adjudicator made a factual error,
[s]ubstantial-evidence review is more deferential than
it might sound to the lay ear: though certainly “more
than a scintilla” of evidence is required to meet the
benchmark, a preponderance of evidence is not. Bath
Iron Works Corp. v. U.S. Dep’t of Labor, 336 F.3d 51,
56 (1st Cir. 2003) (internal quotation marks omitted).
Rather, “[a court] must uphold the [Acting
Commissioner’s] findings . . . if a reasonable mind,
reviewing the evidence in the record as a whole, could
accept it as adequate to support [her] conclusion.”
Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d
218, 222 (1st Cir. 1981) (per curiam).
Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

2

In addition, “‘issues of credibility and the drawing of
permissible inference from evidentiary facts are the prime
responsibility of the [Acting Commissioner],’ and ‘the
resolution of conflicts in the evidence and the determination of
the ultimate question of disability is for [her], not for the
doctors or for the courts.’”
at 222).

Id. (quoting Rodriguez, 647 F.2d

Thus, 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 HHS, 842 F.2d 529,

535 (1st Cir. 1988) (per curiam).
II. Background
The parties have submitted a Joint Statement of Material
Facts.

That statement2 is part of the court’s record and is

summarized here, not repeated in full.
Since April of 2014, Deoliveira’s medical history has
included at least five trips to emergency rooms or urgent care,
and she has received treatment from approximately a dozen
different medical professionals.
One of Deoliveira’s trips to the emergency room took place
in October of 2016, about 10 days after she was involved in a
motor-vehicle accident in which she suffered a “whiplash-type

2

Document no. 10.
3

injury and head injury posteriorly.”
(hereinafter “Tr.”) 852.

Administrative Transcript

She presented at the emergency room

with “a severe diffuse headache,” id., which represented an
increase in severity over the moderate headaches she had been
having over the 10 days after her accident.

The medical note

generated by Deoliveira’s October 2016 emergency-room visit also
states:
Patient does give a history of prior CVA in 2008 . . .
and final diagnosis was left ICA dissection with
resultant complete occlusion and treated with
anticoagulation x1 year, followed by daily aspirin.
Id.

CVA is an “[a]bbreviation for cerebrovascular accident”

Stedman’s Medical Dictionary 474 (28th ed. 2006), which is “an
imprecise term for cerebral stroke,” id. at 10.
On November 9, 2016, Deoliveira saw a neurologist, Dr.
Sachin Dave, who noted both her stroke and her recent motorvehicle accident.
following:

His examination findings include the

“CORTICAL FUNCTIONS:

alert and oriented X 3,

comprehension and language intact, speech fluent.”

Tr. 1010.

Based upon his examination, he gave diagnoses of headache,
cervicalgia, and concussion syndrome, and he offered this
explanation:
“She . . . had [a motor-vehicle accident] last month with
possible head injury or concussion and whiplash type neck
injury.”

Id.

4

In addition to the diagnoses in Dr. Dave’s note, Deoliveira
has received diagnoses of bilateral knee pain, osteoarthritis in
both knees, fibromyalgia, inflammatory arthritis with a possible
autoimmune disorder, a muscle-tension headache, acute posttraumatic headache, an acute cervical sprain, low-back pain,
left ear tinnitus,3 major depression, anxiety, and insomnia.

For

her physical impairments, she has been treated with ice,
medication,4 and some physical therapy.

On occasion, however,

she has declined to engage in physical therapy, and has declined
injections for the pain associated with her physical
impairments.

For her mental impairments, she has been treated

primarily with medication,5 although therapy has also been
prescribed.
In September of 2015, Deoliveira applied for DIB and SSI,
claiming that she became disabled on April 4, 2014, as a result
of fibromyalgia, lower-back pain, pain in her upper neck and
head, a blood clot in her head resulting from a mild stroke,

Tinnitus is “[p]erception of a sound in the absence of an
environmental acoustic stimulus.” Stedman’s, supra, at 1992.
3

She has been given prescriptions for Valium, ibuprofen,
tramadol, Vicodin, Percocet, Voltaren gel, an unnamed antidepressant, cyclobenzaprine, Soma, disease-modifying antirheumatic drugs, oxycodone, morphine, Zofran, and Toradol.
4

She has been given prescriptions for diazepam, Ambien,
Cymbalta, Remeron, Brintellix, Viibryd, Effexor, and Klonopin.
5

5

continuous pain, headaches, stress and anxiety, depression, and
trouble walking.

She later revised the alleged onset date of

her disability to July 18, 2015, which coincides with a visit to
urgent care for knee pain.
The record includes eight statements by medical or other
professionals that discuss Deoliveira’s physical or mental
impairments, each of which was evaluated by the ALJ, and each of
which is at issue in claimant’s appeal.

To avoid unnecessary

redundancy, the court will defer its description of those
statements to the discussion section of this order.
After the SSA denied Deoliveira’s applications for DIB and
SSI, she received a hearing before an ALJ.

At the hearing, the

ALJ heard testimony from a vocational expert (“VE”), to whom she
posed several hypothetical questions.

First, the ALJ asked the

VE
to consider an individual of the claimant’s age,
education, and work history [who] is limited to work
at a light exertional level. No climbing of ladders,
ropes, or scaffolds. No overhead lifting. The work
should not include an assembly line belt pace; no
concentrated exposure to potential hazards – moving
machinery, unprotected heights, things like that.
Tr. 103.

The VE testified that a person with those limitations

could not perform Deoliveira’s past work as a limousine/taxi
driver, but could perform her past work as a personal attendant.
He further testified that a person with those limitations could

6

perform the unskilled jobs of school-bus monitor, fruit
distributor, and counter clerk.
The ALJ asked a second hypothetical question that included
this additional limitation:
Standing and walking about half time, four hours
of an eight-hour day, and the individual has the
option or opportunity, because of the kind of job, to
change positions, stretch, that sort of thing, two to
three times an hour for a minute or 2.
Tr. 104-05.

According to the VE, that additional limitation

would preclude a person from performing Deoliveira’s past work
as a personal attendant, but would allow her to perform the
unskilled jobs of information clerk, ticket taker, and parkinglot cashier, “as long as the individual would be able to
maintain on-task behavior for 90 percent of the work day,” Tr.
106.
After Deoliveira’s hearing, the ALJ issued a decision in
which she found that claimant had these severe impairments:
degenerative joint disease of the cervical spine;
residual effects of [a] remote mild cerebrovascular
accident; fibromyalgia; depression; insomnia; and
anxiety.
Tr. 21.

Then, after finding that none of Deoliveira’s

impairments, either alone or in combination, met or medically
equaled the severity of any of the impairments on the SSA’s list
of impairments that are per se disabling, the ALJ provided this
assessment of Deoliveira’s RFC:

7

[T]he claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) except she is limited to standing and
walking four hours out of an eight-hour day; the work
must be able to be performed seated or standing at the
option of the employee; she cannot climb ladders,
ropes, or scaffolds; and she cannot perform any
overhead lifting. Work should be unskilled and not
include an assembly line belt pace; and she should
have no concentrated exposure to potential hazards
(such as moving machinery, unprotected heights, etc.).
Tr. 25.

In the end, the ALJ determined that Deoliveira was

unable to perform her past work, but could perform the jobs of
school-bus monitor, fruit distributor, information clerk, ticket
taker, and parking-lot cashier.

Consequently, the ALJ found

that Deoliveira was not under a disability from July 18, 2015,
through the date of her decision, which was February 27, 2017.
III. Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must:

(1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under
a disability.

42 U.S.C. § 423(a)(1)(A)-(D).

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.

