Tremblay v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Bryant Thomas Tremblay
v. 	Case No. 18-cv-381-JL
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration
REPORT AND RECOMMENDATION
Pursuant to 42 U.S.C. § 405(g), Bryant Thomas Tremblay
moves to reverse the Acting Commissioner’s decision to deny his
application for Social Security disability insurance benefits,
under Title II of the Social Security Act, 42 U.S.C. § 423.
(Doc. No. 8). 	The Acting Commissioner, in turn, moves for an
order affirming 	her decision. 	(Doc. No. 10). 	Those motions
are before this magistrate judge for a report and
recommendation. 	For the reasons that follow, the decision of
the Acting Commissioner, as announced by the Administrative Law
Judge (“ALJ”) should be affirmed.
I. Applicable legal standard
The court limits its review of a final decision of the SSA
“to determining whether the ALJ used the proper legal standards
and found facts upon the proper quantum of evidence.” 	Ward v.
Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). 	It
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“review[s] questions of law de novo, but defer[s] to the
Commissioner’s findings of fact, so long as they are supported
by substantial evidence,” id., that is, “such evidence as a
reasonable mind might accept as adequate to support a
conclusion.” 	Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotations omitted). 	“Substantial-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.” 	Purdy v.
Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (quoting Bath Iron
Works Corp. v. U.S. Dep’t of Labor, 336 F.3d 51, 56 (1st Cir.
2003)).
Thus, though the evidence in the record may support
multiple conclusions, the court will still uphold the ALJ’s
findings “if a reasonable mind, reviewing the evidence in the
record as a whole, could accept it as adequate to support his
conclusion.” 	Irlanda Ortiz v. Sec’y of Health & Human Servs.,
955 F.2d 765, 769 (1st Cir. 1991). 	Ultimately, the court “must
uphold a denial of social security . . . benefits unless ‘the
[Acting Commissioner] has committed a legal or factual error in
evaluating a particular claim.’” 	Manso-Pizarro v. Sec’y of
Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per
curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
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II. Background1
The ALJ invoked the requisite five-step sequential
evaluation process in assessing Tremblay’s request for benefits.
See 20 C.F.R. §§ 404.1520. After determining that he met the
Social Security Act’s insured status requirements and had not
engaged substantial gainful activity after the alleged onset of
his disability on December 31, 2015, see 20 C.F.R. §§ 404.1571
et seq., 416.971 et seq., the ALJ analyzed the severity of
Tremblay’s impairments. 	At this second step, the ALJ concluded
that Tremblay had the following severe impairments: bipolar
disorder and panic disorder with agoraphobia (Admin. R. at 13-
14).
At the third step, the ALJ found that Tremblay’s severe
impairments did not meet or “medically equal” the severity of
one of the impairments listed in the Social Security
regulations. 	(Id. at 14); see 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526.
After reviewing the medical evidence of record, medical
opinions, and Tremblay’s own statements, the ALJ concluded that
Tremblay retained the residual functional capacity (RFC) to
1 The court recounts here only those facts relevant to the
instant appeal. 	The court incorporates by reference claimant’s
Statement of Material Facts (Doc. No. 8-2). See LR 9.1(b).
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perform a full range of work at all exertional levels, but with
the following non-exertional limitations:
The claimant is capable of simple routine tasks in two
hour blocks, but no fast past (sic) production
standards. 	The claimant can adapt to occasional
changes in the work setting and engage in occasional
decision making. 	The claimant should only have
occasional interaction with the public, coworkers and
supervisors.
(Id. at 15).
The ALJ found that, limited in this manner, Tremblay would
not be able to perform his past relevant work. 	(Id. at 22). The
ALJ found, however, that Tremblay could perform other jobs that
exist in the national economy, such as housekeeping and
cleaning, garment sorter, and flagger. 	(Id. at 23-24). 	The ALJ
accordingly found that Tremblay was not disabled within the
meaning of the Social Security Act during the relevant time
period. 	(Id. at 24); 20 C.F.R. §§ 404.1520(g).
