Paquet v. US Social Security Administration, Acting Commissioner

Filing 12

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

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Nicole Lee Paquet
v.

Civil No. 18-cv-205-JL
Opinion No. 2019 DNH 064

Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration
O R D E R
Nicole Paquet moves to reverse the decision of the Acting
Commissioner of the Social Security Administration (“SSA”) to
deny her application for Social Security disability insurance
benefits, or DIB, under Title II of the Social Security Act, 42
U.S.C. § 423.

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. Scope of Review
The scope of judicial review of the Acting Commissioner’s
decision is as follows:
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).

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).
In addition, “‘the drawing of permissible inference from
evidentiary facts [is] 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.’”
(quoting Rodriguez, 647 F.2d at 222).

Id.

Thus, the court “must

uphold the [Acting Commissioner’s] conclusion, even if the
record arguably could justify a different conclusion, so long as

2

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

record and is summarized here, not repeated in full.
Paquet was born in 1982.
as an after-school teacher.

She has worked as a teacher and
She left her most recent job, as a

middle-school math teacher, on December 6, 2013.

According to

the Disability Report that Paquet filed with the SSA, she
stopped working: (1) because of her physical and mental
conditions; and (2) to take care of her stepson, who had mentalhealth issues of his own.

Paquet’s medical records document

treatment for, among other things, degenerative disc disease,
bulimia, depression, anxiety, and an episode of cardiac
palpitation.
Paquet applied for DIB on January 7, 2013, claiming that
she became disabled on December 9, 2013, as a result of
degenerative disc disease, anxiety, and depression.

She did not

list bulimia as a disabling impairment.
In April of 2014, Dr. Natacha Sochat, a physician and a
state-agency consultant who reviewed Paquet’s medical records,
provided an opinion on Paquet’s physical residual functional

3

capacity (“RFC”).1

In it, Dr. Sochat opined that Paquet had the

RFC to: (1) lift and/or carry and push and/or pull 10 pounds
frequently and 20 pounds occasionally; (2) stand and/or walk
(with normal breaks) and sit (with normal breaks) for about six
hours in an eight-hour workday.

With respect to postural

activities, Dr. Sochat found that Paquet could occasionally
climb ramps/stairs, climb ladders/ropes/scaffolds, balance,
stoop, kneel, crouch, and crawl.

Finally, Dr. Sochat opined

that Paquet had no manipulative, visual, communicative, or
environmental limitations.
Also in April of 2014, Paquet was seen by Dr. Darlene
Gustavson for a consultative psychological examination.2

Dr.

Gustavson diagnosed Paquet with bulimia nervosa, mild alcoholuse disorder, panic disorder without agoraphobia, and mild
recurrent major depressive disorder.

She also offered her

opinions on Paquet’s then-current level of functioning, but

“[R]esidual 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)(1), which governs claims
for DIB) (brackets in the original).
1

“A consultative examination is a physical or mental
examination or test purchased for [a claimant] at [the SSA’s]
request.” 20 C.F.R. § 404.1519. (Unless otherwise indicated,
all references to the Code of Federal Regulations are to the
current, i.e., April 1, 2018, edition.)
2

4

because those opinions are not at issue, there is no need to
describe them in detail.
In May of 2014, Dr. Edward Martin, a state-agency
psychological consultant who reviewed Paquet’s medical records,
assessed her mental RFC.

After acknowledging diagnoses of

affective disorders, anxiety-related disorders, somatoform
disorders,3 and substance-abuse disorders, Dr. Martin opined that
Paquet had no limitations in the realms of social interaction
and adaptation.

With respect understanding and memory, Dr.

Martin opined that Paquet was not significantly limited in two
of three abilities, but was moderately limited in her ability to
understand and remember detailed instructions.

With respect to

sustained concentration and persistence, he opined that Paquet
was not significantly limited in seven of eight abilities,
including the abilities to: (1) perform activities within a
schedule, maintain regular attendance, and be punctual within
customary tolerances; and (2) complete a normal workday and
workweek without interruption from psychologically based
symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods.

