Holland v. US Social Security Administration, Acting Commissioner

Filing 13

///ORDER granting 10 Motion to Affirm Decision of Commissioner; denying 7 Motion to Reverse Decision of Commissione. Clerk shall enter judgment and close the case. So Ordered by Chief Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sheila Carol Holland
v.

Civil No. 18-cv-003-LM
Opinion No. 2019 DNH 023

U.S. Social Security Commission,
Acting Commissioner

O R D E R
Sheila Holland seeks judicial review of the decision of the
Acting Commissioner of the Social Security Administration,
denying in part her application for disability insurance
benefits and supplemental social security income.

Holland moves

to reverse the Acting Commissioner’s decision, and the Acting
Commissioner moves to affirm.

For the reasons discussed below,

the court grants the Acting Commissioner’s motion to affirm and
denies Holland’s motion to reverse.
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 [Administrative Law Judge] 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).
is more than a scintilla.

“Substantial evidence

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
Administrative Law Judge (“ALJ”) follows a five-step sequential
analysis.

20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4).1

The

claimant “has the burden of production and proof at the first
four steps of the process.”
608 (1st Cir. 2001).

Freeman v. Barnhart, 274 F.3d 606,

The first three steps are (1) determining

whether the claimant is engaged in substantial gainful activity;
(2) determining whether she 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 her limitations caused by impairments, id.

Because the pertinent regulations governing disability
insurance benefits at 20 C.F.R. Part 404 are the same as the
pertinent regulations governing supplemental security income at
20 C.F.R. Part 416, the court will cite only Part 404
regulations. See Reagan v. Sec’y of Health & Human Servs., 877
F.2d 123, 124 (1st Cir. 1989).
1

2

§ 404.1545(a)(1), and her past relevant work, id.
§ 404.1520(a)(4)(iv).

If the claimant can perform her past

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

See id. § 404.1520(a)(4)(iv).

If the claimant cannot

perform her past relevant work, the ALJ proceeds to Step Five,
where 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).
BACKGROUND

A detailed statement of the facts can be found in the
parties’ Joint Statement of Material Facts (doc. no. 12).

The

court provides a brief summary of the case here.
I.

Procedural Background
On September 17, 2013, Holland filed an application for

disability insurance benefits and supplemental social security
income, alleging a disability onset date of May 2, 2013, when
she was 51 years old.

After Holland’s claim was denied at the

initial level, she requested a hearing in front of an ALJ.

On

February 24, 2015, the ALJ held a hearing, and he denied
Holland’s claim for benefits in a written decision dated March
20, 2015.

On May 20, 2016, the Appeals Council denied Holland’s

request for review, making the ALJ’s decision the Acting
Commissioner’s final decision.

Holland brought an action in
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federal court challenging that decision (the “federal court
action”).

See Holland v. U.S. Soc. Sec. Admin., Acting Comm’r,

16-cv-269-JL (D.N.H. June 22, 2016).
On July 7, 2016, while the federal court action was
pending, Holland filed another claim for social security
benefits.

This second claim was based, in part, on Holland

approaching her 55th birthday, a milestone which when reached
would put Holland in the “advanced age” category under the
social security regulations.

See 20 C.F.R. § 404.1563(e).

The

medical-vocational rules are more favorable to claimants once
they reach advanced age.

See id. § 404.1568(d)(4) (discussing

standards applicable to a claimant once he or she reaches
advanced age).
Holland’s second claim for benefits was approved at the
initial level.

She was awarded benefits effective November 13,

2016, the day before her 55th birthday.

See id. § 416.963(b)

(discussing how a claimant may be considered an advanced age
within “a few days to a few months of reaching” that category).
On May 7, 2017, upon an assented-to motion by the Acting
Commissioner, the district court remanded the federal court
action, which pertained to Holland’s first claim for benefits,
to the Acting Commissioner for further administrative
proceedings.

The Appeals Council subsequently vacated the

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Acting Commissioner’s decision and remanded the case to the ALJ.
See Admin. Rec. at 725.
The Appeals Council directed the ALJ to resolve two issues.
First, the Appeals Council stated that the rationale for
discounting the opinion of Holland’s treating physician, Dr.
Douglas Taylor, was inadequate.

Id.

Second, the Appeals

Council found that there was an unresolved conflict between the
assessed residual functional capacity and the examples of
occupations cited in the decision as representative of those a
person like Holland could perform.

Id.

