JOHN H. RICH, III, Magistrate Judge.
This Social Security Disability ("SSD") appeal raises the question of whether the administrative law judge ("ALJ") supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ (i) erroneously discounted the opinions of her medical providers, (ii) failed to adequately evaluate the impact of her obesity, and (iii) erroneously deemed her statements regarding her symptoms and limitations only partially credible. See Itemized Statement of Specific Errors ("Statement of Errors") (ECF No. 13) at 5-11. I find no reversible error and, accordingly, recommend that the court affirm the commissioner's decision.
Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2013, Finding 1, Record at 12; that, through her date last insured ("DLI"), she had the severe impairments of status-post bilateral mastectomy and breast cancer treatment (now in remission), bipolar disorder, and post-traumatic stress disorder ("PTSD"), Finding 3, id.; that, through her DLI, she had the residual functional capacity ("RFC") to perform a limited range of light work as defined in 20 C.F.R. § 404.1567(b), Finding 5, id. at 16-17; that, through her DLI, considering her age (30 years old, defined as a younger individual, on her DLI), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 7-10, id. at 24; and that she, therefore, had not been disabled from August 13, 2012, her alleged onset date of disability, through December 31, 2013, her DLI, Finding 11, id. at 25. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. § 404.981; Dupuis v. Sec'y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The ALJ reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than her past relevant work. 20 C.F.R. § 404.1520(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The statement of errors also implicates Step 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(f); Bowen, 482 U.S. at 146 n.5. At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. § 404.1520(f); Social Security Ruling 82-62 ("SSR 82-62"), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.
The record indicates that, on May 21, 2014, L. Susan Dixon, M.D. of Counseling Services, Inc., met with the plaintiff for the first time, examined her, and completed a form titled "Medical Source Statement of Ability To Do Work-Related Activities (Mental)." See Record at 671-73, 677-79. The form instructed the medical source to provide an opinion of what the individual could still do despite his/her impairments and to base that opinion on the source's "findings with respect to medical history, clinical and laboratory findings, diagnosis, prescribed treatment and response, and prognosis." Id. at 671.
Dr. Dixon opined that the plaintiff's ability to understand, remember, and carry out instructions — even simple ones — was markedly restricted, as was her ability to make judgments on complex work-related decisions. See id. at 671. Asked to identify "the factors (e.g., the particular medical signs, laboratory findings, or other factors described above)" that supported her assessment, she replied: "[status-post] chemotherapy [with] subsequent impairment in memory/cognition[.]" Id.
Dr. Dixon also found that the plaintiff had marked limitations in her ability to interact appropriately with the public, supervisors, and coworkers and to respond appropriately to usual work situations and changes in a routine work setting. See id. at 672. She identified the factors supporting that assessment as "emotional lability, anxiety[.]" Id.
Finally, Dr. Dixon noted that the plaintiff's "ability to manage stress is limited and she has poor adaptational skills at present." Id. She described the factor supporting that assessment as "observation[.]" Id.
She indicated that these limitations had been present since 2012. See id. at 672.
In her progress note of the plaintiff's May 21, 2014, visit, Dr. Dixon indicated that, on mental status examination, the plaintiff was "a tearful, casually dressed white female" who made "good eye contact" and had "mildly rapid" speech, a variable affect and anxious mood, appearing "somewhat agitated at times[,]" but denied suicidal or homicidal thoughts or psychotic symptoms, had no abnormal involuntary movements, and had fair insight and judgment. Id. at 678. Dr. Dixon diagnosed bipolar II disorder (unstable), generalized anxiety disorder (unstable), and PTSD, and assessed the plaintiff with a Global Assessment of Functioning ("GAF") score of 50.
The ALJ accorded little weight to Dr. Dixon's report, explaining:
Id. at 22 (citations omitted).
The plaintiff argues that the ALJ erroneously rejected Dr. Dixon's opinion on the improper bases that (i) it constituted an advocacy opinion, (ii) the record contained no evidence that Dr. Dixon had ever examined the plaintiff before issuing her medical source statement, and (iii) it was inconsistent with the record as a whole. See Statement of Errors at 6-7. At oral argument, her counsel added that, while the ALJ had correctly considered Dr. Dixon a "treating source," he erred in not providing the "good reasons" required for the assignment of weight to a treating source's opinion. 20 C.F.R. § 404.1527(c)(2) ("Generally, we give more weight to medical opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. . . . We will always give good reasons in our notice of determination or decision for the weight we give your treating source's medical opinion.").