Dr. Martin did,

When Dr. Martin conducted his assessment, the SSA
regulations defined “somatoform disorders” as “[p]hysical
symptoms for which there are no demonstrable organic findings or
known physiological mechanisms.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, Listing 12.07 (2016 ed.).
3

5

however, opine that Paquet was moderately limited in her ability
to carry out detailed instructions.
Also in May of 2014, Dr. Alfredo Perez, an internist who
was Paquet’s primary care physician, wrote a letter addressed
“to whom it may concern,” that says, in its entirety: “Given Ms.
Paquet’s current medical status it would be advisable for her to
take a leave of absence from work for one year.”
Transcript (hereinafter “Tr.”) 855.

Administrative

In May of 2015, Dr. Perez

wrote a second letter, “to whom it may concern,” that states, in
pertinent part:
This letter is an addendum to [a] letter written on
5/28/14 in regards to Ms. Paquet being out of work for
a one year period.
As per patient’s request, as so stated, these are the
medical reasons why she was unable to work:
depression, anxiety and chronic lower back pain.
Tr. 448.
Finally, in July of 2015, Wayne Castro, a licensed clinical
mental-health counselor who had seen Paquet for a 50-minute
session every other week for an unstated length of time,
completed a Mental Impairment Questionnaire on Paquet.

Among

other things, Mr. Castro opined that Paquet’s impairments, or
treatment for them, would cause her to miss, on average, more
than four days of work per month.4

Mr. Castro also opined that Paquet had marked difficulties
in maintaining social functioning and marked difficulties in
4

6

The SSA denied Paquet’s application for DIB.
she received a hearing before an ALJ.

Thereafter

At the hearing, the ALJ

posed a series of hypothetical questions to a vocational expert
(“VE”).

In his second question, the ALJ posited a 33-year-old

individual with a bachelor’s degree, the claimant’s work
history, and the following limitations:
[S]he can lift 20 pounds occasionally, ten pounds
frequently; can stand or walk for six, sit for six;
[has] unlimited use of her hands and feet to operate
controls and push and pull; all of the postural
functions are at the occasional [level] . . . . [S]he
is able to remember locations and work like procedures
and understand, recall and carry out short and simple
instructions without special supervision; can pay
attention and maintain concentration for extended
periods; [is] able to adhere to a regular schedule and
maintain attendance within customary expectations;
[can] complete a normal eight hour workday and 40 hour
workweek without unreasonable numbers of
interruptions, breaks, absences or episodes of
distraction; can ask simple questions; [can] request
assistance; [can] accept short and simple instructions
and respond appropriately to supervisory criticism and
to changes in the work setting.
Tr. 88-89.

According to the VE, the person described in the

ALJ’s second hypothetical question could not perform Paquet’s
past work as a teacher or as an after-school teacher, but could

maintaining concentration, persistence, or pace, but those
opinions are not at issue here. See Cl.’s Mem. of Law (doc. no.
8-1) (limiting claim to ALJ’s evaluation of Mr. Castro’s opinion
on absenteeism).
7

perform the following unskilled light-duty jobs: price marker,
mailroom clerk, and laundry classifier.5
Subsequently, in response to two hypothetical questions
from Paquet’s counsel, the VE testified that: (1) a person who
was off task between 10 and 15 percent of the time would not be
able to hold any job;6 and (2) absence from work four or more
days per month would preclude any employment.
After Paquet’s hearing, the ALJ issued a decision in which
he determined that claimant had three severe impairments:
“degenerative disc disease of the lumbar spine; major depressive
disorder, recurrent, mild; and generalized anxiety disorder.”
Tr. 36.

The ALJ did not identify claimant’s bulimia as a severe

impairment, nor did he discuss that impairment in any way.

He

went on to find that none of Paquet’s severe 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

In response to another hypothetical question from the ALJ,
the VE testified that the difficulties with social functioning
and concentration, persistence, or pace to that Mr. Castro
ascribed to Paquet would preclude all work, if those limitations
“seriously interfered with the ability to function
independently, appropriately, and effectively on a sustained
basis,” Tr. 90.
5

The context of this question makes clear that claimant’s
counsel derived the limitation in it from claimant’s report to
Dr. Gustavson that she took frequent naps. See Tr. 91, 418.
6

8

are per se disabling.

