Ortega v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Carol Ortega
v. 	Civil No. 18-cv-813-LM
Nancy A. Berryhill, Acting
Commissioner of Social Security
REPORT AND RECOMMENDATION
Carol Ortega seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration denying her application for
disability insurance benefits and supplemental social security
income benefits. 	Ortega moves to reverse the Acting
Commissioner’s decision, and the Acting Commissioner moves to
affirm. 	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.
Standard of Review
The court’s review of a final decision of the Acting
Commissioner in a social security case “is limited to
determining whether the ALJ deployed the proper legal standards
and found facts upon the proper quantum of evidence.” 	Nguyen v.
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Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord Ward v. Comm’r
of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). 	The court
defers to the ALJ’s findings of fact 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).
“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)); Astralis Condo. Ass’n
v. Sec’y Dep’t of Housing & Urban Dev., 620 F.3d 62, 66 (1st
Cir. 2010) (“Substantial evidence is more than a scintilla. 	It
means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”).
Background
On October 18, 2016, Ortega filed an application for
disability insurance benefits and supplemental social security
income. 	She alleged an amended disability onset date of August
28, 2016.1 	Ortega alleged a disability due to attention deficit
hyperactivity disorder (“ADHD”), memory problems, trust issues,
and an aneurysm.
1 Ortega originally alleged an onset date of June 18, 2015.
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After Ortega’s claim was denied, she requested a hearing in
front of an ALJ. 	On February 21, 2018, the ALJ held a hearing,
during which Ortega, who was represented by an attorney,
appeared and testified.
On March 15, 2018, the ALJ issued an unfavorable decision.
In reaching her decision, the ALJ employed the requisite five-
step sequential analysis. 	See 20 C.F.R. § 404.1520.2 	At the
first step, the ALJ determined that Ortega had not engaged in
substantial gainful activity since the amended alleged onset
date of August 28, 2016.
At the second step, the ALJ found the following severe
impairments: ADHD, depression, and anxiety. 	The ALJ found that
Ortega’s aneurysm, though medically determined, was not a severe
impairment. 	The ALJ also found that Ortega had hypertension,
which was medically determined but non-severe. 	At the third
step, the ALJ found that Ortega’s impairments did not meet or
medically equal the severity of one of the impairments listed in
the Social Security regulations.
At step four, the ALJ considered whether Ortega retained
2 The Social Security Administration promulgated regulations
governing eligibility for disability insurance benefits at Part
404 and for supplemental social security income at Part 416.
Because the regulations are substantially the same, the court
will cite only to the Part 404 regulations. 	See McDonald v.
Sec’y of Health and Human Servs., 795 F.2d 1118, 1120 n.1 (1st
Cir. 1986).
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the residual functional capacity (“RFC”) to perform work as
defined in 20 C.F.R. § 404.1545. 	The ALJ found that Ortega had
the RFC to perform “a full range of work at all exertional
levels,” except that she was limited to “simple tasks performed
in two-hour blocks over a typical workday and workweek;
occasional superficial interaction with the public; occasional
interaction with coworkers and supervisors; and occasional
changes in routine and work setting.” 	Admin. Rec. at 21. 	In
reaching this conclusion, the ALJ considered the medical
evidence in the record, certain medical opinions, and Ortega’s
statements and testimony. 	See id. at 19-25.
In assessing Ortega’s RFC, the ALJ gave great weight to the
opinion of Michael Schneider, Psy.D, a non-examining reviewing
consultant, on the basis of his experience and specialty in
mental health. 	The ALJ also found that Dr. Schneider’s opinion
was most consistent with the record. 	The ALJ gave “partial
weight” to the May 2017 examining opinion of Sandra Vallery,
Ph.D, discounting the opinion primarily because it did not
contain details about the severity of the limitations it
described.
The ALJ gave little weight to the February 2018 opinion of
Ortega’s treating physician, Patricia Pangan, M.D. 	Dr. Pangan
opined that Ortega’s symptoms would frequently interfere with
the concentration and attention required to perform simple work
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tasks. 	Dr. Pangan further opined that Ortega was incapable of
performing “low stress” jobs because of “untreated depression,”
that Ortega was unable to stand or walk for long durations or
intervals; and that Ortega was only able to occasionally perform
lifting and carrying and rarely able to perform postural
changes. 	The ALJ concluded that Dr. Pangan assigned limitations
based on mental health issues, but that she was not a mental
health specialist and her treatment records and notes were
inconsistent with the mental health issues indicated in the
opinion.