The Appeals Council

directed the ALJ to consolidate Holland’s initial claim with her
second claim, and to issue a new decision addressing both
claims.

Id. at 726.

On September 28, 2017, the ALJ held a hearing on Holland’s
consolidated claims.

Holland, who was represented by an

attorney, appeared and testified.

Two non-examining impartial

medical experts, Drs. Chukwuemeka Efobi and Peter Schosheim, and
a vocational expert, Christine Spaulding, also appeared and
testified.
II.

The ALJ’s Decision
On November 15, 2017, the ALJ issued a partially favorable

decision.

He agreed with the finding at the initial level that

Holland was disabled and entitled to benefits as of November 13,

5

2016.

The ALJ found that Holland was not disabled prior to that

date.
The ALJ found that Holland had the residual functional
capacity to perform
light work as defined in 20 CFR 404.1567(b) and
416.967(b), except she is able to lift/carry up to 20
pounds occasionally and 10 pounds frequently when
using both arms, but less than 10 pounds when using
her right arm alone; and sitting, standing and walking
for up to 6 hours each in an 8-hour workday. She is
able to frequently balance, stoop, kneel, crouch and
climb ramps and stairs, with no crawling and climbing
ladders, ropes and scaffolds. She must avoid any
overhead reaching with her right upper extremity, and
may occasionally reach forward and perform lateral
reaching with her right upper extremity. She may
occasionally finger, handle and feel with her right
hand. She must avoid hazards such as unprotected
heights and dangerous machinery, and avoid vibrations.
She is able to maintain attention and concentration
for two-hour increments throughout an eight-hour
workday for work requiring simple and short
instructions and familiar tasks.
Admin. Rec. at 618.

In assessing Holland’s RFC, the ALJ

considered Holland’s testimony as to her activities of daily
living and symptoms, as well as her medical records and the
medical opinion evidence.
As directed by the Appeals Council, the ALJ reassessed the
opinion evidence of Holland’s treating physician, Dr. Taylor.2

At the time the ALJ issued his first decision, Dr. Taylor
had offered a single opinion, contained in a medical source
statement dated February 5, 2015. Dr. Taylor offered a second
opinion in another medical source statement dated September 25,
2017, prior to the ALJ’s second decision. As discussed further
below, the ALJ addressed both opinions in his second decision.
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6

The ALJ gave Dr. Taylor’s opinions “less than great weight” for
several reasons, including that his first opinion was conclusory
and that his second opinion contradicted the first.
Nevertheless, the ALJ included in his RFC assessment a
limitation of lifting/carrying less than 10 pounds with
Holland’s right arm, which he found to be consistent with Dr.
Taylor’s opinion and other record evidence.
Relying on the vocational expert’s testimony, the ALJ found
at Step Five that Holland was capable of performing jobs that
exist in the national economy, including usher and ticket taker.
The ALJ concluded that, therefore, Holland was not disabled from
her alleged onset date through November 12, 2016.
The Appeals Council denied Holland’s request for review,
making the ALJ’s decision the Acting Commissioner’s final
decision.

This action followed.
DISCUSSION

Holland contends that the ALJ erred in his evaluation of
the medical opinion evidence.

She also argues that the ALJ

improperly discounted her subjective complaints.

As a result,

Holland contends, the record lacks substantial evidence to
support the ALJ’s RFC assessment.

The Acting Commissioner

argues that the ALJ properly weighed and considered the opinion
evidence and Holland’s complaints.

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I.

Medical Opinion Evidence
Holland contends that the ALJ erred in his evaluation of

several medical opinions in the record.

Specifically, she

argues that the ALJ erroneously gave “less than great weight” to
Dr. Taylor’s opinions and little weight to the opinion of Gregg
Rogers, APRN.

She also contends that the ALJ erred in giving

great weight to the opinions of Dr. Schosheim, an impartial
medical expert, and Dr. Peter Loeser, a consultative examiner.
“An ALJ is required to consider opinions along with all
other relevant evidence in a claimant’s record.”

Ledoux v.

Acting Comm’r, Social Sec. Admin., No. 17-cv-707-JD, 2018 WL
2932732, at *4 (D.N.H. June 12, 2018).

The ALJ analyzes the

opinions of state agency consultants, treating sources, and
examining sources under the same rubric.
§ 404.1527(c).

See id.; 20 C.F.R.