Next, the ALJ provided the following

assessment of Paquet’s RFC:
[T]he claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b)
except the claimant can stand and/or walk for up to
six hours in an eight hour workday and can sit for up
to six hours in an eight hour workday. The claimant
has unlimited use of the feet but can stoop, kneel,
crouch, balance, and crawl occasionally. The claimant
can climb ramps and stairs in addition to ropes,
ladders, and scaffolds occasionally. The claimant can
understand, recall, and carry out short and simple
instructions without special supervision. The
claimant can pay attention and maintain attention for
extended periods. The claimant can complete a normal
eight hour workday and 40 hour work week without an
unreasonable number of interruptions, breaks,
absences, or episodes of distraction. The claimant
can adhere to a regular schedule and maintain
attendance within customary expectations. The
claimant can respond appropriately to supervisor
criticism.
Tr. 39.

Based upon the RFC he assessed, and the testimony of

the VE, the ALJ determined that Paquet was unable to perform her
past work but could do the jobs of price marker, laundry
classifier, and mailroom clerk.

Consequently, the ALJ

determined that Paquet was not under a disability from December
9, 2013, through May 26, 2016, which was the date of his
decision.
III. Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for that benefit; (2) not have reached

9

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

42 U.S.C. § 423(a)(1)(A)-(D).

The only question

in this case is whether the ALJ correctly determined that Paquet
was not under a disability from December 9, 2013, through May
26, 2016.
To decide whether a claimant is disabled for the purpose of
determining eligibility for DIB, an ALJ is required to employ a
five-step sequential evaluation process.

See 20 C.F.R. §

404.1520.
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, which outlines the
same five-step process as the one prescribed in 20 C.F.R. §
404.1520).
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
10

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

She must prove that she

is disabled by a preponderance of the evidence.

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)).7

Finally,

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

Paquet’s Claims

Paquet claims that the ALJ erred at step 2 and also made
three different errors in assessing her RFC.

Paquette’s claims

all lack merit.
1.

Step Two

Paquet begins her step-2 claim by asserting that “[t]he ALJ
stated in his decision that [her] anxiety and depression were
nonsevere impairment(s) because the evidence was insufficient to

At step 5, 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-5 determination is not at issue here, so
there is no need to describe the mechanics of step 5.
7

11

show that her anxiety and depression imposed more than a minimal
[e]ffect on her ability to perform basic work-related tasks.”
Cl.’s Mem. of Law (doc. no. 8-1) 11-12 (emphasis added).
However, what the ALJ stated in his decision was that Paquet had
three severe impairments, including “major depressive disorder,
recurrent, mild; and generalized anxiety disorder.”

Tr. 36.

In

other words, the ALJ expressly stated that Paquet’s anxiety and
depression were severe impairments.
In what seems to be a generous reading of Paquet’s motion
to remand, the Acting Commissioner understands Paquet to be
claiming that the ALJ erred by failing to find that her bulimia
was a severe impairment.

If that is Paquet’s claim, it fails.

Paquet correctly points out that “the Step 2 severity
requirement is . . . a de minimis policy, designed to do no more
than screen out groundless claims.”

Riel v. Berryhill, No. 18-

cv-278-LM, 2019 WL 636883, at *6 (D.N.H. Jan. 25, 2019)
(citations omitted) (quoting McDonald v. Sec’y of HHS, 795 F.2d
1118, 1124 (1st Cir. 1986)), R. & R approved by 2019 WL 635408
(Feb. 13, 2019).

However, “[e]rrors at Step Two are harmless as

long as the ALJ found at least one severe impairment, continued
on with the sequential analysis, and considered the effect of
all impairments [both severe and nonsevere] on the claimant’s
functional capacity.”

Id. (citations omitted).

12

Here, the ALJ found that Paquet had both severe and
nonsevere mental impairments and continued on with the
sequential analysis.

Claimant is correct in observing that the

ALJ did not mention her bulimia in his decision.
gave the ALJ no reason to mention that impairment.

But Paquet
She did not

list bulimia as a disabling impairment in her application for
benefits.