The ALJ also considered Ortega’s own statements and
testimony. 	The ALJ found that, although Ortega’s impairments
could reasonably be expected to produce the symptoms described
at the hearing, Ortega’s statements about the intensity,
persistence, and limiting effects of those symptoms were “not
entirely consistent with the medical evidence and other evidence
in the record . . . .” 	Admin. Rec. at 22. 	Accordingly, the ALJ
accepted Ortega’s statements “only to the extent they can
reasonably be accepted as consistent with the objective medical
and other evidence.” 	Id.
Given Ortega’s RFC, the ALJ found at step five that Ortega
could perform her past work as a laboratory glass washer. 	The
ALJ therefore concluded that Ortega was not disabled.
On August 8, 2018, the Appeals Council denied Ortega’s
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request for review, making the ALJ’s decision the Acting
Commissioner’s final decision. 	This action followed.
Discussion
Ortega raises two primary claims in her appeal. 	First, she
argues that the ALJ erroneously weighed the opinion evidence
when formulating her RFC. 	Second, she asserts that the ALJ
erroneously discounted her testimony about her symptoms and
limitations. 	As explained below, the ALJ’s findings are
supported by substantial evidence.
I. 	Weight of Opinions
Ortega argues that the ALJ erred by assigning great weight
to Dr. Schneider’s opinion while discounting Dr. Vallery’s
opinion and giving Dr. Pangan’s opinion little weight. 	“An ALJ
is required to consider opinions along with all other relevant
evidence in a claimant’s record.” 	Ledoux v. Acting Comm’r, Soc.
Sec. Admin., 2018 WL 2932732, at *4 (D.N.H. June 12, 2018).
“Medical opinions are statements from acceptable medical sources
that reflect judgments about the nature and severity of [the
claimant’s] impairment(s), including [the claimant’s] symptoms,
diagnosis and prognosis, what [the claimant] can still do
despite impairment(s), and [the claimant’s] physical or mental
restrictions.” 	20 C.F.R. § 404.1527(a)(1).
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The ALJ analyzes the opinions of state agency consultants,
treating sources, and examining sources under the same rubric.
See id.; § 404.1527(c). 	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, 2017 WL 4564727, at *5 (D.N.H. Oct. 12, 2017).
A. 	Dr. Schneider
Ortega asserts that Dr. Schneider failed to explain the
discrepancy between his conclusion that Ortega was capable of
simple work and Dr. Vallery’s report that Ortega could not
consistently recall information, focus attention on work, or
stay on task. 	The Acting Commissioner contends that the ALJ
properly gave great weight to Dr. Schneider’s opinion because of
his experience and its consistency with the evidence.
The ALJ’s decision to give Dr. Schneider’s opinion great
weight was supported by his experience and his specialty in
mental health. 	Ortega overstates the inconsistency between Dr.
Schneider’s report and Dr. Vallery’s report. 	Dr. Schneider did
not ignore Dr. Vallery’s report about Ortega’s inconsistent
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recall, as he recited these elements of her opinion when making
his own opinion, which also noted limitations on Ortega’s
ability to concentrate. 	Both Dr. Schneider and Dr. Vallery
found that Ortega had sufficient ability to understand and
remember information, even if Dr. Vallery also found that Ortega
had some memory limitations.
At best, Ortega asks the court to reweigh the evidence in
the record, which is beyond the scope of the court’s review.
See Applebee v. Berryhill, 744 Fed. App’x 6, at *1 (1st Cir.
Nov. 30, 2018).
B. 	Dr. Vallery
Ortega asserts that, in giving Dr. Vallery’s opinion only
partial weight, the ALJ failed to consider the evidence of
memory limitations reported by Dr. Vallery. 	Specifically, Dr.
Vallery observed during a telephone interview that Ortega had
difficulty answering questions because she “[h]ad a hard time
remembering things.” 	Admin. Rec. at 220-21. 	Dr. Vallery also
reported that Ortega had inconsistent recall.
Contrary to Ortega’s argument, the ALJ accounted for Dr.
Vallery’s opinion by finding that Ortega had a moderate
limitation in memory and tailoring Ortega’s RFC accordingly. 	As
the ALJ observed, Dr. Vallery’s opinion did not indicate the
severity of Ortega’s memory limitations to support a restriction
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in functional capacity. 	Furthermore, Dr. Vallery’s report
supports the ALJ’s conclusion that Ortega’s memory limitations
were not severe enough to render her disabled. 	Dr. Vallery
found that Ortega had no cognitive impairment and that her
memory was adequate even though she did have some memory issues.
Further, despite noting that her recall was inconsistent, Dr.