III. Analysis
Tremblay challenges the ALJ’s decision on two grounds: 1)
that the ALJ erroneously evaluated opinion evidence in
formulating his RFC; and 2) that the ALJ erroneously evaluated
Tremblay’s testimony regarding his symptoms and limitations in
forming his RFC. 	As explained below, the court finds no error.
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A. 	Opinion evidence
1. 	State agency consultants
a. 	Dr. Burns
Tremblay asserts that the ALJ erred in giving great weight
to the opinion of state agency consultative examiner Thomas F.
Burns, Ph.D., who found that Tremblay had a recurrent mild to
moderate major depression impairment, that he “seems able to
interact with others competently and without significant anxiety
most of the time,” and that he seems able to understand and
abide by common work rules and regulations.” 	(Admin. R. at 446-
48). 	Tremblay claims that Dr. Burns reviewed an insufficient
amount of medical evidence and failed to consider the episodic
nature of Tremblay’s mental illness. 	Tremblay, does not,
however, indicate which records would have changed Burns’s
opinion. 	See Zackowski v. Berryhill, 2018 DNH 184, 12, 2018 WL
4350276 (upholding weight given to state agency examiner’s
opinion where claimant did not point to any evidence suggesting
greater limitations than found by the examiner).
Moreover, there is nothing in the record to suggest that
Dr. Burns did not consider the episodic nature of Tremblay’s
condition, or that he “labor[ed] under a misunderstanding
concerning the nature of mental illness.” 	Baer v. Astrue, No.
2:11-cv-313-DBH, 2012 WL 3042946, at *4 (D. Me. July 2, 2012).
Indeed, his report notes Tremblay’s “varying degrees of
depression.” (Id. at 448). 	Ultimately, Dr. Burns noted that his
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examination showed Tremblay’s mental status to be normal, and
that he had good memory and intact social skills. (Id. at 18).
The ALJ concluded that Dr. Burns’s opinion was consistent with
and supported by the overall record. 	The ALJ committed no
reversible error.
b. 	Dr. Stenslie
Tremblay next argues that the ALJ should not have given
partial weight to the opinion of non-examining state agency
consultant Craig Stenslie, Ph.D. 	Dr. Stenslie opined that
Tremblay could deal adequately with instructions, sustain “an
ordinary routine” and “extended attention,” could complete a
normal work day and week, could work in coordination with
others, and could deal adequately with change in a low stress
situation.” 	(Admin. R. at 20, 77-86). 	In assigning only
partial weight to Dr. Stenslie’s opinion, the ALJ ultimately
accepted only his finding that Tremblay is limited to low-stress
situations. 	At the same time, the ALJ rejected Dr. Stenslie’s
opinion that Tremblay had no limitation on social interactions.
Instead Tremblay’s RFC recognized Tremblay’s limitation and
restricted him to only occasional social interaction. (Id. at
15). 	The ALJ explained that she reached this conclusion – and
partially rejected Dr. Stenslie’s opinion – after Tremblay
testified that social interaction could be a source of stress
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for him. 	(Id. at 18, 19, 65). 	The ALJ supportably weighed Dr.
Stenslie’s opinion.
2. Claimant’s treating providers
Four of claimant’s treating physicians completed mental
impairment questionnaires. 	Each indicated on their respective
forms that, inter alia, Tremblay was more severely limited than
was eventually reflected in his RFC and that he would miss more
than four days of work per month, which would preclude Tremblay
from holding a job. 	Tremblay asserts that the ALJ gave these
opinions insufficient weight. 	The court finds no error in the
ALJ’s assessment of claimant’s treating physicians’ opinions.
a. Margaret Bahder, M.D.
Dr. Bahder opined that Tremblay’s bipolar disorder caused
marked limitations in his ability to understand, remember, and
carry out detailed instructions, and an extreme limitation in
his ability to deal with the stress of skilled or semi-skilled
work. (Admin. R. at 783-84). 	She also concluded that Tremblay
had marked limitations in his ability to complete a normal
workday or week without interruption from his mental health
symptoms or cope with normal work stress. (Id. at 784). 	“Marked
limitations” were defined as those which seriously limited a
particular function; “extreme limitations” are those which
prevent functioning on a sustained basis. (Id. at 783).