She did not mention bulimia at her hearing.

And in

her motion to reverse the ALJ’s decision, she identifies no
evidence in the record from which the ALJ could have drawn
functional limitations resulting from her bulimia.

Thus, even

if Paquet is correct that it was a mistake for the ALJ not to
have deemed her bulimia a severe impairment – and she points to
no evidence that bulimia limited her ability to perform workrelated activities – that error would have been harmless.

See

Venus v. Berryhill, No. 17-cv-482-PB, 2019 WL 157296, at *7-8
(D.N.H. Jan. 9, 2019) (ruling that ALJ’s failure to mention
claimant’s medically determinable impairment of obesity anywhere
in his or her decision was not reversible error where claimant
did not: identify obesity as disabling impairment in his
application, testify about obesity-related limitations at his
hearing, allege how obesity limited his ability to work, or
produce any evidence of obesity-related functional limitations
greater than those in the ALJ’s RFC assessment) (citing Desilets

13

v. Colvin, No. 15-cv-303-LM, 2016 WL 1275037, at *5-6 (D.N.H.
Apr. 1, 2016)).
In sum, the fact that the ALJ did not deem claimant’s
bulimia to be a severe impairment at step 2 gives the court no
reason to remand this matter.
2.

RFC Assessment

Paquet claims that the ALJ erred in assessing her RFC by:
(1) improperly weighing the opinions of her treating sources;
(2) improperly assessing the credibility of her subjective
complaints; and (3) inaccurately characterizing the facts in the
record and, consequently, making an RFC assessment that was not
supported by substantial evidence.

The court considers each

component of Paquet’s claim in turn.
a.

Treating Source Opinions

Paquet claims that the ALJ failed to weigh the opinions of
her primary care provider, Dr. Perez, and her therapist, Wayne
Castro, in accordance with the applicable regulations.8

The

Claimant also mentions Dr. Gustavson’s opinion in this
section of her brief. However, Dr. Gustavson was not a treating
source, and claimant does not develop an argument that the ALJ
erroneously evaluated Dr. Gustavson’s opinion. Accordingly,
claimant has waived any argument that the ALJ improperly weighed
Dr. Gustavson’s opinion. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) (explaining that “issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived”) (citation omitted).
8

14

court begins with the regulations and then turns to the opinions
at issue.
The Regulations.

The regulations in force when the ALJ

rendered his decision in this case describe a hierarchy under
which, as a general matter: (1) the greatest weight, and
sometimes controlling weight, is given to opinions from medical
sources who have treated a claimant; (2) lesser weight is given
to opinions from sources who have examined but not treated the
claimant; and (3) the least weight of all is given to opinions
from sources who have neither treated nor examined the claimant.
See 20 C.F.R. § 404.1527(c)(1)-(2).9

The regulations go on to

describe a series of factors that an SSA adjudicator must
consider when determining how much weight to give a medical
opinion.

See 20 C.F.R. § 404.1527(c)(2)-(6).

However, the regulations define the term “medical opinion”
to exclude opinions on issues reserved to the Commissioner, such
as “[a] statement by a medical source that [a claimant is]
‘disabled’ or ‘unable to work.’”

20 C.F.R. § 404.1527(d)(1).

While treating-source opinions on issues reserved to the
Commissioner are “never entitled to controlling weight or

The rules in 20 C.F.R. § 404.1527 apply to claims, such as
the one in this case, that were filed before March 27, 2017.
For claims filed after that date, the rules for evaluating
medical opinion evidence are set out in 20 C.F.R. § 404.1520c.
9

15

special significance,” Social Security Ruling (“SSR”) 96-5p,
1996 WL 374183, at *2 (S.S.A. July 2, 1996),10 such opinions
“must never be ignored,” id. at *3, and an ALJ “must explain the
consideration given to [such] opinion(s),” id. at *6.
Dr. Perez’s Opinions.

The opinions by Dr. Perez that are

at issue here appear in the two letters quoted above.