The ALJ must consider “the examining

relationship, treatment relationship (including length of the
treatment relationship, frequency of examination, and nature and
extent of the treatment relationship), supportability of the
opinion by evidence in the record, consistency with the medical
opinions of other physicians,” along with the doctor’s expertise
in the area and any other relevant factors.

Johnson v.

Berryhill, No. 16-cv-375-PB, 2017 WL 4564727, at *5 (D.N.H. Oct.
12, 2017).

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A.

Dr. Taylor

A treating medical source’s opinion about the claimant’s
impairment will be given controlling weight if it “is wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.”

§ 404.1527(c)(2).

An ALJ must give “good reasons” for the weight given to a
treating source’s medical opinion.

Id.

“Those reasons must

offer a rationale that could be accepted by a reasonable mind.”
Dimambro v. US Soc. Sec. Admin., Acting Comm’r, No. 16-cv-486PB, 2018 WL 301090, at *10 (D.N.H. Jan. 5, 2018).

If the ALJ

satisfies that standard, the court will uphold the decision to
discount a treating source’s opinion.

Id.

The ALJ addressed Dr. Taylor’s February 5, 2015 and
September 25, 2017 opinions.

He noted that the 2015 opinion was

limited to an evaluation of Holland’s right upper extremity only
and it stated that Holland was limited to rarely lifting or
carrying less than 10 pounds with her right arm.

The ALJ noted

that in the 2017 opinion, however, Dr. Taylor did not include
the same limitation with respect to Holland’s ability to lift or
carry with her right arm.

Instead, Dr. Taylor wrote “not

applicable” next to the box corresponding to that limitation.

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The ALJ gave Dr. Taylor’s opinion less than great weight
because Dr. Taylor declined “to provide a function-by-function
assessment of [Holland’s] ability to use her right upper
extremity, and his first opinion is inconsistent with his second
opinion.”3

Admin. Rec. at 625.

The ALJ further noted that Dr.

Taylor’s 2015 opinion was “rather conclusory,” with little
support for the right arm limitation.

Id.

Although he gave Dr.

Taylor’s opinions less than great weight for those reasons, the
ALJ stated that he was including a limitation in his RFC
assessment that Holland could occasionally (rather than rarely)
lift/carry less than 10 pounds with her right arm because he
found that limitation generally consistent with Dr. Taylor’s
opinion, as well as the opinion of Dr. Schosheim and Holland’s
own reported daily activities.
Holland takes issue with each of the ALJ’s reasons for
giving Dr. Taylor’s opinions less than great weight.

For

example, Holland argues that Dr. Taylor’s second opinion was not
inconsistent with his first opinion.

Instead, she contends that

the ALJ misinterpreted Dr. Taylor’s statement in his second
opinion of “not applicable” as to the limitation of Holland

The ALJ later elaborated on the inconsistency, finding that
by omitting the right arm limitation in his 2017 opinion, Dr.
Taylor appeared to have changed his mind as to that limitation.
See id.
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rarely lifting/carrying less than 10 pounds with her right arm.
Although the ALJ read that statement as Dr. Taylor offering an
opinion that Holland no longer had that limitation, she argues
that the ALJ should have interpreted the statement as Dr. Taylor
affirming, but declining to elaborate on, his first opinion.
She further argues that Dr. Taylor’s first opinion was not
conclusory because it was based on his treatment history with
Holland and her various ailments.4
Holland’s arguments are unpersuasive.

Unlike the ALJ’s

first decision, in which he discounted Dr. Taylor’s 2015 opinion
simply because Dr. Taylor did not provide a full assessment of
Holland’s overall abilities and limitations, see Admin. Rec. at
22-23, the ALJ offered several justifications in his second
decision for giving less than great weight to Dr. Taylor’s

Holland’s arguments focus on the ALJ’s finding that she
could occasionally lift or carry 10 pounds with her right arm,
rather than rarely doing so, the latter of which she contends
was Dr. Taylor’s opinion. She does not explain how that
distinction is relevant to the ALJ’s decision, however. The
vocational expert testified that Holland could perform the jobs
of ticket taker and usher. See Admin. Rec. at 664-70. Holland
does not explain, and the court does not see, how that testimony
depends on whether Holland could lift or carry 10 pounds
occasionally (as opposed to rarely) with her right arm.
Therefore, any error appears to be harmless.
4

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opinions.5

The ALJ elaborated on his reasons for not fully

crediting the 2015 opinion, and discussed how the 2017 opinion
contradicted the first opinion.