I find no reversible error in the ALJ's evaluation of the Dixon opinion.
First, as counsel for the commissioner contended at oral argument, the ALJ neither characterized Dr. Dixon as a treating source, see Record at 22, nor was he required to do so.
However, as counsel for the commissioner rejoined, regulations applicable to claims filed before March 27, 2017, define a "treating source" as "your own acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you." 20 C.F.R. § 404.1527(a)(2). The regulations elaborate:
Id. Consistent with this definition, this court has rejected the notion that a one-time examination by a physician who is part of a practice group that has had an ongoing relationship with a claimant suffices to transform that physician into the claimant's treating source. See Brown v. Astrue, No. 2:10-cv-27-DBH, 2010 WL 5261004, at *3 n.4 (D. Me. Dec. 6, 2010) (rec. dec., aff'd Jan. 4, 2011) ("[I]f such piggybacking were allowed under the applicable regulations, any applicant could simply choose a more favorable treating source, see him or her once and provide him or her with all of the applicant's previous treatment records, and the commissioner would have to treat that new treating source as if the treatment relationship had gone on for many years, rendering the length-of-treatment criterion meaningless.").
Because Dr. Dixon was not a treating source, the ALJ was not required to give good reasons for the treatment of her opinion. See, e.g., Gallant v. Berryhill, No. 1:16-cv-00380-GZS, 2017 WL 2731303, at *4 (D. Me. June 25, 2017) (rec. dec., aff'd July 13, 2017) (ALJ not required to provide "good reasons" for handling of opinion of one-time examining consultant) (citation and internal quotation marks omitted). That he considered it and explained the weight given it sufficed.
In the alternative, even if the ALJ had been required to provide good reasons for his handling of that opinion, he did so. As the commissioner acknowledges, see Defendant's Opposition to Plaintiff's Statement of Errors ("Opposition") (ECF No. 15) at 3 n.2, the ALJ erred in stating that Dr. Dixon had not examined the plaintiff. Yet, even taking that error into account, and assuming that the ALJ also erred in characterizing the Dixon opinion as an "advocacy opinion," the ALJ still provided good reasons for according even the opinion of a treating source little weight: that it was inconsistent with the record evidence as a whole and not well-supported. See Record at 22; see also 20 C.F.R. § 404.1527(c)(3)-(4) ("The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion. The better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion. . . . Generally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion."); Campagna v. Berryhill, No. 2:16-cv-00521-JDL, 2017 WL 5037463, at *4 (D. Me. Nov. 3, 2017) (rec. dec., aff'd Jan. 2, 2018) ("lack of support and inconsistency with other substantial evidence of record are well-recognized bases for affording [even] a treating source's medical opinion little or no weight"); Malaney v. Berryhill, No. 2:16-cv-00404-GZS, 2017 WL 2537226, at *5 (D. Me. June 11, 2017) (rec. dec. aff'd July 11, 2017), appeal docketed, No. 17-1889 (1st Cir. Sept. 5, 2017) (any error in ALJ's rejection of an opinion on the basis it was an "advocacy opinion" did not warrant remand when ALJ provided other supportable reasons for rejecting the opinion) (citation and internal quotation marks omitted).
The plaintiff asserts that the Dixon opinion is in fact supported by and consistent with not only Dr. Dixon's observations on examination but also those of other treating providers at Counseling Services, Inc., for the period from September 2011 through June 2014 and Psychiatric Associates of Southern Maine for the period from August 2011 through February 2014. See Statement of Errors at 6-7.
As the commissioner rejoins, see Opposition at 3-6, however, the ALJ's conclusions are supported by substantial evidence. The ALJ supportably concluded both that Dr. Dixon provided minimal support or explanation for her findings of marked restrictions, see Record at 671-72, and that her opinion was inconsistent with other evidence of record. That other evidence included not only the opinions of agency nonexamining consultants, compare id. at 89-91, 105-107 with id. at 671-73, but also treatment notes from providers at both Counseling Services, Inc., and Psychiatric Associates of Southern Maine describing the plaintiff as having relatively normal grooming, hygiene, eye contact, speech, thought processes, attention, and concentration, see, e.g., id. at 566, 569, 572, 575, 580-81, 584, 614-43, 675, 680-81.