Those

letters communicate nothing more than opinions on issues
reserved to the Acting Commissioner.11

In his decision, the ALJ

noted that, and then went on to say that Dr. Perez’s opinions:
(1) were not supported by Paquet’s mental-health treatment
records; (2) were inconsistent with her traveling back and forth
from New Hampshire to Canada and Florida; and (3) were
inconsistent with her statement that she stopped working in 2013
in order to care for her stepson.

See Tr. 45.

In other words,

as directed by SSR 96-5p, the ALJ “consider[ed] the
supportability of [Dr. Perez’s] opinion[s] and [their]
consistency with the record as a whole,” 1996 WL 374183, at *3,
when deciding to give them “little weight,” Tr. 45.

Thus, the

SSR 96-5p was rescinded on March 27, 2017, but was in
effect when the ALJ rendered his decision in this case. See
Rescission of Social Security Rulings 96-2p, 96-5p, and 06-3p,
82 Fed. Reg. 15263-01, at *15263, 2017 WL 1105348 (S.S.A. Mar.
27, 2017).
10

For her part, claimant does
Dr. Perez’s opinions fall under 20
opinions on issues reserved to the
§ 404.1527(a)(1) (standard medical
11

16

not appear to recognize that
C.F.R. § 404.1527(d) (medical
Commissioner) rather than
opinions).

court cannot agree with claimant that the ALJ failed to evaluate
Dr. Perez’s opinions according to the SSA’s regulations and
guidance.

That, in turn, reduces Paquet’s claim to an assertion

that when considering the appropriate factors, the ALJ erred in
his resolution of conflicts in the evidence.

But the resolution

of conflicts in the evidence is for the ALJ, not the courts.
See Purdy, 887 F.3d at 13.

Accordingly, the ALJ’s evaluation of

Dr. Perez’s opinions provides no basis for a remand.
Mr. Castro’s Opinion.

In his Mental Impairment

Questionnaire, Mr. Castro opined that if Paquet were working,
she would miss more than four days of work each month because of
her impairments or treatment for them.

At Paquet’s hearing, the

VE testified that a person who needed to miss that much work
would be unable to do any job.
In his decision, the ALJ gave Mr. Castro’s opinion limited
weight and explained his evaluation of that opinion this way:
“This opinion is accorded little weight as it was made by a nonacceptable medical source and there are no clinical observations
in the record to support it.”

Tr. 44.

Claimant counters by

pointing to a Manchester School District report of her leavetime balance for the 2013-2014 school year.

That report shows

that during September, October, and November of 2013, i.e., the
three months of that school year she worked full time, she used
a total of five days of sick leave (two in September, one in
17

October, and two in November) and one day of personal leave (in
November).12
Under 20 C.F.R. § 404.1527(f)(1), the ALJ was obligated to
evaluate Mr. Castro’s opinion by applying the factors listed in
§ 404.1527(c)(1)-(6).

He did so, and gave that opinion little

weight because it was not well supported by “medical signs and
laboratory findings,” 20 C.F.R. § 404.1527(c)(3).

Claimant does

not challenge the ALJ’s supportability finding by identifying
medical signs or laboratory findings that support Mr. Castro’s
opinion.

Rather, she argues that Mr. Castro’s opinion was

“consistent . . . with . . . [another aspect of] the record as a
whole,” 20 C.F.R. § 404.1529(c)(4), i.e., her employment
records.

But those records show that Paquet used three days or

less of sick and personal leave in each of the three months she
worked full-time during the 2013-2014 school year, which is
hardly consistent with Mr. Castro’s opinion that she would miss
more than four days of work each month due to her impairments or
treatment for them.

Thus, there is nothing in the way that the

In her memorandum, claimant points to a notation on her
leave report indicating that she accrued 23.5 days of unpaid
leave during the 2013-2014 school year, but all of that leave
accrued after she took a leave of absence on December 9, so it
not clear how that figure casts any light on the amount of time
she would need to take off from work if she were still working.
12

18

ALJ handled Mr. Castro’s opinion on absenteeism that warrants a
remand.13
b.

Subjective Complaints

Next, Paquet claims that “the ALJ erred in assessing [her]
subjective complaints and credibility.”
no. 8-1) 14.

Cl.’s Mem. of Law (doc.