Vallery found that Ortega could “use information to perform work
activities.” 	Id. at 378. 	Finally, to the extent there are
inconsistencies between the RFC finding and Dr. Vallery’s
opinion, the ALJ was not required to adopt all of Dr. Vallery’s
findings. 	See Dorow v. Berryhill, 303 F. Supp. 3d 167, 169 (D.
Mass. 2018) (stating that ALJs are not required to adopt the
entire report of a single provider, but rather may piece
together the relevant medical facts from the opinions of
multiple providers).
Ortega also contends that the ALJ incorrectly cited her
ability to watch television when discounting Dr. Vallery’s
opinion about Ortega’s memory or concentration. 	Ortega asserts
that her ability to watch television does not show how well she
was able to focus or recall what she watched. 	As the Acting
Commissioner responds, however, Ortega testified that she was
able to pay attention to a thirty-minute television show.
Admin. Rec. at 55. 	In any event, Ortega’s ability to watch
television was not the only activity that the ALJ cited when
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discounting Dr. Vallery’s opinion. 	For example, Ortega was able
to care for her five young grandchildren for up to four hours at
a time, and she testified that she remained “alert” while doing
so.3
Given all the above, the ALJ’s decision to give Dr.
Vallery’s opinion partial weight is supported by substantial
evidence. 	Even if Dr. Vallery’s report could have supported a
different outcome or a more limited RFC, the court cannot second
guess the ALJ’s findings where they are supported by substantial
evidence. 	See Applebee, 744 Fed. App’x 6, at *1 	(“While the
record could arguably support a different conclusion, there is
clearly substantial evidence to support the ALJ’s findings.
Accordingly, we uphold the ALJ’s decision.”).
C. 	Dr. Pangan
Ortega also argues that the ALJ erred by giving little
weight to the opinion of Dr. Pangan, her treating physician.
Dr. Pangan opined that Ortega was unable to perform any work at
all due to anxiety and untreated depression. 	The Acting
Commissioner responds that the ALJ gave good reasons for
3 Ortega also argues that the ALJ mischaracterized Dr.
Vallery’s notes about her daily activities. 	She contends that
the notes indicate that Ortega used her telephone as a computer,
while the ALJ stated only that she “uses a computer.” 	Though
this issue is inconsequential, the ALJ’s characterization is not
incorrect: 	Ortega uses a computer, which is her phone.
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discounting Dr. Pangan’s opinion.
A treating source’s medical opinion is entitled to
controlling weight when it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case record.” 	20 C.F.R. § 404.1527(c)(2). 	When an ALJ does not
give controlling weight to the medical opinion of a treating
source, she must determine the weight to give that opinion by
applying the factors listed in the regulations. 	See id.
§ 404.1527(c)(1)-(6). 	An ALJ must give “good reasons” for the
weight she gives a treating source’s medical opinion. 	Id.
§ 404.1527(c)(2). 	“Those reasons must offer a rationale that
could be accepted by a reasonable mind.” 	Bean v. Berryhill,
2019 WL 277592, at *3 (D.N.H. Jan. 22, 2019). 	“Where an ALJ
provides good reasons for giving little weight to a treating
source’s opinion, [s]he is not required to expressly address
each of the factors set forth in” the regulations. 	Id.
The ALJ noted that Dr. Pangan was not a mental health
specialist, so her opinion could be discounted on that basis.
In addition, the ALJ reviewed Dr. Pangan’s treatment notes and
found that they were not consistent with her opinion.
Substantial evidence supports this finding. 	For example, in a
May 30, 2017, examination, Dr. Pangan found that Ortega had an
appropriate mood and affect, and the relatively unremarkable
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findings on Dr. Pangan’s psychiatric exam were inconsistent with
the limitations set forth in Dr. Pangan’s opinion. 	Admin. Rec.
at 413, 417, 420-421. 	Therefore, good reasons support the ALJ’s
decision to give Dr. Pangan’s opinion little weight.
Ortega also contends that the ALJ failed to consider Dr.
Pangan’s report about how her mental limitations were
exacerbated by her aneurysm. 	She argues that pain from her
aneurysm frequently interfered with her ability to sustain
attention and concentration on simple work activities. 	Contrary
to Ortega’s argument, although the aneurysm is noted, Dr.
Pangan’s opinion does not identify pain resulting from the
aneurysm as a cause of Ortega’s limitations.
Ortega adds that she is unable to take medication for her
ADHD because it interferes with the medication for hypertension.
But, in her opinion, Dr. Pangan does not mention a conflict
between Ortega’s ADHD medication and her hypertension
medication.
Treatment notes do not support Ortega’s argument. 	Treatment
notes from May and June 2016 indicate that Ortega was unable to
take Adderall for her ADHD while taking blood pressure
medication. 	At the time, Ortega told her treating physician
that “without the Adderall she can’t get anything accomplished.