Remand, accordingly, is unwarranted on the basis of this point of error.
The plaintiff also takes issue with the ALJ's handling of the opinions of her chiropractor, Daniel Brink, D.C. and nurse practitioner, Sandra J. Picard, F.N.P.-B.C., both of whom opined that she had significant physical functional limitations. See Statement of Errors at 7-8; Record at 686-91 (Brink opinion), 978-83 (Picard opinion). The plaintiff argues that the ALJ's decision to give little weight to these opinions was "erroneous and not supported by substantial evidence." See Statement of Errors at 8. I find no error.
The ALJ addressed both opinions as follows:
Record at 22-23 (citations omitted) (alterations to quoted material in original).
As the commissioner points out, see Opposition at 6, Dr. Brink, a chiropractor, and F.N.P. Picard, a nurse practitioner, were not "acceptable medical sources" as that term was then defined, see 20 C.F.R. § 404.1513(a) (2016).
However, even if it were necessary to consider the merits of the ALJ's handling of the Brink and Picard opinions, I find no error. The ALJ offered several valid reasons to accord them little weight: that they (i) were authored by non-acceptable medical sources, (ii) failed to explain the severe limitations assessed, and (iii) were uncorroborated by record evidence, including objective findings. See Record at 22-23; SSR 06-03p at 332 (fact that source is an acceptable medical source may justify giving his or her opinion greater weight than that of a non-acceptable medical source); Campagna, 2017 WL 5037463, at *4 (lack of support and inconsistency with other substantial evidence of record are well recognized bases for affording [even] a treating source's medical opinion little or no weight").
The plaintiff complains that, in so stating, the ALJ overlooked objective evidence buttressing the Picard finding of difficulty using her hands and feet, namely, 2014 and 2015 diagnoses of peripheral neuropathy by Roger C. Inhorn, M.D., of Mercy Oncology-Hematology Center in 2014 and 2015, and objective evidence buttressing the Brink opinion of dysfunction of the cervical and lumbar spine in the form of Dr. Brink's extensive examination and treatment notes from November 2014 through October 2015. See Statement of Errors at 8.
However, as the commissioner rejoins, see Opposition at 7, those records postdate the plaintiff's DLI.
The plaintiff falls short of demonstrating any error in the ALJ's handling of the opinions of F.N.P. Picard or Dr. Brink, and remand is unwarranted on the basis of this point of error.
The ALJ found a medically determinable but nonsevere impairment of obesity, stating:
Record at 13. The plaintiff argues that, in violation of SSR 02-1p, the ALJ never explained what impact, if any, he found her obesity to have. See Statement of Errors at 8-9. However, as the commissioner observes, see Opposition at 11-12, her failure to identify any evidence that her obesity imposed greater functional limitations than those found by the ALJ precludes remand on the basis of this point of error, see, e.g., Webber v. Colvin, No. 2:13-cv-00236-NT, 2014 WL 3530705, at *3 (D. Me. July 15, 2014) (remand based on an ALJ's alleged failure to consider claimant's obesity unwarranted when claimant failed to explain how such consideration would have required a different outcome`).
The ALJ found that, while the plaintiff had "gone through a very difficult medical crisis and an extended period of recovery" as a result of her breast cancer, her "statements concerning the intensity, persistence and limiting effects of [her] symptoms [were] not entirely credible[.]" Record at 21. He explained that the plaintiff had largely recovered from her breast cancer within a year and then from subsequent breast reconstruction surgery within a year. See id. He also noted that none of her treating surgeons or oncologists had advised that she was unable to work or restricted her to less than sedentary level work, and that no record corroborated "her testimony that she can only sit or stand for a few minutes at a time or only lift and carry ten pounds." Id. He did, however, "accept[] as reasonable [the plaintiff's] allegations of some ongoing discomfort, especially with respect to the use of her arms for reaching or repetitive movements, given her surgeries to the chest and axillary areas[,]" adding that it was also "reasonable to infer some loss of stamina and conditioning that would limit her to light level work with some additional non-exertional limitations to address her complaints of back pain." Id.