The court begins by describing the applicable

legal principles and then turns to Paquet’s challenges to the
manner in which the ALJ assessed her subjective complaints.
But first, it is important to note that the ALJ did not
assess Paquet’s credibility.

To be sure, both the ALJ and

Paquet cited and relied upon SSR 96-7p, 1996 WL 374186 (S.S.A.
July 2, 1996), which uses the concept of credibility, rather
than SSR 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016), which
was issued about two months before the ALJ’s decision, rescinded
SSR 96-7p, and disavowed the concept of credibility.

But even

though he cited SSR 96-7p rather than SSR 16-3p, the ALJ never
used the term “credibility” in his decision.

Thus, claimant’s

Paquet challenges only the ALJ’s evaluation of Mr.
Castro’s opinion on absenteeism, see supra, note 4, but the
reasons the ALJ gave for discounting that opinion apply with
equal force to Mr. Castro’s opinions on Paquet’s capacities for
social interaction and for maintaining concentration,
persistence, or pace.
13

19

use of that term in her memorandum of law is a bit of a red
herring.14
Legal Principles.

When evaluating a claimant’s symptoms,

an ALJ must employ a two-step process.

The first step is to

determine whether the claimant has a medically determinable
impairment that could reasonably be expected to produce her
alleged symptoms.

See SSR 16-3p, 2016 WL 1119029, at *3.

If

so, the second step in the analysis is to evaluate the intensity
and persistence of the claimant’s symptoms and determine the
extent to which they limit her ability to perform work-related
activities.
When undertaking the second step, an ALJ must first
determine whether the claimant’s alleged symptoms are consistent
with the objective medical evidence.

If not, then the ALJ must

consider the other evidence in the record, including “statements
from the individual, medical sources, and any other sources that
might have information about the individual’s symptoms,
including agency personnel, as well as the factors set forth in
[the SSA’s] regulations.”

Id. at *5.

Those factors, set forth

Moreover, because “SSR 16-3p is materially the same as
its predecessor,” Tellier v. U.S. Soc. Sec. Admin., Acting
Comm’r, No. 17-cv-184-PB, 2018 WL 3370630, at *6 n.6 (D.N.H.
July 10, 2018), the mere fact that the ALJ in this case relied
“upon SSR 96-7p is not, standing alone, a reversible error,”
Venus, 2019 WL 157296, at *14.
14

20

in 20 C.F.R. § 404.1529(c)(3), and sometimes called the Avery
factors, see 797 F.2d at 29, include:
1. Daily activities;
2. The location, duration, frequency, and intensity of
pain or other symptoms;
3. Factors that precipitate and aggravate the
symptoms;
4. The type, dosage, effectiveness, and side effects
of any medication an individual takes or has taken to
alleviate pain or other symptoms;
5. Treatment, other than medication, an individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment an individual
uses or has used to relieve pain or other symptoms
(e.g., lying flat on his or her back, standing for 15
to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s
functional limitations and restrictions due to pain or
other symptoms.
SSR 16-3p, 2016 WL 1119029, at *7.
Here, the ALJ first determined that Paquet’s “medically
determinable impairments could reasonably be expected to cause
[her] alleged symptoms.”

Tr. 41.

Then he found that her

“statements concerning the intensity, persistence and limiting
effects of [her] symptoms [were] not entirely consistent with
the medical evidence and the other evidence in the record,” id.
When making that finding, the ALJ paid considerable attention to
the objective medical evidence and also discussed many of the

21

Avery factors.

In other words, the ALJ performed precisely the

kind of analysis that is required by SSR 16-3p.
Even so, Paquet argues that the ALJ: (1) erroneously found
that her activities of daily living (“ADLs”) were inconsistent
with her subjective complaints; (2) failed to discuss the side
effects of her medications;15 (3) improperly relied upon a
purported failure to follow medical advice; and (4) incorrectly
found that a payment she received from her former employer,
after she stopped working, was inconsistent with her statement
that her symptoms rendered her unable to work.16

The court

considers each claim in turn.
Activities of Daily Living.