Although Holland urges the

court to adopt a different interpretation of Dr. Taylor’s second
opinion, it is the ALJ’s, not the court’s, job to draw
inferences from and resolve conflicts in the record evidence.
Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991).
Here, the ALJ gave “good reasons” which could be accepted
by a reasonable mind for the weight given to Dr. Taylor’s
opinions.

See Applebee v. Berryhill, No. 1:17-CV-00003-NT, 2017

WL 6523138, at *8 (D. Me. Dec. 20, 2017) (holding that the ALJ
gave good reasons for giving little weight to treating
physician’s opinion because the opinion lacked explanation for
certain limitations and was inconsistent with a subsequent

Holland also argues that the ALJ erred in evaluating Dr.
Taylor’s opinions because the ALJ offered the same explanation
that he used to discount Dr. Taylor’s 2015 opinion in the ALJ’s
first decision—an explanation that the Appeals Council found
“inadequate.” The court disagrees. The ALJ’s first decision
criticized Dr. Taylor’s 2015 opinion for not giving a full
assessment of Holland’s abilities and limitations beyond her
right arm and shoulder, even though Dr. Taylor treated only
Holland’s right shoulder impairment. See Admin. Rec. at 725.
In his second decision, however, the ALJ discounted Dr. Taylor’s
opinions, in part, because Dr. Taylor did not give a full
assessment of Holland’s ability to use her right shoulder. See
id. at 625. Regardless, unlike his first decision, the ALJ
offered several reasons for giving Dr. Taylor’s opinions less
than great weight, as discussed above.
5

12

opinion), report and recommendation adopted, No. 1:17-CV-003-NT,
2018 WL 1548684 (D. Me. Mar. 29, 2018), aff’d, 744 F. App’x 6
(1st Cir. 2018); see also Angie J. v. Berryhill, No. 2:17-CV00148-JHR, 2018 WL 4658679, at *4 (D. Me. Sept. 27, 2018)
(holding that the ALJ gave good reasons for giving little weight
to treating physician’s opinion when the opinion was
inconsistent with physician’s own treatment notes and the
overall record).

“While the record arguably could support a

different conclusion, there is clearly substantial evidence to
support the ALJ’s findings.”

Applebee v. Berryhill, 744 F.

App’x 6 (1st Cir. 2018).
B.

Nurse Rogers

Nurse Rogers completed a medical source statement dated
September 21, 2017.

In his statement, Rogers opined that

Holland was limited to sitting for about two hours and
standing/walking for less than two hours in an eight-hour
workday.

He also opined that Holland would be limited to

lifting/carrying less than 10 pounds occasionally, and would
have limitations in handling, fingering, and reaching.

Rogers

stated that Holland would be unable to handle even low-stress
jobs.
The ALJ gave Rogers’s opinion little weight.

Holland

argues that the ALJ erred in his evaluation of Rogers’s opinion

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because the ALJ “does not state any clear reason” to discount
the opinion.

Doc. no. 7-1 at 12.

To the contrary, however, the

ALJ gave several reasons in support of the weight he gave to
Rogers’s opinion.
The ALJ noted, as a nurse practitioner, Rogers is not an
acceptable medical source and therefore could not offer a
medical opinion under § 404.1527(a).

See 20 C.F.R. §

404.1513(a); Considering Opinions and Other Evidence from
Sources Who Are Not “Acceptable Medical Sources” in Disability
Claims, SSR 06-3p, 2006 WL 2329939 (rescission eff. Mar. 27,
2017).6

With regard to a non-acceptable medical source under SSR

06-3p, an ALJ is obligated only to “explain the weight given to”
his opinion “or otherwise ensure that the discussion of the
evidence . . . allows a claimant or subsequent reviewer to
follow his reasoning.”

Robert L. v. Berryhill, No. 1:17-CV-

00348-JDL, 2018 WL 3599966, at *9 (D. Me. July 27, 2018).
Regardless, even if Rogers were an acceptable medical
source, the ALJ properly addressed his opinion and gave adequate
reasons for affording it little weight.

The ALJ noted that the

opinion was based, in part, on Rogers’s examination of Holland

“The commissioner rescinded SSR 06-03p effective for claims
filed on or after March 27, 2017.” See Jessica B. v. Berryhill,
No. 17-cv-294-NT, 2018 WL 2552162, at *7 (D. Me. June 3, 2018);
(internal citations omitted). Because Holland’s claim was filed
prior to that date, SSR 06-03p was in effect for her claim.
6

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after the period relevant to the determination of disability and
that it included limitations due to Holland’s recently diagnosed
colon cancer, which was not relevant to her claim for
disability.

