Sheehan v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dori Leigh Sheehan
v. 	Case No. 18-cv-586-SM
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration
REPORT AND RECOMMENDATION
Pursuant to 42 U.S.C. § 405(g), Dori Leigh Sheehan moves to
reverse the Acting Commissioner’s decision to deny her
application for Social Security disability insurance benefits,
under Title II of the Social Security Act, 42 U.S.C. § 423.
(Doc. No. 10). 	The Acting Commissioner, in turn, moves for an
order affirming 	her decision. 	(Doc. No. 12). 	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
Social Security Administration “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
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652, 655 (1st Cir. 2000). 	It “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 Sheehan’s request for benefits.
See 20 C.F.R. §§ 404.1520. 	After determining that she met the
Social Security Act’s insured status requirements and had not
engaged substantial gainful activity after the alleged onset of
his disability on April 5, 2012, see 20 C.F.R. §§ 404.1571 et
seq., 416.971 et seq., the ALJ analyzed the severity of
Sheehan’s impairments. 	At this second step, the ALJ concluded
that Sheehan had the following severe impairments: substance
abuse disorder, anxiety disorder and depressive disorder.
Admin. R. at 22; 20 C.F.R. §§ 404.1520(c), 416.920(c). 	At the
third step, the ALJ found that Sheehan’s severe impairments did
not meet or “medically equal” the severity of one of the
impairments listed in the Social Security regulations. 	Id. at
23; see 20 C.F.R. §§ 404.1520(d), 404.1525-26, 416.920(d),
416.925-26.
After reviewing the medical evidence of record, medical
opinions, and Sheehan’s statements and hearing testimony, the
ALJ concluded that Sheehan retained the residual functional
1 The court recounts here only those facts relevant to the
instant appeal. 	The court incorporates by reference the
parties’ respective Statement of Material Facts (Doc. Nos. 10-2
and 11). 	See LR 9.1(b), (c).
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capacity (RFC) to perform a full range of work at all exertional
levels, but with the following non-exertional limitations:
She is limited to routine work day to day that is not
fast-paced, defined as assembly lines, timed work, or
work with strict quotas. 	She is capable of work that
includes no more than occasional interaction with the
general public and no tandem tasks, meaning there
would be no situation that would result in another
employee waiting for the claimant to finish her task.
The job should be located in the same work location
with few, if any, changes day to day.
Id. at 15.
The ALJ found that, limited in this manner, Sheehan would
not be able to perform her past relevant work. 	Id. at 34.
Based on testimony from a vocational expert, the ALJ also found
that Sheehan could perform other jobs that exist in the national
economy, such as housekeeper, merchandise marker, and office
helper. 	Id. at 34-35. 	The ALJ accordingly concluded that
Sheehan was not disabled within the meaning of the Social
Security Act during the relevant time period. 	Id. at 35; 20
C.F.R. §§ 404.1520(g).
III. Analysis
Sheehan challenges the ALJ’s decision on two grounds.
First, she asserts that the ALJ erroneously evaluated opinion
evidence in formulating her RFC. 	Next, she argues that the ALJ
erroneously evaluated Sheehan’s testimony regarding her symptoms
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and limitations in forming his RFC. 	As explained below, the
court finds no error.
A. 	Opinion Evidence
1. 	Dr. Bolter
Sheehan first claims that the ALJ improperly accounted for
reviewing psychiatrist Delano Bolter’s opinions. 	The ALJ gave
“great weight” to Dr. Bolter’s testimony that Sheehan had no
more than moderate limitation in her abilities to understand,
remember and apply information, interact with others, and adapt or
manage herself, and a marked limitation in her ability to sustain
concentration, persistence, and pace. 	Admin. R. at 93-94. 	Dr.
Bolter also testified that Sheehan’s marked limitation in
concentrating, persisting, or maintaining pace seriously interfered
with her abilities in that area, but he did not agree that it left
her with “no useful ability to function” in that area. 	Id. at 98-
107.
Sheehan claims that the ALJ erred because, despite the
weight given to Dr. Bolter’s findings, she concluded that
Sheehan had “mild limitation” in understanding, remembering, or
applying information, “moderate limitation” in interacting with
others, “moderate limitation” in concentrating, persisting, or
maintaining pace, and “moderate limitation” in adapting or managing
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herself, without discussing the discrepancy between her finding of
“moderate limitation” in concentrating, persisting, or maintaining
pace and Dr. Bolter’s opinion testimony that Ms. Sheehan had a
“marked limitation” in that area. 	Admin. R. at 23-24, 30.