Her house is a mess. 	Does poorly at work. 	Unable to focus.
Unable to organize.” 	Id. at 439. 	On June 15, 2016, however, it
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is stated in the treatment notes that “Adderall added back last
month once [blood pressure] controlled on current regimen.” 	Id.
at 435. 	On October 6, 2016, a treatment note from Dr. Pangan
stated that Ortega “[h]as been on [A]dderall for years.” 	Id. at
430. 	During the May 30, 2017, examination, Dr. Pangan noted
that Ortega asked whether she could increase her Adderall in
order to suppress her appetite as she had been gaining weight.
Dr. Pangan told Ortega that Adderall is not to be used as an
appetite suppressant. 	Id. at 420. 	On November 27, 2017, Dr.
Pangan noted that Ortega “has no difficulty taking her current
medication.” 	Finally, Ortega testified that she was able to
maintain both medications after fine-tuning the dosages.
II. Ortega’s Subjective Complaints and Symptoms
Ortega argues that the ALJ erred by discounting her own
description of her limitations. 	In examining Ortega’s
subjective complaints, the ALJ discussed Ortega’s testimony that
she had difficulty with memory, concentration, understanding,
and focus, as well as problems with completing tasks and
following instructions, disorganization, difficulty managing
stress, and fatigue. 	The ALJ found that the medically
determinable impairments could reasonably be expected to produce
the alleged symptoms, but found that Ortega’s statements about
their severity were not consistent with the record.
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Ortega argues – in conclusory fashion – that the ALJ
contravened Social Security Ruling (“SSR”) 16-3p’s instruction
that an ALJ “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.” 	SSR 16-3p, 82 Fed. Reg. at 49465. 	“[U]nder SSR
16–3p, which supersedes SSR 96–7p, 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.’” 	Coskery v.
Berryhill, 892 F.3d 1, 4 (1st Cir. 2018) (quoting SSR 16-3p, 82
Fed. Reg. at 49464). “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 sources and other persons; and any other
relevant evidence in the individual’s case record.’” 	Id.
(quoting SSR 16-3p, 82 Fed. Reg. at 49464). 	Here, the ALJ,
examined the record in its totality, and, in making her
findings, she cited not only the objective medical evidence, but
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the medical opinions and Ortega’s own reports of her daily
activities.
Ortega contends that the ALJ failed to consider the decline
in her condition following her aneurysm, and she argues that the
ALJ therefore erred by referencing the “conservative” nature of
Ortega’s treatment history and “unremarkable” medical records as
to her mental health. 	There was, however, no significant change
in Ortega’s post-aneurysm treatment history. 	The consistency of
Ortega’s treatment for her mental health issues – even
subsequent to her aneurysm – therefore provides substantial
evidence for the ALJ’s conclusion that Ortega’s symptoms were
not as significant as alleged.
Furthermore, although she testified to headaches and head
pain after a 2015 surgery for the aneurysm and reported the pain
to the examining doctors, Ortega showed no changes in her daily
routine or activities after her aneurysm. 	See Admin. Rec. at
46-47, 375. 	In her motion to reverse, Ortega claims that the
decline in her condition resulted “in her loss of two subsequent
jobs in a fairly short period of time leading up to” the amended
alleged onset date. 	Doc. 9-1 at 10. 	This argument is not
supported by the record, which shows that Ortega quit one job
preceding the alleged onset date due to a disagreement with a
supervisor and was terminated from another based on a fabricated
accusation. 	Admin. Rec. at 20, 48, 210.
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Finally, despite Ortega’s protestations to the contrary, the
ALJ did not completely disregard Ortega’s testimony about
limitations in her concentration and memory. 	Rather, the ALJ
found that Ortega had a “moderate” limitation in both
remembering and concentration. 	Given these limitations, the ALJ
tailored an RFC that limited Ortega to simple tasks performed in
two-hour blocks. 	Although disparities existed between Ortega’s
testimony, the medical opinions, and the other evidence, the ALJ
was within her discretion here to resolve the conflicts against
Ortega. 	See Quaglia v. Colvin, 52 F. Supp. 3d 323, 334, 337
(D. Mass. 2014). 	Substantial evidence supports the ALJ’s
findings.
Conclusion
For the foregoing reasons, it is recommended that the
district judge deny the motion to reverse (doc. no. 9) and grant
the Acting Commissioner's motion to affirm (doc. no. 11).
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 frame waives
the right to appeal the district court’s order. 	See Santos-
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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
July 18, 2019
cc: 	Counsel of Record
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