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Ultimately, as previously noted, Dr. Bahder concluded that
Tremblay’s symptoms would cause him to be absent from work more
than four days per month. 	(Id. at 785).
As a treating physician, Dr. Bahder’s opinions are entitled
to “controlling weight” if they are “well-supported by medically
acceptable clinical and laboratory diagnostic techniques” and
they are not inconsistent with the other substantial evidence”
in the record. 	20 C.F.R. § 404.1527(c)(2). 	The ALJ must give
“good reasons” for the weight assigned to treating physicians’
opinion. 	Id.
Tremblay argues that the ALJ erred by giving only “little
weight” to Dr. Bahder’s opinions and by failing to give “good
reasons” for doing so. 	The court disagrees. 	The ALJ observed
that Dr. Bahder’s opinion was inconsistent with the record as a
whole and not supported by progress notes. 	(Id. at 20-21). 	The
ALJ supported this conclusion by citing records from another
provider in Dr. Bahder’s practice showing various occasions
where Tremblay’s symptoms were less severe. 	(Id. at 21). 	The
claimant suggests that the ALJ improperly “cherry-picked”
records, which obscured the episodic nature of a bipolar
disorder. (Clmt. Mem., doc. no. 8-1, at 10). 	But as he also
concedes, the ALJ also cited “progress notes that have
repeatedly shown normal mental status exams findings and periods
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of improvement . . .” 	(Id.; Admin R. at 21, 503-71). 	This does
not reflect “cherry-picking.” 	The ALJ’s reasoning for the
weight assigned to Dr. Bahder is sufficient.
b. David Schmidt, M.D.
The ALJ also gave “little weight” to a second treating
physician, Dr. Schmidt, who opined that Tremblay had limitations
that exceeded the ALJ’s RFC with respect to carrying out
instructions, coping with stress and work attendance. (Admin. R.
at 21). 	But as with Dr. Bahder, the ALJ adequately explained
her reasons for the weight assigned to Dr. Schmidt’s opinion.
First, the ALJ supportably found that Dr. Schmidt’s opinion was
internally inconsistent (Id. at 21). 	For example, although Dr.
Schmidt opined that Plaintiff had “marked” limitations in his
ability to interact with others, he also opined that Plaintiff
had only a “mild” limitation using public transportation and
only “moderate” limitations interacting appropriately with the
general public (Id.; Admin. R. at 795). 	Next, the ALJ found
that Dr. Schmidt’s opinion was inconsistent with the record as a
whole, including Plaintiff’s daily activities (Id. at 21). 	In
the end, the basis for the weight the ALJ assigned to Dr.
Schmidt’s opinion evidence is “adequate” to persuade “a
reasonable mind.” 	No more is necessary. 	Purdy, 887 F.3d at 13.
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c. Shawn Teal, LCMHC
Tremblay next argues that the ALJ erred in giving little
weight to mental health counselor Shawn Teal, who also concluded
that Tremblay’s limitations were more severe than the ALJ
allowed for in her RFC determination. 	Completing the same form
as Drs. Schmidt and Bahder, Mr. Teal opined that Mr. Tremblay’s
bipolar disorder caused marked limitations in his ability to
understand, remember, and carry out detailed instructions and
his ability to set realistic goals or make plans independently
of others, and an extreme limitation in his ability to deal with
the stress of skilled and semiskilled work. (Admin. R. at 790).
He further opined that Mr. Tremblay had marked limitations in
his abilities to adhere to basic standards of neatness and
cleanliness, travel in unfamiliar places, maintain attention for
two hour segments, to work in coordination with or proximity to
others without being unduly distracted, and to ask simple
questions or request assistance, and that he had extreme
limitations in his abilities to: (1) maintain regular attendance
and be punctual within customary, usually strict tolerances; (2)
sustain an ordinary routine without special supervision; (3)
complete a normal workday and workweek without interruptions
from psychologically based symptoms; (4) perform at a consistent
pace without an unreasonable number and length of rest periods;
(5) respond appropriately to criticism from supervisors; (6) get
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along with co-workers or peers without unduly distracting them
or exhibiting behavioral extremes; (7) respond appropriately to
changes in a normal work setting; and (8) deal with routine work
stress. (Id. at 790).