42 U.S.C. § 1382(a).

The only question in

this case is whether the ALJ correctly determined that

8

Deoliveira was not under a disability from July 18, 2015,
through February 27, 2017.
To decide whether a claimant is disabled for the purpose of
determining eligibility for either DIB or SSI, an ALJ is
required to employ a five-step sequential evaluation process.
See 20 C.F.R. §§ 404.1520 (DIB) & 416.920 (SSI).
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” 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 residual
functional capacity, education, work experience, and
age, is unable to do any other work, the application
is granted.
Purdy, 887 F.3d at 10 (quoting Seavey v. Barnhart, 276 F.3d 1, 5
(1st Cir. 2001); citing 20 C.F.R. § 416.920).
At the first four steps in the sequential evaluation
process, the claimant bears both the burden of production and
the burden of proof.

See Purdy, 887 F.3d at 9 (citing Freeman

v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001)); see also Bowen
v. Yuckert, 482 U.S. 137, 146 (1987).

She must prove she is

disabled by a preponderance of the evidence.

9

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)).6

Finally,

[i]n assessing a disability claim, the [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 HHS, 797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690
F.2d 5, 6 (1st Cir. 1982)).
B.

Deoliveira’s Claims

Deoliveira claims that the ALJ erroneously determined her
RFC by improperly:

(1) evaluating her testimony about her

symptoms; and (2) weighing the medical-opinion evidence.
Neither claim has merit.
1.

The court considers each in turn.

Claimant’s Statements about her Symptoms

In her decision, the ALJ gave only partial weight to
Deoliveira’s statements about her symptoms, principally pain and
memory problems.

She explained that “claimant’s statements

concerning the intensity, persistence and limiting effects of
[her] symptoms are not entirely consistent with the medical

At step five, the burden of proof shifts to the Acting
Commissioner, see Seavey, 276 F.3d at 5 (citing Arocho v. Sec’y
of HHS, 670 F.2d 374, 375 (1st Cir. 1982)), but the Acting
Commissioner’s step-five determination is not at issue here, so
there is no need to describe the mechanics of step five.
6

10

evidence and other evidence in the record.”
to claimant, the ALJ erred by:

Tr. 28.

According

(1) assessing her credibility,

rather than evaluating her statements about her symptoms, in
violation of the guidance provided by Social Security Ruling
(“SSR”) 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016); and (2)
improperly relying upon her non-compliance with treatment and a
lack of substantiating objective medical evidence as reasons for
discounting her statements.

The court begins by outlining the

applicable legal principles and then turns to Deoliveira’s two
claims of error.
Legal principles.

In 2016, the SSA promulgated SSR 16-3p,

which is titled “Evaluation of Symptoms in Disability Claims,”
and which “provide[d] guidance about how [the SSA] evaluate[s]
statements regarding the intensity, persistence, and limiting
effects of symptoms in disability claims under Titles II and XVI
of the Social Security Act.”

2016 WL 1119029, at *1.

Under the

heading “Purpose,” the SSA explained:
[W]e are eliminating the use of the term “credibility”
from our sub-regulatory policy, as our regulations do
not use this term. In doing so, we clarify that
subjective symptom evaluation is not an examination of
an individual’s character.
Id. at *1.
SSR 16-3p also outlines a two-step evaluation process in
which a decisionmaker first determines whether a claimant has a
medically determinable impairment that could reasonably be
11

expected to produce her alleged symptoms.

Then, if a claimant

has such an impairment, the decisionmaker must evaluate the
intensity and persistence of those symptoms, and determine the
extent to which they limit the claimant’s ability to perform
work-related activities.

In making that evaluation, a

decisionmaker should
examine the entire case record, including the
objective medical evidence; an individual’s statements
about the intensity, persistence, and limiting effects
of symptoms; statements and other information provided
by medical sources and other persons; and any other
relevant evidence in the individual’s case record.
SSR 16-3p, 2016 WL 1119029, at *4.

However, an “ALJ cannot

reject the veracity of the claimant’s own statements . . . based
solely on the conclusion that they are unsubstantiated by the
objective medical evidence.”

Tellier v. US Soc. Sec. Admin.,

Acting Comm’r, No. 17-cv-184-PB, 2018 WL 3370630, at *6 (D.N.H.
July 10, 2018) (citing 20 C.F.R. § 404.1529(c)(2); Clavette v.
Astrue, No. 10-cv-580-JL, 2012 WL 472757, at *9 (D.N.H. Feb. 7,
2012); Valiquette v. Astrue, 498 F. Supp. 2d 424, 433 (D. Mass.
2007); see also SSR 16-3p, 2016 WL 1119029, at *4.

Finally,

when evaluating the intensity and persistence of a claimant’s
symptoms, the ALJ should consider the so-called Avery factors:
(i) the claimant’s daily activities; (ii) the location,
duration, frequency, and intensity of the pain or symptom;
(iii) any precipitating and aggravating factors; (iv) the
effectiveness of any medication currently or previously
taken; (v) the effectiveness of non-medicinal treatment;
(vi) any other self-directed measures used to relieve
12

pain; and (vii) any other factors concerning functional
limitations or restrictions. 20 C.F.R. 404.1529(c)(3);
Childers v. Colvin, [No. 14-cv-270-JL, 2015 WL 4415129],
[at] *5 [(D.N.H. July 17, 2015)] (citing Avery v. Sec’y of
Health & Human Servs., 797 F.2d 19, 29 (1st Cir. 1986)).
Tellier, 2018 WL 3370630, at *7.

However, “‘an ALJ need not

address every Avery factor’ in [her] written decision for [her]
evaluation to be supported by substantial evidence.”

Id.

(quoting Ault v. Astrue, No. 10-cv-553-JL, 2012 WL 72291, at *5
(D.N.H. Jan. 10, 2012)).
Credibility.

Deoliveira first claims that the ALJ erred by

discounting her statements about her symptoms largely because
she had been convicted of welfare fraud.

Assuming that such a

mistake by the ALJ would be a reversible error, a proposition
for which claimant cites no authority, the ALJ did not do what
Deoliveira claims she did.

The ALJ mentioned Deoliveira’s

incarceration at several points in her decision, but she did not
do so as part of either an examination of claimant’s character
for truthfulness or an evaluation of the statements she made
about her symptoms.

Rather, the ALJ mentioned claimant’s

incarceration in discussions of her employment record, see Tr.
25-26, and her medical history, see Tr. 27, 29-30.

But that

does not run afoul of the principle, expressed in SSR 16-3p,
that SSA decisionmakers are not to assess a claimant’s
credibility or character.

See Coskery v. Berryhill, 892 F.3d 1,

6 (1st Cir. 2018) (explaining, when rejecting claimant’s SSR 1613

3p argument, that “we read the ALJ to have referenced Coskery’s
marijuana use not for the purpose of making an assessment of
Coskery’s character or truthfulness, but in order to explain the
basis for its finding that Coskery ‘was noncompliant with
treatment’”).

Thus, Deoliveira’s SSR 16-3p argument gives the

court no cause to reverse the ALJ’s decision.
Non-compliance with treatment.

Deoliveira next claims that

the ALJ erred by discounting her statements about her symptoms
on grounds that she frequently stopped taking medications she
had been prescribed for her physical and mental impairments.

On

this point, SSR 16-3p explains that “if [a claimant] fails to
follow prescribed treatment that might improve symptoms, [the
SSA] may find the alleged intensity and persistence of [her]
symptoms are inconsistent with the overall evidence of record,”
2016 WL 1119029, at *8.

But, the SSA “will not find [a

claimant’s] symptoms inconsistent with the evidence in the
record on this basis without considering the possible reasons he
or she may not comply with treatment or seek treatment
consistent with the degree of his or her complaints.”

Id.

Deoliveira argues that the ALJ failed to properly consider,
or credit, her reasons for discontinuing the medications she had
been prescribed.

However, in the paragraph of her decision in

which she discounted Deoliveira’s statements about her symptoms,
the ALJ did mention claimant’s testimony that she had not gotten
14

much benefit from the medications she has been prescribed.