Paquet’s most fully developed

claim is that when the ALJ considered her ADLs, in the context
of assessing the limiting effects of her primary symptom, i.e.,
pain, he ignored some evidence of impaired functioning and

This claim, and the two that follow, appear in a section
of claimant’s brief in which she contends that the ALJ’s RFC
assessment was not supported by substantial evidence. But these
claims fall more naturally under her contention that the ALJ
erred in his assessment of her symptoms. Accordingly, the court
considers them here, rather in the section that follows.
15

Claimant also devotes a paragraph in this section of her
brief to a discussion of her bulimia, but while she cites
medical records that refer to her diagnosis, she does not appear
to identify any record evidence of bulimia symptoms that reduced
her capacity to work. So the point of the bulimia discussion in
a section of her brief devoted to the ALJ’s assessment of her
subjective complaints is not at all clear, nor does she say
anything in that discussion that merits a remand.
16

22

erroneously inferred from certain other evidence that she was
more capable than she actually was.
In support of this claim, Paquet identifies evidence
concerning her ADLs that, in her view, demonstrates that she is
disabled by her symptoms.

However, in his decision, the ALJ

identified contrary evidence, including: (1) Paquet’s report to
a doctor that “she was independent with all activities of daily
living, which is inconsistent with her allegations of needing
help,” Tr. 41; (2) Paquet’s own report that she quit her
teaching job in part to take care of her mentally ill stepson;
(3) her ability to travel to Florida and Canada; and (4) her
ability to help her husband with work on their vacation home in
Canada.

And in an earlier section of his decision, the ALJ

noted that Paquet did all the business bookkeeping associated
with the operation of four apartment buildings that she and her
husband owned.
According to claimant, the ALJ erred in assessing her
symptoms because “the evidence [concerning her ADLs], when
viewed as a whole in light of applicable law, supports her
credibility and supports her disability claim.”
Law (doc. no. 8-1) 16.

Cl.’s Mem. of

But that is not the legal standard.

Rather, 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
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evidence.”

Tsarelka, 842 F.2d at 535.

Here, the ALJ’s

determination that claimant’s ADLs were inconsistent with her
claim to be disabled by her symptoms is supported by substantial
evidence, i.e., evidence that a reasonable mind could accept as
adequate to support his conclusion, see Purdy, 887 F.3d at 13.
Thus, Paquet’s first approach to claiming that the ALJ
mishandled her subjective complaints provides the court with no
grounds for a remand.
Side Effects from Medication.

Paquet claims that “the ALJ

never discussed [the] reported side effects from medications she
listed in a Function Report.”
21-22.

Cl.’s Mem. of Law (doc. no. 8-1)

Claimant is correct in her observation that the ALJ’s

decision does not mention the three side effects she listed in
her Function Report.

But, her two-sentence argument on this

point is insufficiently developed to merit the court’s
attention.

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, create the ossature for the argument, and put
flesh on its bones.”).

Moreover, an

ALJ is not required to address every Avery factor in
[his] written decision for [his] evaluation to be
supported by substantial evidence. Ault [v. Astrue],
[No. 10-cv-553-JL,] 2012 WL 72291, at *5 [(D.N.H. Jan.
10, 2012)]. Instead, the decision need only “contain
specific reasons for the weight given to the
individual’s symptoms, be consistent with and
24

supported by the evidence, and be clearly articulated
so the individual and any subsequent reviewer can
assess how the adjudicator evaluated the individual’s
symptoms.” SSR 16-3p, 2016 WL 1119029, at *9
(emphasis added); see Anderson v. Colvin, 2014 DNH
232, 2012 WL 72291, at *7 (D.N.H. Nov. 4, 2014).
Freddette v. Berryhill, No. 17-cv-672-PB, 2019 WL 121249, at *9
(D.N.H. Jan. 7, 2019).

The ALJ’s discussion of claimant’s

symptoms, which touches on many of the Avery factors, meets the
standard described in Fredette.
In light of Zannino and Fredette, Paquet’s side-effects
claims gives the court no reason to remand this matter.
Failure to Follow Medical Advice.

Paquet claims that

“[t]he ALJ asserted [that she] failed to follow medical advice
because she had discontinued taking Ibuprofen, as she was
instructed to do by Dr. Kleeman prior to back surgery.”
Mem. of Law (doc. no. 8-1) 22.

