Fortin v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Christopher R. Fortin
v. Civil No. 18-cv-636-JL
Opinion No. 2019 DNH 136
U.S. Social Security
Administration, Commissioner
ORDER ON APPEAL
Christopher Fortin has appealed the Social Security
Administration’s (“SSA”) denial of his application for a period
of disability, disability insurance benefits, child’s insurance
benefits, and supplemental security income. An administrative
law judge (“ALJ”) at the SSA ruled that although Fortin has
several medically determinable impairments, his impairments are
not severe individually or in combination, and thus he is not
disabled. See 20 C.F.R. §§ 404.1505(a), 416.905(a). The
Appeals Council later denied Fortin’s request for review, see
id. §§ 404.967, 416.1467, with the result that the ALJ’s
decision became the final decision on his application, see id.
§§ 404.981, 416.1481. Fortin then appealed the decision to this
court, which has jurisdiction under 42 U.S.C. § 405(g) (Social
Security).
Fortin has moved to reverse the decision. See LR 9.1(b).
The Commissioner of the SSA has cross-moved for an order
affirming the ALJ’s decision. See LR 9.1(c). After careful
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consideration, the court denies Fortin’s motion and grants the
Commissioner’s motion.
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
“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 relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotations omitted). 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). The court therefore
“must uphold a denial of social security . . . benefits unless
‘the [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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Background
The court recounts here only those facts relevant to the
instant appeal. The parties’ more complete recitations in their
Statements of Material Facts1 are incorporated by reference. The
ALJ invoked the requisite five-step sequential evaluation
process in assessing Fortin’s request for a period of
disability, disability insurance benefits, child’s insurance
benefits, and supplemental security income. See 20 C.F.R.
§§ 404.1520, 416.920. After determining that Fortin had not
engaged in substantial gainful activity after the earliest
alleged onset of his disability, the ALJ analyzed the severity
of his impairments. At this second step, the ALJ found that
Fortin had several medically determinable impairments:
personality disorder, hypertension, mild cervical spine
degenerative disc disease, cyst, and foot injury.2 But the ALJ
determined that none of these impairments alone or in
combination had significantly limited or was expected to
significantly limit Fortin’s ability to perform basic work-
related activities for 12 consecutive months. Therefore, the
ALJ concluded that Fortin does not have a severe impairment or
1 Documents no. 8, 11.
2 Admin. R. at 20.
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combination of impairments.3 Given this step-two finding, the
ALJ concluded his analysis and found that Fortin was not
disabled within the meaning of the Social Security Act.4
Analysis
Fortin challenges the ALJ’s decision on four grounds,
arguing that the ALJ erred by: (1) misinterpreting the date of
a medical evaluation; (2) failing to consider Fortin’s
subjective symptoms in determining severity; (3) improperly
weighing medical opinion evidence; and (4) improperly evaluating
Fortin’s testimony. The court addresses each argument in turn.
A. Date of Dr. Hess’s evaluation
Dr. Elizabeth P. Hess, a state examining psychologist,
evaluated Fortin on March 15, 2016 and issued a report on March
22, 2016.5 Each page of the report bears a stamp with the date
November 1, 2012, apparently representing the date on which the
form used for the report was approved by the state.6 Fortin’s
counsel raised this potential source of confusion with the ALJ
at the hearing and the ALJ indicated that he understood that
3 Id. at 23.
4 Id. at 28.
5 Id. at 457.
6 Id. at 38-39, 453-58.
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Dr. Hess’s evaluation took place in 2016.7 But the ALJ referred
to it in his decision to the “November 2012 opinion” of Dr. Hess
and gave that opinion little weight in part because he believed
it was “remote in time.”
The parties agree that the ALJ erred by misinterpreting the
date of Dr. Hess’s opinion, but dispute whether this error was
harmful.8 Fortin argues that he was prejudiced because the ALJ
might have reached a result favorable to him with a proper
understanding of Dr. Hess’s opinion.9 But the ALJ provided
alternative reasons for giving Dr. Hess’s opinion little weight,
explaining that it “is based on the claimant’s subjective
symptoms and self-reported medical history” and that he gave
greater weight to “Dr. Jackson’s more recent evaluation that is
based on objective diagnostic testing and observed medical
signs.”10 These reasons echo the analysis of state psychologist
Dr. Nicholas Kalfas, who understood the correct date of
Dr. Hess’s evaluation. Dr. Kalfas gave “more weight . . . to
Dr. Jackson’s findings” and little weight to “the findings
7 Id. at 38-39.
8 See Mem. of Law in Supp. of Mot. to Reverse (doc. no. 7-1) at
1-2; Mem. of Law in Supp. of Mot. to Affirm (doc. no. 10-1) at
10-11.
9 Mem. of Law in Supp. of Mot. to Reverse (doc. no. 7-1) at 2.
10 Admin R. at 27. Dr. Trina Jackson evaluated Fortin later in
2016.