And

then she continued:
She also declines to go to physical therapy stating
that she tried it once and it actually made her pain
worse; but this is directly refuted by the physical
therapy records provided for review, which show that
she reported improvement in her pain and functional
abilities; and her physical therapist noted improved
range of motion as well.
Tr. 35.7

So, even if the ALJ had erred in her consideration of

claimant’s reasons for not taking various prescription
medications, her reliance upon claimant’s failure to pursue
physical therapy, an explanation that claimant does not address
in her brief, is an acceptable reason for discounting her
statements about her symptoms.
at *8.

See SSR 16-3p, 2016 WL 1119029,

Thus, Deoliveira’s claim that the ALJ mishandled the

non-compliance issue provides no basis for reversing her
decision.
Lack of objective medical evidence.

Finally, Deoliveira

argues that the ALJ’s decision should be reversed because, after
eliminating credibility and non-compliance, the sole basis for
the ALJ’s decision to discount her statements about her symptoms

Elsewhere in her decision, the ALJ also noted: (1)
claimant’s testimony that she voluntarily missed about half of
her medical appointments, see Tr. 26; (2) claimant’s refusal to
have cortisone or other injections to treat her pain, see Tr.
27, 31, 32; (3) her failure to undergo a recommended sleep
study, see Tr. 28; and (4) and an orthopedist’s refusal to see
her because of multiple no-shows, see Tr. 30.
7

15

was the lack of objective medical evidence, which standing
alone, is an insufficient reason for discounting a claimant’s
statements.

As for the legal principle on which she relies,

claimant is correct.

See Tellier, 2018 WL 3370630, at *6.

But

here, the ALJ did not rely solely upon the lack of objective
medical evidence; she also relied upon claimant’s failure to
take her medications and her failure to pursue physical therapy.
Thus, Deoliveira’s final claim against the ALJ’s decision not to
credit her statements also fails.
To sum up, Deoliveira has identified no reversable error in
the ALJ’s decision to discount her statements about her
symptoms.
2.

Medical Opinions

When determining claimant’s physical RFC, the ALJ gave:
(1) great weight to the opinion of Dr. Ann Williams, a nonexamining state-agency consultant who reviewed Deoliveira’s
medical records in November of 2015 and then assessed her
physical residual functional capacity (“RFC”);8 (2) partial
weight to an opinion that Dr. Dave expressed in a Physical

“[R]residual functional capacity ‘is the most [a claimant]
can still do despite [his or her] limitations.’” Purdy, 887
F.3d at 10 n.2 (quoting 20 C.F.R. § 416.945(a)(1), a regulation
governing claims for supplemental security income that is worded
identically to 20 C.F.R. § 404.1545(a), which governs claims for
DIB) (brackets in the original).
8

16

Impairment Medical Source Statement he signed in December of
2016; and (3) little weight to an opinion from Dr. Michele
Urban, a treating physician who signed a Physical Impairment
Medical Source Statement in December of 2016.
claimant’s mental RFC, the ALJ gave:

When determining

(1) great weight to the

opinions expressed in a Mental Health Evaluation Report prepared
by Dr. Sherie Friedrich after she performed a consultative
psychological examination in November of 2015;9 (2) great weight
to the opinion of Dr. Laura Landerman, a non-examining stateagency consultant who reviewed Deoliveira’s medical records,
including Dr. Friedrich’s report, in December of 2015 and
performed a psychiatric review technique (“PRT”) assessment;10
(3) little weight to an opinion from Dr. Michele Gunning, a
treating psychiatrist who completed a Mental Impairment
Questionnaire in December of 2016; (4) little weight to an
opinion from Mr. Samuel Rosario, a licensed social worker who
completed a Mental Impairment Questionnaire in December of 2016;
and (5) little weight to a Psychological Evaluation authored by
Dr. Richard Shulik after he conducted a memory evaluation in

“A consultative examination is a physical or mental
examination or test purchased for [a claimant] at [the SSA’s]
request.” 20 C.F.R. §§ 404.1519 & 416.919.
9

The SSA uses the PRT to evaluate the severity of mental
impairments. See 20 C.F.R. §§ 404.1520a & 416.920a.
10

17

February of 2017.
evaluations.

Claimant challenges all eight of the ALJ’s

The court begins with the relevant law and then

turns to the evaluations at issue.
a.

The Relevant Law

The regulations that govern the evaluation of medical
opinions that apply to disability claims filed before March 27,
2017, outline a hierarchy which, as a general matter, gives the
greatest weight to the opinions of treating sources, less weight
to the opinions of sources who have examined but not treated a
claimant, and the least weight of all to the opinions of sources
who have neither treated nor examined a claimant.
§§ 404.1527(c)(1)-(2) & 416.927(c)(1)-(2).11

See 20 C.F.R.

Moreover, under

those regulations, if an SSA decisionmaker
find[s] that a treating source’s medical opinion on
the issue(s) of the nature and severity of [a
claimant’s] impairment(s) is well-supported by
medically acceptable clinical and laboratory
diagnostic techniques, and is not inconsistent with
the other substantial evidence in [the claimant’s]
case record, [the decisionmaker] will give it
controlling weight.
20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2).

On the other hand,

however, “nothing precludes an ALJ from giving greater weight to
the opinion of a non-treating physician than that of a treating
source where the former is supported by substantial evidence.”

For claims filed on or after March 27, 2017, different
regulations apply. See 20 C.F.R. §§ 404.1520c & 416.920c.
11

18

Nichols v. US Soc. Sec. Admin., Acting Comm’r, No. 16-cv-443-PB,
2018 WL 1307645, at *12 (D.N.H. Mar. 13, 2018) (citing Tetreault
v. Astrue, 865 F. Supp. 2d 116, 124 (D. Mass. 2012); Diaz v.
Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995)).
When a decisionmaker does not give controlling weight to
the opinion of a treating source, she must evaluate it, and all
the other medical opinions in the record, by considering the
following factors:

(1) the length of the treatment relationship

and the frequency of examination; (2) the nature and extent of
the treatment relationship; (3) the degree to which the source
provides support for his or her opinion in the form of medical
signs and laboratory findings; (4) the consistency of the
opinion with the record as a whole; (5) the specialization of
the source; and (6) other factors, including the source’s
familiarity with the SSA’s disability programs.
§§ 404.1527(c)(2)-(6) & 416.927(c)(2)-(6).

See 20 C.F.R.

Finally, “when an

ALJ does not give controlling weight to the opinion of a
treating source, [she] must give good reasons for the amount of
weight [she] does give it.”

Swain v. Berryhill, No. 18-cv-145-

PB, 2018 WL 5342714, at *5 (D.N.H. Oct. 29, 2018) (citing 20
C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2)).

To satisfy that

requirement,
the ALJ’s reasons must be both specific, see Kenerson
v. Astrue, No. 10–cv–161–SM, 2011 WL 1981609, at *4
(D.N.H. May 20, 2011) (citation omitted), and
19

supportable, see Soto–Cedeño v. Astrue, 380 Fed. Appx.
1, 4 (1st Cir. 2010). In sum, the ALJ’s reasons must
“offer a rationale that could be accepted by a
reasonable mind.” Widlund v. Astrue, No. 11–cv–371–
JL, 2012 WL 1676990, at *9 (D.N.H. Apr. 16, 2012)
(citing Lema v. Astrue, C.A. No. 09–11858, 2011 WL
1155195, at *4 (D. Mass. Mar. 21, 2011)), report and
recommendation adopted by 2012 WL 1676984 (D.N.H. May
14, 2012).
Jenness v. Colvin, No. 15–cv–005–LM, 2015 WL 9688392, at *6
(D.N.H. Aug. 27, 2015).
b.

Opinions on Claimant’s Physical RFC

Dr. Williams.