It is true, as Sheehan argues, that the ALJ did not explicitly
reject Dr. Bolter’s opinion that Plaintiff had “marked” deficits in
concentration, persistence, or pace, but that omission does not
warrant remand here. 	As a threshold matter, the ALJ was not
required to adopt all of Dr. Bolter’s findings merely because she
gave his opinion “great weight.” See Reeves v. Comm’r, 618 F. App’x
267, 275 (6th Cir. 2015) (“Even where an ALJ provides ‘great
weight’ to an opinion, there is no requirement that an ALJ adopt a
state agency psychologist’s opinions verbatim; nor is the ALJ
required to adopt the state agency psychologist’s limitations
wholesale.”); see also Dorow v. Berryhill, 303 F. Supp. 3d 167, 169
(D. Mass. 2018) 	(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) (citing
Evangelista v. Sec’y of Health & Human Servs., 826 F.2d 136, 144
(1st Cir. 1987)).
Although not fatal to the ALJ’s conclusion, it might have been
preferable for the ALJ to explain why she did not accept Dr.
Bolter’s characterization that Plaintiff had a “marked” limitation
in concentration, persistence, or pace. 	Nevertheless, it is clear
from the ALJ’s decision that she rejected that label because
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Sheehan’s “treatment notes do not reflect more than moderate
deficits.” 	Admin. R. at 24. 	The ALJ supported this conclusion
with citations to objective examination findings that Sheehan had
intact and coherent thought process and content, was described as
“not grossly inattentive,” and was able to correctly repeat seven
digits in a row. 	Id. (citing Admin. R. at 710, 836, 879-81). 	The
ALJ reasonably inferred from those normal findings that Sheehan was
only moderately limited. 	See LaFlamme v. Colvin, No. 1:14-cv-57-
DBH, 2015 WL 519422, at *11 (D. Me. Feb. 6, 2015) (finding that ALJ
permissibly relied on normal mental status reports in assessing
mental RFC).
As a final matter with respect to Dr. Bolter, remand is not
warranted because Sheehan has not shown that Dr. Bolter’s use of
the term “marked” equates to any functional limitation that the ALJ
omitted from the RFC assessment. 	As previously noted, Dr. Bolter
clarified that his assessment of marked limitations did not mean
that Plaintiff had “no useful ability to function” in that area, as
Plaintiff’s treating providers suggested. 	Admin R. at 100-02.
Rather, Dr. Bolter defined “marked” the same way as the Social
Security Administration, indicating that Plaintiff’s functioning
was “seriously limited” but not precluded. 	Id. at 99; see 20
C.F.R. Pt. 404, Subpt. P., App. 1, § 12.00(F)(2)(d). 	The ALJ
reasonably accounted for 	such “serious” limitations in
concentration, persistence, or pace by restricting Plaintiff to
routine work that is not fast-paced, meaning she could not work on
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an assembly line, under timed conditions, or with strict quotas.
Admin. R. at 24. 	Nor would she be allowed to work on tandem
assignments where another employee would have to wait for her to
finish a task. 	Id.
Sheehan’s reliance on Cardone v. Berryhill, 2018 DNH 210, 2018
WL 5624151, at *6 (D.N.H. Oct. 29, 2018), is misplaced. 	In that
case, the ALJ found that the claimant had “marked limitations” in
concentration, persistence, or pace, 2018 WL 5624151, at *4-5. 	The
case was remanded because the ALJ failed to consider those “marked
limitations” in formulating the RFC. 	Here, however, the ALJ
supportably found only moderate limitations. 	Admin. R. at 24.
Furthermore, the ALJ in Cardone failed to include in claimant’s RFC
any limitation that specifically addressed “staying on task or
working at an appropriate and consistence pace.” 	2018 WL 5624151
at *5. 	Here again, by contrast, the ALJ specifically -- and
supportably -- accounted for Sheehan’s limited ability to stay on
task and sustain pace by restricting her to routine work that was
“not fast-paced” (e.g., no “timed work” or “strict quotas”) and
would not put her in situations where co-workers had to wait for
her to finish her tasks. 	Admin R. at 24. 	See Dimambro v. U.S.