Teal is not considered an “acceptable medical source.” 	See
20 C.F.R. §§ 401.1513 & 416.913. 	As such, the ALJ must consider
his opinion, but is not required to “give good reasons” for the
weight she assigns to those opinions. King v. Astrue, No. 09-
337-P-H, 2010 WL 4457447, at *4 (D. Me. Oct. 31, 2010).
Nevertheless, the ALJ did adequately explain her reasoning.
First, the ALJ observed that, overall, the limitations Teal
expressed were inconsistent with the longitudinal history of
Plaintiff’s condition, including examinations that were
routinely normal (including Dr. Bahder’s benign mental status
examinations) and Plaintiff’s reports of effective treatment
(Id. at 21). 	Second, the ALJ correctly emphasized that Teal’s
opinion was inconsistent with his own treatment notes, which
include Plaintiff’s admissions that he “had improved mood and
functioning” and that “leisure activities have also been more
enjoyable” (Id. at 21, 764).
Tremblay’s only substantive response to the ALJ’s
consideration of Teal’s opinion is the conclusory assertion that
she failed to consider the episodic nature of Tremblay’s mental
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illness. (Clmt. Mem., doc. no. 8-1, at 12). 	But, as noted, the
ALJ explicitly referenced Tremblay’s longitudinal medical
history and examinations that were “routinely normal.” (Id. at
21). 	The court finds no error in the weight the ALJ assigned to
Teal’s opinions.
d. Maryanne Zambella, APRN
Next, Tremblay asserts that the ALJ erred in giving little
weight to Maryanne Zambella, APRN, who treated Tremblay twice in
July and August 2017. 	Ms. Zambella opined that Mr. Tremblay’s
bipolar disorder caused marked limitations in his abilities to
adhere to basic standards of neatness and cleanliness, maintain
socially appropriate behavior, and interact appropriately with
the general public, and extreme limitations in his abilities to
travel in unfamiliar places and use public transportation.
(Admin. R. at 804). 	She further opined that Mr. Tremblay had
marked limitations in his abilities to: (1) set realistic plans
independently of others; (2) deal with the stress of semiskilled
and skilled work; (3) remember work-like procedures; (4)
understand and remember very short and simple instructions; (5)
sustain an ordinary routine without special supervision; (6)
work in coordination with or proximity to others without being
unduly distracted; (7) make simple work related decisions; (8)
complete a normal workday and workweek without interruptions
from psychologically based symptoms; (9) perform at a consistent
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pace without an unreasonable number and length of rest periods;
and (10) ask simple questions or request assistance. (Id. at
805). 	She opined that Mr. Tremblay had extreme limitations in
his abilities to: (1) carry out very short and simple
instructions; (2) maintain attention for two hour segments; (3)
maintain regular attendance and be punctual within customary,
usually strict tolerances; (4) respond appropriately to
criticism from supervisors; (5) get along with co-workers or
peers without unduly distracting them or exhibiting behavioral
extremes; (6) respond appropriately to changes in a normal work
setting; and (7) deal with routine work stress. (Id.). 	She also
concluded that Tremblay would miss more than four days of work
per month. 	(Id. at 806).
Tremblay again conclusorily argues that the ALJ failed to
consider the episodic nature of bipolar disorder. (Clmt. Mem.,
doc. no. 8-1, at 12). The court disagrees, as the ALJ
specifically indicated that Zambella’s opinion was inconsistent
with other treatment records and Tremblay’s longitudinal
history. (Admin. R. at 22). 	In addition, although not required
when addressing a non-acceptable medical source, the ALJ gave
detailed reasons for rejecting Zambella’s opinions to the extent
they found restrictions more limited than contained in the RFC.
First, as noted above, the ALJ considered that Ms. Zambella’s
conclusions were based on only two counseling sessions, both of
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which took place (a) within one month of each other and (b) over
a year after the date when Plaintiff claims he became disabled
(Admin. R. at 22, 808-10, 811-13). 	Next, the ALJ supportably
found that Ms. Zambella did not provide an explanation or
rationale as to why she found such significant restrictions.