In her RFC assessment, Dr. Williams

determined that Deoliveira could lift and/or carry 10 pounds
frequently and 20 pounds occasionally, stand and/or walk (with
normal breaks) for about six hours in an eight-hour workday, sit
(with normal breaks) for about six hours in an eight-hour
workday, and push and/or pull same amount she could lift and/or
carry.

Dr. Williams did not identify any postural,

manipulative, visual, communicative, or environmental
limitations.
The ALJ gave Dr. Williams’s opinion great weight because of
her familiarity with the SSA’s disability programs and because
her opinion was “not inconsistent with the medical evidence as a
whole,” Tr. 41.

She then continued:

Although the undersigned has determined that the
claimant has some residual functional deficits
associated with her mild stroke and has therefore
included this as a severe impairment with associated
limitations in her ability to perform skilled or paced
20

work, there has been no convincing evidence submitted
since the medical assessments were completed that now
warrants finding greater physical limitations.
Id.
Claimant challenges the AJL’s evaluation of Dr. Williams’s
opinion, arguing that:

(1) the ALJ produced no evidence of Dr.

Williams’s knowledge of the SSA’s disability programs; and (2)
the ALJ’s determination that there was no evidence post-dating
Dr. Williams’s opinion that supported greater limitations is
based upon an erroneous evaluation of the opinions of Dr. Dave
and Dr. Urban.

However, claimant does not identify any

particular aspect of Dr. Williams’s RFC assessment with which
she takes issue.
Deoliveira’s claims are unavailing.

First, Dr. Williams’s

undisputed status as a state-agency consultant, and the content
of her RFC assessment, satisfy the court that she is familiar
with the SSA’s disability programs which, in turn, is a factor
that the regulations specifically direct SSA decisionmakers to
consider when evaluating medical opinions, see 20 C.F.R. §§
404.1527(c)(6) & 416.927(c)(6).

And, for reasons discussed

below, the court cannot agree that the ALJ erred in her
evaluation of the other two medical opinions on claimant’s
physical RFC.

Accordingly, the court finds no fault with the

ALJ’s evaluation of Dr. Williams’s opinion.

21

Dr. Dave.

In his Medical Source Statement, Dr. Dave noted

that he had seen Deoliveira once, on November 9, 2016,12 and he
listed a single diagnosis:

concussion.

When asked to

“[i]dentify the clinical findings and objective signs,” Tr. 740,
of claimant’s impairment, he wrote:

“no focal weakness,” id.

While he made some marginal notes on the form he filled out, he
did not answer many of the questions on it, and he only
identified two actual limitations, opining that:

(1)

Deoliveira’s experience of pain or other symptoms would
frequently interfere with the attention and concentration needed
to perform even simple work tasks; and (2) it was very likely
that Deoliveira would sometimes need to take unscheduled breaks
during an eight-hour workday.

He did not, however, respond to

the questions about the frequency of Deoliveira’s need for
breaks or the duration of the breaks she needed.

Claimant

relies upon Dr. Dave’s opinion that during a typical workday,
her experience of pain or other symptoms would frequently be
“severe enough to interfere with attention and concentration
needed to perform even simple work tasks.”

The record,
consultation note,
that date, and had
February of 2012.
12

Tr. 741.13

however, also includes an October 31, 2013,
which indicates that Dr. Dave saw claimant on
previously seen her, for an initial visit, in
See Tr. 669-70.

The court assumes that such a limitation would preclude
all work, even though claimant’s counsel did not elicit any VE
testimony to that effect at her hearing. See Bolobanic v.
13

22

The ALJ gave that opinion only partial weight because it
was not well supported and because it was only partially
consistent with the record as a whole.

The ALJ’s consistency

rationale, in turn, starts with Dr. Dave’s reliance upon
claimant’s subjective complaints, and then turns to the lack of
support for those complaints in the objective medical record.
Claimant disagrees with the ALJ’s evaluation of Dr. Dave’s
opinion, but rather than addressing the ALJ’s supportability
rationale, she merely points to the ALJ’s purportedly erroneous
assessment of her statements about her symptoms.

Because the

ALJ did not err in his evaluation of claimant’s statements about
her symptoms, however, for the reasons explained above,
claimant’s challenge to the ALJ’s evaluation of Dr. Dave’s
opinion fails to persuade.
Moreover, the ALJ’s supportability rationale is a good
reason for discounting Dr. Dave’s opinion.

Supportability by

medical signs is one of the factors that SSA decisionmakers are
directed to consider when weighing medical opinions.
C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3).

See 20

The only medical sign

that Dr. Dave presented to support his opinion is “no focal

Astrue, No. 11-cv-441-PB, 2012 WL 2049382, at *4 (D.N.H. May 21,
2012) (noting VE testimony that there would be no jobs available
for a person who had pain or other symptoms that frequently or
constantly interfered with the attention and concentration
needed to perform even simple work tasks), R. & R. adopted by
2012 WL 2046326 (June 5, 2012).
23

weakness,” Tr. 740, but there is nothing in Dr. Dave’s opinion
that explains how “no focal weakness” is a medical sign that
would support a finding that a person who exhibits that sign
would frequently be distracted by pain or other symptoms.
Accordingly, the ALJ did not err in her decision to discount Dr.
Dave’s opinion as inadequately supported.
Dr. Urban.

In her Medical Source Statement, Dr. Urban

indicated that she had seen Deoliveira four times over the
previous year.

She listed the following diagnoses:

concussion

syndrome, severe anxiety/depression, attention deficit
hyperactivity disorder, inflammatory arthritis, fibromyalgia,
mild degenerative arthritis in knees, left ICA dissection,14 and
spondylosis of the cervical spine.15

When asked to “[i]dentify

the clinical findings and objective signs,” Tr. 1012, of
claimant’s impairments, she wrote: “see attached office note,”
id.

However, there is no office note attached to the copy of

Dr. Urban’s Medical Source Statement that appears in the record.
Moreover, Dr. Urban did not answer any of the questions on the

ICA is an “[a]bbreviation for internal carotid artery.”
Stedman’s, supra, at 942 (emphasis omitted).
14

Spondylosis is “[a]nkylosis of the vertebra; often
applied nonspecifically to any lesion of the spine of a
degenerative nature.” Stedman’s, supra, at 1813. Ankylosis is
“[s]tiffening or fixation of a joint as a result of a disease
process, with fibrous or bony union across the joint; fusion.”
Id. at 95.
15

24

form regarding Deoliveira’s physical RFC, stating that
Deoliveira needed a functional capacity evaluation.16

Like Dr.

Dave, however, Dr. Urban opined that Deoliveira’s experience of
pain or other symptoms would frequently interfere with the
attention and concentration needed to perform even simple work
tasks.

That is the opinion on which claimant relies.

The ALJ gave that opinion little weight because Dr. Urban:
(1) did “not set forth any narrative explanation for [that]
conclusion,” Tr. 38; (2) stated that claimant was taking
multiple pain medications and muscle relaxants when, in fact,
she was not; and (3) “acknowledge[d] that she [was] not
qualified to comment on either the claimant’s mental
functioning, or her physical capabilities,” Tr. 38.
Claimant disagrees with the ALJ’s evaluation of Dr. Urban’s
opinion.

She challenges the ALJ’s supportability findings by

arguing that those
findings disregard the specific descriptions of Ms.
Deoliveira’s symptoms and pain provided by Dr. Urban,
which are adequately extensive to support her opinion
that Ms. Deoliveira’s pain symptoms would frequently

Dr. Urban referred claimant to an occupational therapist,
Joan Van Saun, for a functional capacity evaluation. After
noting that “there were significant discrepancies between
[claimant’s] reported and her demonstrated functional
abilities,” Tr. 1020, Van Saun determined that “it [was] not
possible to predict with accuracy the work capacity of a patient
with this profile, i.e., significant pain behaviors,
inconsistency of effort [and] inconsistency between reported and
demonstrated functional abilities,” Tr. 1021.
16

25

interfere with her ability to perform even simple
work. (Tr. 1012-12).
Cl.’s Mem. of Law (doc. no. 8-1) 9.