Soc. Sec. Admin., Acting Comm’r, No. 16-CV-486-PB, 2018 DNH 004,
2018 WL 301090, at *9 (D.N.H. Jan. 5, 2018) (finding that the RFC
assessment “captured the essence” of a non-examining psychologist’s
moderate persistence limitations by limiting the claimant to
“[s]imple one-to-three step tasks for two-hour periods”). 	The RFC
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limitations here are more specific and restrictive than the ones
the court approved in Dimambro. 	More importantly, they are
consistent with Dr. Bolter’s opinion that Plaintiff would have
“marked” or “serious” difficulties. 	Although ALJ described
Sheehan’s symptoms as “moderate,” 	Admin. R. at 	24, the ALJ
nevertheless “captured the essence” of Dr. Bolter’s opinion.
B. 	Dr. Prescott
Sheehan next argues that the ALJ failed to explain an alleged
discrepancy between her RFC finding and the opinion of examining
physician Robert Prescott, M.D., whose opinion she gave moderate
weight. 	Dr. Prescott opined that Ms. Sheehan “appears able to
complete some basic tasks though at an inconsistent or reduced pace
given attention deficit issues, mood and anxiety.” 	Admin. R. at
30, 837. 	The court, however, finds no such discrepancy. 	The ALJ
supportably noted that “the record overall does not show that
[Sheehan] cannot adhere to schedules or a pace,” Admin. R. at 35,
so the ALJ reasonably accounted for Dr. Prescott’s opinion by
limiting Plaintiff to jobs without strict pace requirements or
tandem tasks. 	Id. at 24.
C. 	Claimant’s testimony
Sheehan next argues that the ALJ erred by discounting her
description of her limitations to the extent they were inconsistent
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with other record evidence supporting lesser restrictions. 	Admin.
R. at 25. 	Specifically, Sheehan faults the ALJ’s consideration of
her failure to attend various medical appointments and to comply
with medication treatment. 	The court finds no error. 	The ALJ
noted Sheehan’s testimony that her difficulties in managing her
schedule were related to her mental impairments. 	Id. 	The ALJ also
noted, however, record evidence showing that she missed
appointments because she was voluntarily pursuing other
activities, including a hair appointment and a camping trip. Id.
at 26-27; 944, 946). 	Sheehan also asserts that the ALJ “failed
to consider possible reasons why [she] had not complied with
medication treatment . . .” 	Clmt. Mem., (Doc. No. 10-1) at 12.
Sheehan, however, does not cite any specific evidence the ALJ
overlooked. 	Moreover, the ALJ cited record evidence that
Sheehan changed providers for non-therapeutic reasons and that
providers became wary of prescribing medications as they feared
addiction-related misuse. 	Admin. R. at 29. 	The ALJ also noted
that despite her continued substance abuse, Sheehan’s cognitive
functioning remained intact across numerous providers,
undercutting her claimed inability to work. 	Id. at 25-29.
The ALJ is entitled to weigh a claimant’s testimony against
other evidence in the record, and properly did so here. 	See
Social Security Ruling 16-3p, 2017 WL 5180304, at 5 (relevant
factors in balancing a claimant’s testimony against other
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evidence include the consistency of the medical complaints with
medical record, and the level, effectiveness, and compliance
with prescribed treatment); cf. Venus v. Berryhill, No. 17-CV-
482-PB, 2019 DNH 005, 2019 WL 157296, at *15 (D.N.H. Jan. 9,
2019) (noting that an “ALJ cannot reject the veracity of the
claimant’s own statements . . . based solely on the conclusion
that they are unsubstantiated by the objective medical
evidence[.]”) (quoting Tellier v. U.S. Soc. Sec. Admin. Acting
Comm’r, No. 17-CV-184-PB, 2018 DNH 143, 2018 WL 3370630, at *6
(D.N.H. July 10, 2018)). 	The ALJ permissibly weighed Sheehan’s
testimony. 	Accordingly, the ALJ supportably concluded that her
testimony did not support limitations greater than those the ALJ
included in the RFC determination.
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 Sheehan’s
claim, her motion for an order reversing the Acting
Commissioner’s decision, (doc. no. 10), should be denied; the
Acting Commissioner’s motion for an order affirming her
decision, (doc. no. 12), should be granted; and the clerk of the
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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
March 27, 2019
cc: 	All Counsel of Record
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