(Id. at 22). 	Although the form that Ms. Zambella completed
instructed her to explain or comment on her opined limitations
(id. at 805), she did not do so. (Id. at 806). 	In addition, the
ALJ found that Ms. Zambella’s opined limitations were
inconsistent with Plaintiff’s presentation during the hearing
(Id. at 22). 	The ALJ was best situated to evaluate Plaintiff’s
presentation face-to-face. 	See Boardway v. Berryhill, No. 3:17-
cv-30069-KAR, 2018 WL 4323823, at *7 (D. Mass. Sept. 10, 2018)
(relying on SSA interviewer’s face-to-face observations of
claimant). 	Finally, the ALJ supportably found that Ms.
Zambella’s opinion was inconsistent with her own treatment
notes, including her report of Plaintiff’s admission that, since
starting a new medication, he was “stable with new motivation to
do things during the day” (Admin. R. at 22, 812). 	Accordingly,
the court finds no error in the ALJ’s consideration of Ms.
Zambella’s opinion.
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B. Claimant’s testimony
Tremblay next argues that the ALJ erroneously evaluated his
testimony regarding his symptoms and limitations in determining
his RFC. (Clmt. Mem., doc. no. 8-1 at 12). 	The ALJ ultimately
rejected Tremblay’s subjective complaints regarding his
limitations to the extent the exceeded those in the RFC. (Admin.
R. at 17). The court finds no error.
The ALJ concluded that (1) “the record indicates that
medication and therapy have been helpful in treating and
managing the claimant’s symptoms”; (2) “the objective evidence
does not support greater functional limitations than assessed in
this finding”; and (3) “the claimant is able to engage in a wide
range of activities of daily living.” (Id. at 17-20). 	Tremblay
does not dispute the ALJ’s analysis of the medical evidence, but
instead asserts that her ruling ran afoul of Social Security
Ruling 16-3p, 2017 WL 5180304, pursuant to which the ALJ may not
disregard an individual's statements about the intensity,
persistence, and limiting effects of symptoms solely because the
objective medical evidence does not substantiate the degree of
impairment-related symptoms alleged by the individual.” 	While
Tremblay has accurately stated a portion of the agency rule, the
cited portion is followed by a section captioned “Consideration
of Other Evidence,” 2017 WL 5180304 at *5-8, which describes
additional types of evidence. 	The record is clear that the ALJ
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did not rule “solely” based upon the objective medical evidence,
but also considered “other evidence.” 	In particular, the ALJ
noted the following:
1. 	Tremblay’s statements about his symptoms (Admin. R. at
16-17; see 2017 WL 5180304, at *6 [describing such statements as
“Other Evidence”]);
2. findings by the state agency psychologist and
consultative examiner (id. at 18, 20; see 2017 WL 5180304, at *7
[describing such findings as “Other Evidence”]);
3. Tremblay’s daily activities (Id. at 14, 15, 17, 20; see
2017 WL 5180304, at *7 [describing such activities as “Other
Evidence”]); and
4. Tremblay’s treatment history (Id. at 13, 16, 17, 18, 19,
20, 21, 22; see 2017 WL 5180304, at *8 [describing such history
as “Other Evidence”]).
Against this undisputed backdrop, the court finds that the ALJ
did not err in her consideration of claimant’s testimony.
IV. 	Conclusion
The court finds that the ALJ’s findings are supported by
“substantial evidence.” 	Ward, 211 F.3d at 655. 	Because the ALJ
has not committed a reversible error in evaluating Tremblay’s
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claim, his motion for an order reversing the Acting
Commissioner’s decision, (doc. no. 8), should be denied; the
Acting Commissioner’s motion for an order affirming her
decision, (doc. no. 10), should be granted; and the clerk of the
court should be directed to enter judgment in accordance with
this order and close the case.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). The 14–day period may be extended upon motion.
Failure to file a specific written objection to the Report and
Recommendation within the specified time waives the right to
appeal the district court’s order. 	See Santos–Santos v. Torres–
Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R. Civ. P.
72(b)(2).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
January 15, 2019
cc: 	D. Lance Tillinghast, Esq.
Hugh Dun Rappaport, Esq.
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