With respect to the ALJ’s

second reason for discounting Dr. Urban’s opinion, claimant
argues that the ALJ erred because “the record is replete with
medical records and testimony that [she] attempted treatment of
her chronic pain with numerous pain medications and muscle
relaxants that were discontinued due to the side effects that
they caused.”

Id. at 8.

Claimant does not appear to challenge

the ALJ’s third reason for discounting Dr. Urban’s opinion.

In

any event, the ALJ’s first two rationales are both good reasons
for discounting Dr. Urban’s opinion.
Turning to the ALJ’s supportability rationale, Dr. Urban’s
Medical Source Statement does document some descriptions of
Deoliveira’s symptoms, as claimant suggests, but the
supportability inquiry focusses on “medical signs and laboratory
findings,” 20 C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3), not a
claimant’s subjective complaints.

In the portion of the form

that asked her to “[i]dentify . . . clinical findings and
objective signs,” Tr. 1012, Dr. Urban referred to an “attached”
but otherwise unidentified office note that was not attached to
her Medical Source Statement.

Beyond that, as best the court

can tell from the record, when Dr. Urban completed her Medical
Source Statement, she had last seen Deoliveira in October of

26

2016.

See Tr. 813-14.

If Dr. Urban’s October 24, 2016,

progress note is the office note to which she referred in her
Medical Source Statement, it is not at all clear how that note
provides support for a finding that Deoliveira suffered from
pain that affected her attention and concentration to the point
where she was unable to work.

While Dr. Urban’s examination

revealed some pain on palpation, she also reported that
Deoliveira was “in no acute distress,” Tr. 813.

Neither the

clinical findings noted above nor anything else in the October
2016 progress note appears to support the limitation in Dr.
Urban’s Medical Source Statement on which claimant relies, i.e.,
that she would be frequently distracted by pain or other
symptoms.
The ALJ’s second rationale, Dr. Urban’s apparent
misunderstanding of the medical record, is also a good reason
for discounting her opinion.

When asked to describe claimant’s

“treatment and response including any side effects of
medication,” Tr. 1012, Dr. Urban said that claimant was then “on
multiple medications,” id. (emphasis added), and, necessarily,
her opinion rested upon that understanding of the record.

When

the ALJ challenged Dr. Urban’s understanding of the record by
pointing out that claimant was not actually taking all that many
medications (because she had stopped taking several of the
medications she had been prescribed) claimant’s response was not
27

to say that she was actually taking multiple medications, as Dr.
Urban had said.

Rather, she faulted the ALJ for failing to

acknowledge the reasons why she had stopped taking her
prescribed medications.

The record may well include medical

records that document claimant’s explanations for why she
stopped taking various medications, but the fact remains that
Dr. Urban appears not to have taken any such records into
account when forming her opinion, given her statement that
claimant was taking many medications.

The inconsistency between

Dr. Urban’s understanding of the medical record and the actual
state of that record, as characterized by claimant herself, is
another good reason for discounting Dr. Urban’s opinion.
In sum, the ALJ did not err by giving Dr. Urban’s opinion
little weight.
c.

Fibromyalgia

At the end of her discussion of the ALJ’s evaluation of the
opinions provided by Dr. Dave and Dr. Urban, Deoliveira claims
that because the ALJ found that her fibromyalgia was a severe
impairment, she “erroneously evaluated the opinion evidence of
record based upon a lack of objective medical evidence to
substantiate her claimed chronic pain symptoms and limitations.”
Cl.’ Mem. of Law (doc. no. 8-1).

But in the discussion that

follows the foregoing claim, Deoliveira quotes from, and takes
issue with, two statements that appear in the portion of the
28

ALJ’s decision that is devoted not to her evaluation of the
medical-opinion evidence but to her assessment of claimant’s
statements about her symptoms.

Thus, the actual gravamen of

claimant’s fibromyalgia argument is somewhat murky.
If Deoliveira is claiming that her fibromyalgia diagnosis
and/or the ALJ’s determination that her fibromyalgia was a
severe impairment compelled the ALJ to credit Dr. Urban’s
opinion that her pain would frequently interfere with the
concentration and attention needed to perform simple work tasks,
she is mistaken.17

As the court has noted, the ALJ discounted

Dr. Urban’s opinion in part because she did not “present[]
relevant evidence to support [it], particularly medical signs
and laboratory findings,” 20 C.F.R. §§ 404.1527(c)(3) &
416.927(c)(3).

It is true that Dr. Urban did list a diagnosis

of fibromyalgia on her Medical Source Statement.

But, a review

of Dr. Urban’s progress notes reveals that while she
acknowledged a previous diagnosis of fibromyalgia by Dr. John
Haley,18 she never made such a diagnosis on her own, and her
notes do not show findings that would satisfy the diagnostic

Given that Dr. Dave did not even identify fibromyalgia as
a diagnosis on his Medical Source Statement, nothing the ALJ did
or did not do with respect to fibromyalgia could have led to any
error in evaluating Dr. Dave’s opinion.
17

Dr. Haley diagnosed Deoliveira with fibromyalgia and
treated her for it, but also noted that his “[d]iagnosis [was]
by no means certain,” Tr. 630.
18

29

criteria for fibromyalgia adopted by the SSA, see Maynard v.
Berryhill, No. 17-cv-087-PB, 2018 WL 839994, at *5 (D.N.H. Feb.
13, 2018) (quoting SSR 12-2p, 2012 WL 3104869, at *3-4 (S.S.A.
July 25, 2012)).

Thus, claimant’s invocation of fibromyalgia

adds nothing to the analysis that would undermine the ALJ’s
decision to discount Dr. Urban’s opinion as inadequately
supported.
If, on the other hand, Deoliveira is claiming that her
fibromyalgia diagnosis and/or the ALJ’s determination that her
fibromyalgia was a severe impairment compelled the ALJ to credit
her statements about disabling pain, she is also mistaken.

In

Johnson v. Astrue, on which claimant bases her fibromyalgia
argument, the court of appeals pointed out that “[t]he primary
symptom of fibromyalgia . . . is chronic widespread pain,” 597
F.3d 409, 414 (1st Cir. 2009), and explained that
once the ALJ accepted the diagnosis of fibromyalgia,
she also “had no choice but to conclude that the
claimant suffer[ed] from the symptoms usually
associated with [such condition], unless there was
substantial evidence in the record to support a
finding that claimant did not endure a particular
symptom or symptoms,”
id. (quoting Rose v. Shalala, 34 F.3d 13, 19 (1st Cir. 1994))
(emphasis and brackets added by Johnson).

Here, when

discounting claimant’s statements about her symptoms, the ALJ
identified substantial evidence in the record to support a
finding that her pain was not as great as she claimed it was,
30

that evidence being claimant’s refusal to engage in physical
therapy on grounds that it made her symptoms worse,
notwithstanding physical therapy records demonstrating the
opposite.

Thus, Johnson did not compel the ALJ to credit

claimant’s statements about the limiting effects of her
fibromyalgia pain.
In sum, there is nothing about claimant’s diagnosis of
fibromyalgia, or the First Circuit’s decision in Johnson, that
moves this court to find that the ALJ erred in her evaluation of
Dr. Urban’s opinion or her assessment of claimant’s statements
about her symptoms.
d.
Dr. Friedrich.

Opinions on Claimant’s Mental RFC
After performing her consultative

examination, which she characterized as a comprehensive
psychological profile, Dr. Friedrich produced a Mental Health
Evaluation Report.

In it, she described the results of a six-

part mental status examination that included a section titled
“Sensorium of Functions,” Tr. 712.

Under that heading, Dr.