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presented by Dr. Hess . . . as they appear to be biased by the
claimant based upon his perception of the setting and persona
involved” as evidenced by later interactions.11 The ALJ gave
Dr. Kalfas’s opinion great weight and specifically noted his
assessment of the relative weight of the opinions of Dr. Hess
and Dr. Jackson.12
The ALJ’s error is certainly unfortunate, especially since
Fortin’s counsel specifically raised the issue at the hearing,
but it is also harmless. The ALJ gave independent reasons
besides temporal remoteness for giving Dr. Hess’s opinion little
weight that are sufficient on their own to support that
determination. See McNelley v. Colvin, No. 15-1871, 2016 WL
2941714 at *1 (1st Cir. Apr. 28, 2016) (finding ALJ’s misreading
of record harmless after review of entire record); Perez Torres
v. Sec'y of Health & Human Servs., 890 F.2d 1251, 1255 (1st Cir.
1989)(same). It is also clear that the ALJ was guided by
Dr. Kalfas’s assessment of the psychological opinions, which was
not tainted by the error. The ALJ erred in misinterpreting the
date of Dr. Hess’s opinion, but the error did not prejudice
Fortin. Remand is not warranted.
11 Id. at 128.
12 Id. at 25-26.
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B. Consideration of subjective symptoms
Fortin argues that the ALJ must not have appropriately
considered his subjective symptoms because Fortin testified that
he receives assistance from state agencies and it might be
inferred that one requiring assistance from such agencies is
incapacitated.13 Fortin submitted no evidence beyond his own
testimony regarding his participation in these programs. And
the standards for participation in these programs may well
differ in important ways from the definition of disability under
the Social Security Act. At most, Fortin’s receipt of
assistance is evidence that might support an alternative
conclusion. Fortin has not shown that the ALJ’s decision is not
supported by substantial evidence, and it is not legal error to
conclude that a recipient of state assistance is not severely
impaired.
C. Weight of medical opinion evidence
Fortin argues that the ALJ improperly weighed the medical
opinions provided by Dr. Donald Catino, who Fortin identifies as
his treating physician, and Dr. Hess.14 As discussed supra, the
ALJ gave well-supported reasons for giving Dr. Hess’s opinion
little weight. The ALJ did not ignore Dr. Hess’s opinion, but
13 Mem. of Law in Supp. of Mot. to Reverse (doc. no. 7-1) at 2-3.
14 Mem. of Law in Supp. of Mot. to Reverse (doc. no. 7-1) at 3-5.
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instead was persuaded by contrary medical opinion. He did not
suggest that psychological evidence was valueless, but instead
gave greater weight to a different set of psychological
evidence. The ALJ did not err in assigning Dr. Hess’s opinion
little weight.
The ALJ also adequately justified his decision to give
Dr. Catino’s evidence little weight. Dr. Catino “opined that
the claimant cannot work due to neck trauma sustained in
multiple motor vehicle accidents since 1992, and due to
arthritis of the cervical spine, with worsening in the last 12
months.”15 The ALJ explained that he gave the opinion little
weight because “Dr. Catino did not examine the witness over the
past 12 months, he had not treated the claimant since 1992, and
because the opinion is conclusory and does not identify and
quantify work-related functional limitations.”16 The ALJ’s
assessment appropriately applies the factors used to assess the
opinion of a treating source. See 20 C.F.R. § 404.1527(c)(2)-
(6). The record reflects that Dr. Catino examined Fortin twice
in the weeks immediately prior to issuing his opinion letter.17
But Dr. Catino was “not familiar” with Fortin’s case prior to
15 Admin. R. at 27.
16 Id.
17 Id. at 578-80, 585-89, 617.
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being asked to opine, did “not know anything about him except
his neck pain,” and scheduled the second examination because he
did not immediately feel comfortable opining that Fortin’s
condition had “severely deteriorated over the past 12 months.”18
Substantial evidence thus supports the ALJ’s assessment that the
very limited treating relationship between Dr. Catino and
Fortin, among other factors, justified giving limited weight to
Dr. Catino’s opinion.
D. Evaluation of Fortin’s testimony
Finally, Fortin argues that the ALJ failed to properly
evaluate Fortin’s own testimony. After citing numerous
authorities on the standards by which an ALJ should assess a
claimant’s subjective testimony, Fortin only directly challenges
the ALJ’s assessment on the basis that “the jumbled nature and
content of Mr. Fortin’s testimony would lead even a layperson to
believe that he is impaired in accordance with Dr. Hess’s
opinion.”19 The ALJ found that Fortin’s “statements concerning
the intensity, persistence and limiting effects of [Fortin’s]
18 Id. at 587-88. The record arguably leaves open the
possibility that Dr. Catino had examined Fortin an additional
one or two times before 2017. See id. at 570, 585-94. But Dr.
Catino clearly did not have a continuous treatment relationship
with Fortin throughout the 12 months prior to issuing the
opinion letter.
19 Mem. of Law in Supp. of Mot. to Reverse (doc. no. 7-1) at 6-7.
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symptoms are not consistent with the medical evidence and other
evidence in the record for the reasons explained in this
decision.” Even if the record might support a different
conclusion, Fortin has not developed any argument that the ALJ’s
finding is not supported by substantial evidence. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues
adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.”).
Conclusion
For these reasons, the Commissioner’s motion to affirm20 is
GRANTED and Fortin’s motion to reverse the Commissioner’s
decision21 is DENIED. The Clerk of Court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: August 27, 2019
cc: Brenda M. Golden Hallisey, Esq.
Jessica Tucker, Esq.
20 Doc. no. 10.
21 Doc. no. 7.
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