The ALJ also found Rogers’s opinion to be

“overstated” and without any evidence to support the limitations
he found—specifically the limitation as to Holland’s ability to
lift and carry.

Finally, the ALJ explained that Rogers’s

opinion, which imposed limitations that would result in Holland
being limited to less than sedentary work, was inconsistent with
other medical opinion evidence in the record, and he
specifically referenced testimony by an impartial medical
expert, Dr. Schosheim, who directly addressed Rogers’s opinion.
See Admin. Rec. at 623.
Although Holland categorizes the ALJ’s reasons to discount
Rogers’s opinion as “entirely speculative” and urges the court
to draw certain inferences from the record, the court sees no
error in the ALJ’s evaluation of the opinion.

Therefore,

Holland’s challenge regarding Rogers’s opinion is without merit.
C.

Dr. Schosheim

The ALJ gave great weight to the opinion of Dr. Schosheim,
an impartial medical expert who testified at the hearing.

Dr.

Schosheim opined that Holland had functional limitations
consistent with those included in the ALJ’s RFC assessment.

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The

ALJ found that Dr. Schosheim’s opinion was entitled to great
weight because he was able to review and address all of the
medical records in the evidence through the day of the hearing
as well as Holland’s testimony at the hearing; his opinion was
consistent with other medical opinions in the record; he
supported his opinion with specific citations to the evidence of
record and clinical findings; and his opinion was consistent
with Holland’s testimony as to her activities of daily living.
Holland contends that the ALJ erred in giving great weight
to Dr. Schosheim’s opinion because the opinion did not directly
address Dr. Taylor’s opinion.

That argument is unpersuasive.

Although an ALJ is required to consider every medical opinion in
the record, Holland offers no support for her theory that a
medical expert must specifically address every other medical
opinion in the record.

The ALJ determined that Dr. Taylor’s

opinion was entitled to less than great weight and, as discussed
above, it is the ALJ’s job to resolve conflicts in the evidence.
Holland does not point to any error in the ALJ’s evaluation of
Dr. Schosheim’s opinion.
D.

Dr. Loeser

The ALJ also gave great weight the opinion of Dr. Loeser,
who conducted a physical exam of Holland in November 2016.
Loeser opined that Holland had persistent pain in her right

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Dr.

shoulder which would cause limited range of motion.

The ALJ

noted that although Dr. Loeser did not provide a function-byfunction assessment of Holland’s ability to perform work-related
activities, his opinion as to Holland’s limited range of motion
was consistent with Holland’s treatment records.

Therefore, the

ALJ gave great weight to Dr. Loeser’s opinion and it was
“reflected in the limitations noted above for [Holland’s]
residual functional capacity assessment.”

Admin. Rec. at 624.

Holland challenges the ALJ’s evaluation of Dr. Loeser’s
opinion.

The court need not address Holland’s specific

arguments, however, because even if the ALJ erred in giving Dr.
Loeser’s opinion great weight, that error is harmless.

In

giving Dr. Loeser’s opinion great weight and incorporating the
limitations contained therein, the ALJ assessed a more
restrictive RFC for Holland than he otherwise would have.
Therefore, to the extent the ALJ erred in giving great weight to
Dr. Loeser’s opinion, any error is harmless, and the court need
not address Holland’s challenges.

See Ward v. Comm’r of Soc.

Sec., 211 F.3d 652, 656 (1st Cir. 2000).
For these reasons, the ALJ did not err in evaluating the
medical opinion evidence in the record.7

Holland also states in conclusory fashion that the ALJ erred
in giving great weight to the November 2015 opinion of Dr.
Jonathan Jaffe, a non-examining state agency medical consultant
who opined that Holland had functional limitations consistent
7

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II.

Subjective Complaints
The ALJ found that Holland’s statements concerning her

symptoms were not fully supported by the record.

Holland

contends that the ALJ erred in evaluating her subjective
complaints.
Social Security Ruling (“SSR”) 16-3p provides guidance to
ALJs when they assess claimants’ ”symptoms, including pain,
under 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).”
Berryhill, 892 F.3d 1, 4 (1st Cir. 2018).

Coskery v.