Friedrich reported:
Alert and oriented to season, month, day of week,
date, and year. Oriented to city, state, county, and
setting. Able to read, write, and repeat a simple
sentence. Able to copy a simple geometric design.
Able to perform 5 of 5 serial sevens. Able to recall
1 of 3 words after a five minute delay. Able to spell
the word “world” backward.

31

Tr. 713.

With respect to Deoliveira’s then-current level of

functioning, Dr. Friedrich provided the following findings:
a. Activities of Daily Living: . . . [T]he claimant is
able to complete most activities of daily living. She
tends to her grooming and hygiene, showering every
other day and dressing into clean clothing daily. She
is able to prepare meals. The claimant drives herself
where she needs to go and runs errands and grocery
shops as needed. She performs basic household tasks.
The claimant manages her own finances and personal
affairs.
b. Social Functioning: . . . [T]he claimant is able to
interact appropriately with others. She was
cooperative during the evaluation and behaved
appropriately. She denies ongoing conflicts with
others. Her communications skills were fair. There
is no evidence of impairment in this domain.
c. Understanding and Remembering Instructions: . . .
[T]he claimant is able to understand locations and
work-like procedures and follow through with simple
instructions. She was able to follow simple
instructions during the evaluation. There is no
evidence to suggest that the claimant is unable to
follow work-like procedures.
d. Concentration and Task Completion: . . . [T]he
claimant is able to maintain attention and
concentration and complete tasks. She worked at a
reasonable pace during the evaluation. She is able to
complete tasks at home. She was able to concentrate
to spell the word “world” backwards and to complete
five of five serial sevens. There is no psychological
evidence of impairment in this domain.
e. Reaction to Stress, Adaptation to Work or Work-like
Situations: . . . [T]he claimant is able to tolerate
most stressors common to a work setting. She is able
to maintain a daily schedule and routine. The
claimant can make simple decisions for herself and has
fair judgment. Based on her presentation today, I
believe she could interact appropriately with
supervisors.

32

Tr. 714-15 (emphasis added).
The ALJ gave Dr. Friedrich’s opinion great weight because
it was “consistent with the neurology records provided for
review, which demonstrate[d] no cognitive deficits whatsoever,”
Tr. 41, and further explained that the treatment records postdating Dr. Friedrich’s examination, by Dr. Gunning and Mr.
Rosario, “contain no objective evidence of greater mental
limitations than those described by Dr. Friedrich in her
November 2015 report,” id.

In addition, because of claimant’s

“mild difficulty with delayed recall,” Tr. 41, as demonstrated
by her performance on Dr. Friedrich’s mental status examination,
the ALJ included a limitation to unskilled work in claimant’s
RFC.
Claimant disagrees with the ALJ’s evaluation of Dr.
Friedrich’s opinion, which she characterizes as a determination
that she “had essentially no limitations in her ability to
perform simple work,” Cl.’s Mem. of Law (doc. no. 8-1) 13.
Rather than challenging the ALJ’s determination that Dr.
Friedrich’s opinion was consistent with the neurology records,
claimant argues that the ALJ erred in giving great weight to
that opinion because
Dr. Friedrich performed no extensive psychological
testing during her exam and noted that [she] was able
to recall only one of three words after a five-minute
delay, consistent with the objective memory testing
later performed by Dr. Shulik and inconsistent with
33

the ALJ’s finding of only “mild difficulty with
delayed recall.” (Tr. 41, 713).
Id.

Claimant has given the court no reason to reverse the ALJ’s

decision based upon her determination that Dr. Friedrich’s
opinion was entitled to great weight.
To cast Deoliveira’s claim in terms of the regulations that
govern the evaluation of medical-opinion evidence, she appears
to claim that the ALJ erroneously credited Dr. Friedrich’s
opinion that she was capable of following simple instructions
because Dr. Friedrich did not adequately support that opinion,
see 20 C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3) or because it
was inconsistent with the record as a whole, see 20 C.F.R. §§
404.1527(c)(4) & 416.927(c)(4).

Neither part of that claim is

persuasive.
First, Dr. Friedrich did provide support for her opinion.19
Specifically, she reported the results of her mental status
examination, which included seven items related to memory, six
of which Deoliveira handled with no problem.

See Tr. 713.

And,

Dr. Friedrich further supported her opinion that Deoliveira
could follow simple instructions with her own observation that
Deoliveira “was able to follow simple instructions during the

In the same sentence in which she says that Dr. Friedrich
failed to conduct extensive psychological testing, claimant
reports one of seven results from one part of Dr. Friedrich’s
six-part mental status examination.
19

34

evaluation,” Tr. 713.

Thus, the ALJ did not err by failing to

discount Dr. Friedrich’s opinion due to a lack of support.
As for consistency with the record as a whole, Deoliveira
claims that the ALJ’s finding that she “demonstrated [only] mild
difficulty with delayed recall,” Tr. 41, is inconsistent with
both the results of Dr. Friedrich’s mental status examination
and Dr. Shulik’s more extensive memory testing.

However, she

does not seem to argue that Dr. Friedrich’s opinion that she
could follow simple instructions was inconsistent with anything
in the record as a whole.

Moreover, there appears to be no

evidence in the record to support a finding that claimant was
not capable of following simple instructions.

Dr. Shulik’s

psychological evaluation documents severe memory problems, but
does not express Dr. Shulik’s clinical findings in functional
terms, so there is no basis for finding that Dr. Friedrich’s
opinion is inconsistent with Dr. Shulik’s findings.

In short,

like her supportability claim, Deoliveira’s consistency claim
gives the court no reason to reverse the ALJ’s decision based
upon her determination that Dr. Friedrich’s opinion was entitled
to great weight.
Dr. Landerman.

Based upon her review of Deoliveira’s

medical records, Dr. Landerman found that Deoliveira had:
restrictions on her activities of daily living, mild
difficulties in maintaining social functioning, mild
35

mild

difficulties in maintaining concentration, persistence or pace,
and no repeated episodes of decompensation, each of extended
duration.

Based upon those findings, Dr. Landerman determined

that Deoliveira had no severe mental impairments.
The ALJ gave Dr. Landerman’s opinion great weight
because of her familiarity with the SSA’s disability programs
and because her opinion was “not inconsistent with the medical
evidence as a whole,” Tr. 41.

Deoliveira’s only real claim is

that the ALJ produced no evidence of Dr. Landerman’s knowledge
of the SSA’s disability programs, but for the same reasons that
apply to Dr. Williams’s opinion, stated above, that claim is
also unavailing as to Dr. Landerman’s opinion.

Beyond that,

claimant does not identify any particular aspect of Dr.
Landerman’s opinion with which she takes issue.

And, indeed,

Dr. Landerman merely opined that Deoliveira did not have a
listing-level mental impairment, and Deoliveira does not claim
that she did.
In sum, the ALJ’s evaluation of Dr. Landerman’s opinion
provides no basis for reversing her decision.
Dr. Gunning.
Gunning:

In her Mental Impairment Questionnaire, Dr.

(1) stated that she had seen Deoliveira six times

during the course of the year; (2) listed diagnoses that include
anxiety, major depression, and insomnia; (3) identified
“anxiety, depressive symptoms, and insomnia,” Tr. 745, as
36

“clinical findings including results of mental status
examination that demonstrate[d] the severity of [claimant’s]
mental impairment and symptoms,” id. (emphasis added); and (4)
described Deoliveira’s prognosis as “guarded due to her physical
issues & poorly controlled pain,” id.

The form that Dr. Gunning

completed also asked her to indicate the symptoms of
Deoliveira’s mental impairments.