Cl.’s

Like Paquet’s side-effects

claim, her one-sentence medical-advice claim is insufficiently
developed to merit the court’s attention.
at 17.

See Zannino, 895 F.2d

Moreover, the factual premise of Paquet’s medical-advise

claim is faulty.

The ALJ did note that “the claimant reported

that she had stopped taking Ibuprofen,” Tr. 41, but he did not
label that decision a deviation from medical advice.

And, in

any event, advice or no advice, being able to get by without a
pain medication is evidence of the intensity of a person’s pain.

25

Thus, Paquet’s medical-advice claim provides no basis for a
remand.
2014 Income.

At step 1 of the sequential evaluation

process, the ALJ found that Paquet had “engaged in substantial
gainful activity after [her] alleged onset date,” Tr. 35,
because her “earnings record reflect[ed] that she was employed
[by] the Manchester School District in the first quarter of 2014
and earned $4,037.00 in that quarter,” id.

Later on in his

decision, the ALJ used claimant’s purported work after December
9, 2013, as evidence suggesting that she was not as limited by
her symptoms as she alleged she was.

See Tr. 43.

However,

Paquet asserts, and respondent concedes, that the money claimant
received in 2014 from the Manchester School District “was money
owed to [her] by a previous employer and [that] the school
system provided a letter stating that her last day of employment
was December 6, 2013,” Cl.’s Mem. of Law (doc. no. 8-1) 23
(citing Tr. 224).

Thus, all agree that substantial gainful

employment after claimant’s alleged onset date – of which there
was none – did not give the ALJ a valid basis for discounting
the limiting effects of her symptoms.
However, the ALJ identified more than enough other evidence
to support his conclusion on this point.

First, he identified

objective medical evidence tending to show that claimant’s
symptoms were not as limiting as she alleged.
26

Then, as the

court has noted, the ALJ identified several ADLs that undermined
her allegations.

Beyond that, the ALJ also discussed the

effectiveness of claimant’s medications and the other forms of
treatment she had used to address her symptoms.

Given that it

is the job of the ALJ to weigh the evidence, see Purdy, 887 F.3d
at 13, and given the ALJ’s identification of substantial
evidence to support his conclusion, the court cannot say that
his incorrect attribution of claimant’s 2014 income to
substantial gainful activity merits a remand.
c.

Describing the Record

Paquet’s final claim is somewhat difficult to characterize.
It bears this heading: “The ALJ’s Residual Functional Capacity
Assessment Was Not Supported by Substantial Evidence in the
Record,” Cl.’s Mem. of Law (doc. no. 8-1) 20, and it lists five
criticisms of the ALJ’s decision.

The court has considered

three of those criticisms in the context of its discussion of
the ALJ’s assessment of claimant’s symptoms.

Thus, only two

remain.
First, Paquet claims that the ALJ erred by failing to
consider her bulimia when assessing her RFC.

However, as the

court has noted, claimant has identified no evidence of
functional limitations resulting from that impairment, so the
ALJ cannot be faulted for declining to consider Paquet’s bulimia
when assessing her RFC.

Second, Paquet claims that “[t]he ALJ
27

erroneously concluded that he accorded limited weight to the
opinion letter from Ms. Anne Talbot Kleeman,” Cl.’s Mem. of Law
(doc. no. 8-1) 22.

That claim is unclear, at best, and in any

event, claimant does not indicate how the ALJ’s evaluation of
Ms. Kleeman’s letter resulted in an RFC that was not supported
by substantial evidence.

In short, neither of the two claims

described in this section merits a remand.
IV. Conclusion
Because the ALJ has committed neither a legal nor a factual
error in evaluating Paquet’s claim, see Manso-Pizarro, 76 F.3d
at 16, her motion for an order reversing the Acting
Commissioner’s decision, document no. 8, is denied, and the
Acting Commissioner’s motion for an order affirming her
decision, document no. 9, is granted.

The clerk of the court

shall enter judgment in favor of the Acting Commissioner and
close this case.
SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
April 4, 2019
cc:

Judith E. Gola, Esq.
Jessica Tucker, Esq.

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