Under the ruling, “an

ALJ determining whether an applicant has a residual functional
capacity that precludes a finding of disability must evaluate
the intensity and persistence of an individual’s symptoms such
as pain and determine the extent to which an individual’s
symptoms limit his or her ability to perform work-related
activities.”

Id. (internal quotation marks omitted).

Moreover, SSR 16–3p provides that, in conducting that
inquiry, the ALJ must 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

with the ALJ’s RFC assessment. To the extent Holland intended
to raise a challenge to the weight the ALJ afforded to Dr.
Jaffe’s opinion, that argument is not sufficiently developed to
be addressed. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) (“It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do
counsel’s work . . . .”).
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sources and other persons; and any other relevant
evidence in the individual’s case record.
Id. (internal quotation marks omitted).
The ALJ found that Holland’s statements concerning the
persistence and intensity of her symptoms were inconsistent with
the objective medical evidence, treatment notes in the record,
and her level of daily activity.

In her motion, Holland

attempts to address some of the inconsistencies by offering
benign explanations, none of which finds support in the record
evidence.8

To the extent Holland suggests that there is actual

record evidence that supports the legitimacy of her subjective
complaints, “such conflicting evidence is for the ALJ to
resolve.”

Alonso v. Colvin, No. 14-cv-429-JL, 2015 WL 5167096,

at *2 (D.N.H. Sept. 3, 2015) (citing Seavey, 276 F.3d at 10);
see Allard v. Astrue, No. CA 10-10143-MLW, 2011 WL 3759746, at
*5 (D. Mass. Aug. 24, 2011).
Holland also criticizes the ALJ for stating that her
subjective complaints were inconsistent with her failure to
follow her doctor’s recommendations to undergo physical therapy

For example, Holland notes that the ALJ discussed Holland’s
level of daily activity and found that it was consistent with
the ability to perform work at the light exertional level.
Holland argues that “the ALJ failed to consider that Ms. Holland
may have structured her reported daily activities to minimize
impact of her pain symptoms and limitations.” Doc. no. 7-1 at
15. She does not point to any record evidence to support, nor
argue in her motion, that she took such action, however.
8

19

and with a gap in her treatment records.

Holland contends that

this contravenes SSR 16-3p’s directive that an ALJ may not find
a claimant’s symptoms inconsistent with her failure to seek
treatment “without considering possible reasons he or she may
not comply with treatment or seek treatment consistent with the
degree of his or her complaints.”

SSR 16-3p, 82 Fed. Reg.

49462, 49462-03 (Oct. 25, 2017).

Holland, however, fails to

offer any reason she did not undergo physical therapy or seek
further treatment and does not point to anything in the record
evidence that would explain her actions.

Therefore, the ALJ’s

statement concerning Holland’s lack of treatment does not run
afoul of SSR 16-3p.

See Christopher B. v. Berryhill, No. 2:17-

CV-00502-JAW, 2018 WL 5786210, at *6 (D. Me. Nov. 4, 2018)
(“Finally, while SSR 16-3p directs that ALJs will ‘consider[ ]
possible reasons [a claimant] may not comply with treatment or
seek treatment consistent with the degree of his or her
complaints’ SSR 16-3p at 745, the plaintiff identifies no
evidence of any reason(s) for failure to seek treatment that the
ALJ ignored.”), report and recommendation approved, No. 2:17-CV00502-JAW, 2019 WL 97019 (D. Me. Jan. 3, 2019); Roxauna M. v.
Berryhill, No. 1:17-CV-00350-NT, 2018 WL 3493075, at *6 (D. Me.
July 20, 2018) (holding that ALJ complied with SSR 16-3p when he
drew negative inferences from the claimant’s failure to follow
prescribed treatment because even though he “did not consider
20

any possible reasons for these purported failures, the plaintiff
identifies none that he could have considered”), aff’d, No.
1:17-CV-350-NT, 2018 WL 4016432 (D. Me. Aug. 22, 2018).
For these reasons, Holland’s arguments concerning the ALJ’s
evaluation of her subjective complaints do not require reversal.
Therefore, the court denies Holland’s motion to reverse and
grants the Acting Commissioner’s motion to affirm.
CONCLUSION
For the foregoing reasons, the plaintiff’s motion to
reverse (doc. no. 7) is denied, and the Acting Commissioner’s
motion to affirm (doc. no. 10) is granted.

The clerk of court

shall enter judgment in accordance with this order and close the
case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
February 7, 2019
cc:

Counsel of Record

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