She checked the boxes for

anhedonia or pervasive loss of interest in almost all
activities, decreased energy, generalized persistent anxiety,
mood disturbances, difficulty thinking or concentrating, and
sleep disturbance, but she did not check the box for “[m]emory
impairment – short, intermediate, or long term,” Tr. 746.
Like Dr. Landerman, Dr. Gunning found that Deoliveira had:
mild restrictions, or none at all, on her activities of daily
living; mild difficulties, or none at all, in maintaining social
functioning; mild difficulties, or none at all, in maintaining
concentration, persistence or pace; and no repeated episodes of
decompensation, each of extended duration.
With respect to the 16 mental abilities and aptitudes
needed to do unskilled work, Dr. Gunning rated Deoliveira as
unlimited or very good in two of them, including the ability to
maintain regular attendance and be punctual within customary,
usually strict tolerances.

She rated Deoliveira as limited but

satisfactory in ten abilities, including the abilities to:
37

(1)

remember work-like procedures; (2) understand and remember very
short and simple instructions; and (3) carry out very short and
simple instructions.

Finally, Dr. Gunning rated Deoliveira as

seriously limited but not precluded in the remaining four
abilities:

(1) completing a normal workday and workweek without

interruptions from psychologically based symptoms; (2)
performing at a consistent pace without an unreasonable number
and length of rest periods; (3) responding appropriately to
changes in a routine work setting; and (4) dealing with normal
work stress.

Finally, there were no abilities for which Dr.

Gunning gave Deoliveira either of the two lowest ratings
available, i.e., “unable to meet competitive standards,” and “no
useful ability to function.”

When asked to explain her

determination that claimant had serious limitations on four
abilities and to “include the medical/clinical findings that
support this assessment,” Tr. 748, Dr. Gunning wrote:

“prone to

high anxiety which can affect function when under stress,” id.
With respect to the four mental abilities and aptitudes
needed to do semiskilled and skilled work, Dr. Gunning rated
Deoliveira as unlimited or very good in one of them and as

38

limited but satisfactory in the other three, including the
ability to understand and remember detailed instructions.20
Finally, Dr. Gunning found that Deoliveira would be absent
from work about two days a month due to her impairments or
treatment for them.

At claimant’s hearing, the VE testified

that “[t]ypically one unexcused absence per month is tolerated,”
Tr. 106, but did not offer any testimony on the number of
absences per month that are typically excused, through the use
of leave time, so it is not entirely clear that a need for two
absences per month would result in more than one unexcused
absence per month.

However, the court will presume that the

limitation at issue would preclude employment.
The ALJ gave Dr. Gunning’s opinions little weight because:
(1) she did not provide clinical findings to support them, but,
instead, answered a question about clinical findings by listing
mere diagnoses; (2) she ventured outside her practice area by
offering an opinion on the effect of pain on claimant’s mental
RFC; (3) her opinions were internally inconsistent;21 and (4) she

In addition, with respect to the mental abilities and
aptitude needed to do particular types of jobs, Dr. Gunning
rated Deoliveira as unlimited or very good in all five.
20

The purported inconsistency stems from the fact that Dr.
Gunning found that claimant had only mild “limitations in the
[broad] areas of performing activities of daily living,
maintaining social functioning, and maintaining concentration,
persistence and pace,” Tr. 37, but also found that she had
serious limitations the specific abilities to: (1) complete a
21

39

offered no explanation for her opinion that claimant would be
absent from work about two days per month.

Deoliveira takes

issue with each of the reasons the ALJ gave for discounting Dr.
Gunning’s opinions.
For the sake of argument, the court will presume that the
ALJ’s second and third reasons for discounting Dr. Gunning’s
opinions are not good reasons.22

However, her first and fourth

reasons, taken together, present a supportability rationale that
could be accepted by a reasonable mind as sufficient to support
her determination that Dr. Gunning’s opinions were entitled to
little weight.
As the court has noted, Dr. Gunning identified:

(1)

“anxiety, depressive symptoms, and insomnia” as “clinical
findings . . . demonstrate[ing] the severity of [claimant’s]
mental impairment and symptoms,” Tr. 745; and (2) “high anxiety
. . . when under stress” as “medical/clinical findings” that

normal workday and workweek; (2) perform at a consistent pace;
(3) respond appropriately to changes in a routine work setting;
and (4) deal with normal work stress.
With regard to the third reason, a purported internal
inconsistency in Dr. Gunning’s opinion, given that Dr. Gunning
found at least satisfactory functioning in 21 of 25 specific
mental abilities and aptitudes listed on her questionnaire, see
Tr. 747-48, it is hardly clear that she created an inconsistency
by finding mild or no limitations in the three broad categories
of activities of daily living, social functioning, and
maintaining concentration, persistence, or pace, see Tr. 749.
22

40

supported her determination that claimant had serious
limitations in four of the sixteen mental abilities and
aptitudes necessary to do unskilled work.

In response to the

ALJ’s supportability rationale for discounting Dr. Gunning’s
opinion, claimant argues:
[R]egarding the ALJ’s finding that Dr. Gunning did not
offer sufficient explanation to support her opinion of
specific serious limitations, Dr. Gunning also wrote
that Ms. Deoliveira was “prone to high anxiety which
can affect function when under stress” to explain her
opinion of serious limitations in the four identified
areas. . . . The ALJ also erroneously found that Dr.
Gunning did not offer any explanation for her opinion
that Ms. Deoliveira would be absent from work about
two days per month due to her impairments or
treatment, because as noted previously Dr. Gunning
explained that periods of high anxiety would affect
her functioning to a greater extent when present – Dr.
Gunning’s opinion regarding the number of absences
that Ms. Deoliveira was likely to have in a month due
to her impairments is consistent with her opinion of
serious limitations in her ability to complete a
normal workday or workweek without interruptions and
to perform at a consistent pace without an
unreasonable number and length of rest periods. Dr.
Gunning’s opinion is also consistent with her
treatment notes . . .
Cl.’s Mem. of Law (doc. no. 8-1) 5-7.23
While claimant restates what Dr. Gunning wrote on her
Mental Impairment Questionnaire, she does not really explain how
those responses count as “medical signs [or] laboratory
findings,” 20 C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3), that

Claimant does not mention Dr. Gunning’s opinion that she
had an unlimited or very good ability to maintain regular
attendance and be punctual within strict tolerances.
23

41

support the functional limitations she identified in her
opinion.

For her part, the Acting Commissioner says that the

notations on which claimant relies do little more than name
diagnoses, and argues that a diagnosis alone is insufficient to
qualify as support for a medical opinion for the purposes of 20
C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3).

The court agrees.

In Whitney v. Berryhill, a treating source found various
limitations on a claimant’s exertional capacity.

Then he

attributed the exertional limitations that he assessed
to the plaintiff’s morbid obesity, “severe
osteoarthritis knees, shoulder and probably hip—
limited exertional capacity and poorly controlled
diabetes with neuropathy” [and] elaborated with
respect to her knee impairments: “Her knees are
basically shot and would benefit from total knee
replacements.”
No. 1:16-cv-00354-JAW, 2017 WL 2839632, at *8 (D. Me. July 2,
2017) (citation to the record omitted).

The ALJ in Whitney gave

the treating source’s opinion only partial weight, because the
extent of the limitations he found was not explained in his
opinion or supported by his treatment records.

See id.

The

court affirmed, and explained:
Dr. Shannon primarily identified diagnoses in support
of his findings; however, as the commissioner points
out, the diagnosis of a condition, without more, fails
to inform a fact-finder about a condition’s severity,
see, e.g., Brown v. Colvin, No. 2:13-cv-473-JHR, 2015
WL 58396, at *2 (D. Me. Jan. 5, 2015) (a diagnosis,
alone, does not establish a condition’s severity).

42

Id. at *9 (citation to the record omitted).

Just as Dr.

Shannon’s identification of diagnoses was insufficient to
support his opinions in Whitney, Dr. Gunning’s failure to do
anything more than list diagnoses as explanations for the
limitations she identified gave the ALJ a good reason to
discount her opinion.
Because the ALJ did not err in her evaluation of Dr.
Gunning’s opinion, that aspect of her decision gives the court
no basis for reversing it.
Mr. Rosario.
Rosario:

In his Mental Impairment Questionnaire, Mr.