The ALJ also accepted that the plaintiff suffered from depression and anxiety, "but not to the extent [she] alleged." Id. He noted:
Id. at 21-22.
The plaintiff takes issue with this evaluation, asserting that the ALJ's "findings regarding the timeline of [her] breast cancer and breast reconstruction recovery are erroneous, where the evidence of record demonstrates that she was still receiving treatment for breast cancer, breast reconstruction, and associated peripheral neuropathy in 2014 and 2015, as much as three years after she was initially diagnosed with breast cancer in August of 2012." Statement of Errors at 10 (citing Record at 948-59). She adds that the ALJ drew an impermissible negative inference from the absence of any assessment of work-related limitations by a treating surgeon or oncologist. See id. (quoting Social Security Ruling 96-7p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2016) ("SSR 96-7p"), at 133-34, for proposition that "[a]n individual's statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence").
Finally, she contends that the ALJ erred in deeming her allegations of mental health symptoms and limitations inconsistent with her treatment records and activities of daily living. See id. at 11. She incorporates by reference her discussion of the mental health evidence of record in connection with her challenge to the rejection of the Dixon opinion and asserts that there was no inconsistency between her testimony and her activities, in particular, her ability to take college courses in 2012 and 2013. See id.
SSR 96-7p provides that a "determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." SSR 96-7p at 134.
"The credibility determination by the ALJ, who observed the claimant, evaluated his demeanor, and considered how that testimony fit in with the rest of the evidence, is entitled to deference, especially when supported by specific findings." Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987).
I find no basis on which to disturb the credibility determination made in this case.
First, the fact that the plaintiff received treatment for the after-effects of her breast cancer and reconstruction surgery in 2014 and 2015 does not undermine the ALJ's contention that she had "largely recovered" from both within a year. Record at 21 (emphasis added). Even if it did, I agree with the commissioner, see Opposition at 9, that any error would be harmless because the ALJ gave other well-supported reasons for finding the plaintiff not entirely credible. See, e.g., Hadley v. Astrue, No. 2:10-cv-51-GZS, 2010 WL 5638728, at *3 (D. Me. Dec. 30, 2010) (rec. dec., aff'd Jan. 24, 2011) (declining to disturb ALJ's credibility finding when, even if claimant was correct in her assertion that two reasons for the finding were unsupported by the record, the ALJ supplied other well-supported reasons).
Second, the ALJ did not improperly draw a negative inference based on the absence of treating source assessments of work-related limitations. SSR 96-7p requires consideration of "the objective medical evidence" in determining the credibility of an individual's statements. SSR 96-7p at 133. While an ALJ may not disregard an individual's statements solely because they are unsubstantiated by objective medical evidence, see id. at 132-33, the ALJ did not do so here. To the contrary, he accepted some of the plaintiff's allegations as reasonable in the circumstances. See Record at 21.
Finally, the ALJ did not err in deeming the plaintiff's mental health allegations inconsistent with her treatment records or activities of daily living. As discussed above, the ALJ supportably deemed the Dixon opinion inconsistent with other evidence of record, including treatment notes from providers at both Counseling Services, Inc., and Psychiatric Associates of Southern Maine describing the plaintiff as having relatively normal grooming, hygiene, eye contact, speech, thought processes, attention, and concentration. He also reasonably deemed the plaintiff's activities inconsistent with the depression and anxiety symptoms alleged. The plaintiff asserts that, in discussing her ability to take college courses in 2012 and 2013, the ALJ overlooked her testimony on the subject. See Statement of Errors at 11; Record at 58-60 (plaintiff's testimony that after August 2012, she was able to take courses only online or when no one else was in the classroom and would freeze up when asked a direct question). However, the ALJ impliedly addressed and discounted this testimony, finding:
Record at 21-22. As the commissioner points out, see Opposition at 11, there was internal inconsistency among the plaintiff's statements, undermining their credibility. While she testified at hearing that she "kept failing [her] classes" during her cancer treatment, Record at 56, she told a treating source in January 2013 that she had done well in three of her classes and, in February 2013, that she was doing very well in school and taking two classes, see id. at 635-36.
Remand, accordingly, is unwarranted on the basis of this final point of error.
For the foregoing reasons, I recommend that the commissioner's decision be