(1) stated that he had been seeing Deoliveira for

about seven months; (2) listed diagnoses that include anxiety
and major depression; (3) identified “Anxiety, Depression, ↑
pain,” Tr. 752, as “clinical findings . . . that demonstrate[d]
the severity of [claimant’s] mental impairment and symptoms,”
id. (emphasis added); and (4) described Deoliveira’s prognosis
as “guarded due to physical problems struggles with controlling
pain – multiple medical issues,” id.
Mr. Rosario found that Deoliveira had:

mild restrictions,

or none at all, on her activities of daily living; mild
difficulties, or none at all, in maintaining social functioning;
moderate difficulties in maintaining concentration, persistence
or pace; and no repeated episodes of decompensation, each of
extended duration.
43

With respect to the mental abilities and aptitudes needed
to do unskilled work, semiskilled work, and particular types of
jobs, Mr. Rosario’s responses mirrored those of Dr. Gunning.
When asked to explain his determination that claimant had
serious limitations on four abilities and to “include the
medical/clinical findings that support this assessment,” Tr.
755, Mr. Rosario wrote: “Struggles with anxiety, agitation +
frustration due to stress + chronic pain,” id.

Finally, like

Dr. Gunning, Mr. Rosario found that Deoliveira would be absent
from work about two days a month due to her impairments or
treatment for them.
The ALJ gave Mr. Rosario’s opinions little weight because
he:

(1) did not provide clinical findings to support them, but

merely stated various diagnoses; (2) offered no explanation for
his opinion that claimant would be absent from work about two
days per month; and (3) is not an acceptable medical source.
Mr. Rosario provided no better support for his opinions than Dr.
Gunning provided for hers.

For that reason, and because Mr.

Rosario is not an acceptable medical source, see 20 C.F.R. §§
404.1513 (2016) & 416.913 (2016) defining the term “acceptable
medical sources” in a way that excludes social workers); SSR 0603p, 2006 WL 2329939, at *5 (S.S.A. Aug. 9, 2006) (“The fact
that a medical opinion is from an ‘acceptable medical source’ is
a factor that may justify giving that opinion greater weight
44

than an opinion from a medical source who is not an ‘acceptable
medical source . . . .’”), the ALJ’s determination that Mr.
Rosario’s opinion deserved little weight gives the court no
reason to reverse her decision.
Dr. Shulik.

Dr. Gunning referred Deoliveira to Dr. Shulik

for a memory evaluation.

Dr. Shulik, in turn, administered the

Wechsler Abbreviated Scale of Intelligence (Second Edition), on
which Deoliveira exhibited a “normal profile,” Tr. 1023, and the
Wide Range Assessment of Memory and Learning – Second Edition,
on which Deoliveira exhibited a “weak profile,” id.

According

to Dr. Shulik, Deoliveira’s “over-all score for the [memory]
test . . . place[d] her within the first percentile among her
peers in terms of general memory functioning.”

Id.

He then

diagnosed Deoliveira with a “[m]ajor neurocognitive disorder
secondary to stroke and head injuries.”

Tr. 1024.

Under the

heading “Discussion and Recommendations,” he elaborated:
Ms. deOlivera’s deficits seem to be genuine. . . .
[S]he has put forth her best efforts in the context of
this evaluation: [I have] no reason to believe that
her low scores within the memory test battery
represent feigning or malingering. Moreover . . . Ms.
deOlivera’s memory deficits are of major proportions.
They are consistent with her reports that she is
unable to work at this time.
Tr. 1024.
The ALJ began her assessment of Dr. Shulik’s evaluation by
noting that Dr. Shulik “offered no opinion on the claimant’s

45

ability to perform specific work-related mental activities.”
Tr. 39.
because:

Then, she gave Dr. Shulik’s evaluation little weight
(1) his finding of a severe memory deficit was

inconsistent with the record as a whole, including both medical
and non-medical evidence; and (2) the evaluation was based on “a
one-time examination with findings not described anywhere else
in [claimant’s] neurology or mental health treatment records,”
Tr. 40, and was “more akin to an advocacy opinion,” id.

In

addition, the ALJ pointed out that while Dr. Shulik did not
suspect that Deoliveira’s low scores resulted from feigning or
malingering, Joan Van Saun had reported inconsistent effort on
the functional capacity assessment she had administered, and
several treating sources had noted extensive non-compliance with
treatment.

For her part, claimant offers a point-by-point

refutation of the reasons the ALJ gave for discounting Dr.
Shulik’s evaluation.
While the ALJ and the parties have devoted considerable
attention to Dr. Shulik’s evaluation, that evaluation, as the
ALJ correctly pointed out, “offered no opinion on the claimant’s
ability to perform specific work-related mental activities,” Tr.
39.

For that reason, Dr. Shulik’s evaluation is not a medical

opinion.

The applicable regulations define “medical opinions”

as

46

statements from acceptable medical sources that
reflect judgments about the nature and severity of [a
claimant’s] impairment(s), including [her] symptoms,
diagnosis and progress, what [she] can still do
despite impairment(s), and [her] physical or mental
restrictions.
20 C.F.R. §§ 404.1527(a)(1) & 416.927(a)(1).

While Dr. Shulik’s

evaluation includes various test results, it contains relatively
little in the way of judgments about the severity or functional
effects of claimant’s mental impairment(s).

To be sure, Dr.

Shulik stated that claimant’s memory deficits were “consistent
with her reports that she [was] unable to work at [that] time.”
Tr. 1024.

That, however, is not a medical opinion; it is an

opinion on an issue reserved to the commissioner, see 20 C.F.R.
§§ 404.1527(d)(1) & 416.927(d)(1), and as such, it is not
entitled to “any special significance,” 20 C.F.R. §§
404.1527(d)(3) & 416.927(d)(3).

Indeed, if the ALJ had used the

test results from Dr. Shulik’s evaluation as the basis for
determining claimant’s mental RFC, she would have bumped into
the well-established principle that “an ALJ, as a lay person,
cannot interpret a claimant’s medical records to determine [her]
RFC [but] must rely to some degree on RFC evaluations from a
physician or another expert,” Piper v. Berryhill, No. 16-cv-455JL, 2018 WL 1392908, at *2 (D.N.H. Mar. 20, 2018) (quoting
Delafontaine v. Astrue, No. 1:10-cv-027-JL, 2011 WL 53084, at *
(D.N.H. Jan. 7, 2011)).

47

Because Dr. Shulik’s evaluation was not a medical opinion,
it was not subject to evaluation under 20 C.F.R. §§ 404.1527 &
416.927 in the first instance.

Accordingly, the court need not

make this order any longer than it already is by addressing
arguments by the parties that treat Dr. Shulik’s evaluation as
if it were a medical opinion.

More importantly, because Dr.

Shulik’s evaluation as not a medical opinion, it was not a
reversible error for the ALJ to determine – perhaps
unnecessarily – that that evaluation was entitled to little
weight.24
IV. Conclusion
Because the ALJ has committed neither a legal nor a factual
error in evaluating Deoliveira’s claim, see Manso-Pizarro, 76
F.3d at 16, her motion for an order reversing the Acting
Commissioner’s decision25 is denied, and the Acting
Commissioner’s motion for an order affirming her decision26 is

Finally, to the extent that claimant relies upon Dr.
Shulik’s evaluation for the proposition that she lacked enough
capacity for memory to perform work-related activities, the only
actual opinions on that issue come from her treating
psychiatrist, who opined that she had a limited but satisfactory
capacity to understand, remember, and carry out detailed
instructions.
24

25

26

Document no. 8
Document no. 9
48

granted.

The clerk of the court shall enter judgment in favor

of the Acting Commissioner and close the case.
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

January 2, 2019

D. Lance Tillinghast, Esq.
Terry L. Ollila, AUSA

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