United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
Barbadoro United States District Judge
Susan Barup is a forty-five-year-old woman who previously
worked as a nurse's aide and home health aide, among
other positions. Barup challenges the Social Security
Administration's denial of her claim for disability
insurance benefits (“DIB”).
accordance with Local Rule 9.1, the parties have submitted a
joint statement of stipulated facts (Doc. No. 14). Because
that joint statement is part of the court's record, I do
not recount it here. I discuss facts relevant to the
disposition of this matter as necessary below.
STANDARD OF REVIEW
to 42 U.S.C. § 405(g), I have the authority to review
the administrative record and the pleadings submitted by the
parties, and to enter judgment affirming, modifying, or
reversing the final decision of the Commissioner. That review
is limited, however, “to determining whether the
[Administrative Law Judge] used the proper legal standards
and found facts [based] upon the proper quantum of
evidence.” Ward v. Comm'r of Soc. Sec.,
211 F.3d 652, 655 (1st Cir. 2000). I defer to the
Administrative Law Judge's (ALJ's) findings of fact,
so long as those findings are supported by substantial
evidence. Id. Substantial evidence exists “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)
(per curiam) (quoting Rodriguez v. Sec'y of Health
& Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).
substantial evidence standard is met, the ALJ's factual
findings are conclusive, even where the record
“arguably could support a different conclusion.”
Id. at 770. Findings are not conclusive, however, if
the ALJ derived his findings by “ignoring evidence,
misapplying the law, or judging matters entrusted to
experts.” Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999) (per curiam). The ALJ is responsible for
determining issues of credibility and for drawing inferences
from evidence in the record. Irlanda Ortiz, 955 F.2d at 769.
It is the role of the ALJ, not the court, to resolve
conflicts in the evidence. Id.
applied for DIB in November 2011, alleging an onset date of
April 12, 2011, which she later amended to April 15, 2011.
The ALJ initially denied her application in June 2013, but
the Appeals Council vacated the ALJ's decision and
remanded the case. On remand, the ALJ held a second hearing
in June 2015, at which Barup, represented by counsel, and a
vocational expert testified. In a written decision dated June
25, 2015, the ALJ again denied Barup's application for
applied the five-step sequential analysis outlined in 20
C.F.R. § 404.1520(a) to Barup's claim. At step one,
the ALJ determined that Barup had not engaged in substantial
gainful activity from the alleged onset date through the date
of the decision. The ALJ then found a number of severe
impairments at step two: left pronator syndrome, left carpal
tunnel syndrome, acromioclavicular (AC) joint disease, biceps
tendon disease, degenerative disc disease, and obesity. He
also considered a number of other impairments, but found them
non-severe: right shoulder and wrist pain, headaches,
fibromyalgia, and depression. In his step three analysis, the
ALJ concluded that none of Barup's impairments met or
medically equaled a listed impairment. After formulating
Barup's residual functional capacity (“RFC”),
the ALJ proceeded to step four and determined that Barup
could not perform any of her past relevant work. At step
five, the ALJ reached the conclusion that Barup was not
disabled because she could still perform a significant number
of jobs in the national economy.
Appeals Council subsequently declined to review the ALJ's
second decision in December 2015. The ALJ's decision now
constitutes the Acting Commissioner's final decision,
meaning the matter is ripe for judicial review.
appeal, Barup advances two main arguments for remand: (1) the
ALJ erred in his treatment of opinion evidence when crafting
her RFC, and (2) the ALJ failed to account for Barup's
non-severe impairments after step two. I address each
argument in turn, ultimately finding both unpersuasive.
Treatment of Opinion Evidence
argues that the RFC found by the ALJ lacks support because
the ALJ erred in his treatment of the opinion evidence in the
record. A claimant's RFC is “the most [the
claimant] can still do despite [her] limitations.” 20
C.F.R. § 404.1545(a)(1). On appeal, I determine whether
the assigned RFC is free of legal error and supported by
substantial evidence. See Nguyen, 172 F.3d at 35. Here, the
ALJ found that Barup could engage in “light
work” subject to a number of limitations:
she could stand or walk for two hours and sit for six hours
in an eight-hour day; she must avoid all ladders, ropes, and
scaffolds, but can occasionally climb ramps or stairs,
balance, stoop, kneel, crouch, and crawl; she can
occasionally reach overhead with the left upper extremity and
can frequently but not constantly perform fine and gross
manipulation with the non-dominant left hand; she should
avoid all heights or hazards and concentrated exposure to
extreme heat or cold temperatures and vibrations.
Tr. at 25.
ultimately concluded that although “the claimant's
medically determinable impairments could reasonably be
expected to cause the alleged symptoms . . . the
claimant's statements concerning the intensity,
persistence and limiting effect of these symptoms are not
entirely credible.” Tr. at 26. The ALJ reached this
conclusion based on an extensive discussion of the objective
evidence in the record, followed by an examination of the
on his evaluation of the objective evidence in the record,
the ALJ determined that Barup's severe impairments lacked
sufficient “treatment history, objective medical
evidence, and clinical findings to support a finding of
disability.” Tr. at 26. The ALJ devoted significant
space to a summary of Barup's treatment history for her
severe impairments. See Tr. at 26. After complaining of back
pain, Barup had an MRI of the lumbar spine in January 2010,
showing disc bulges and mild degeneration. See Tr. at 26.
Treatment provided Barup some relief, but she complained
again in March 2011 of radiating back pain. Tr. at 26. On
examination, Barup described tenderness and pain during some
movements, but also showed strength in the extremities and
other signs of mild impairment. See Tr. at 26-27.
April 2011, Barup injured her left shoulder in a work-related
incident. She underwent an EMG test in May 2011 after
describing pain in her upper left extremity and was diagnosed
with mild to moderate left pronator syndrome. Tr. at 27. She
continued to complain of pain in the lower back and upper
left extremity through 2011, receiving treatment at both
locations. See Tr. at 27.
reported lower back and upper extremity pain continued into
2012. A February 2012 MRI of her left shoulder showed an
“extensive partial tear of the supraspinatus tendon,
” “moderate to marked arthrosis of the left AC
join with inferior osteophyte formation, ” and
“thickening of the middle glenohumeral ligament.”
Tr. at 27. Following the MRI and unsuccessful physical
therapy, Barup had left shoulder surgery in April 2012. As of
December 2012, however, she continued to have pain and
numbness in her left arm and exhibited tenderness and
decreased range of motion in the left shoulder. Tr. at 27.
Further, a September 2012 MRI of the cervical spine showed
degeneration and encroachment, but no spinal stenosis or
significant foraminal narrowing. Tr. at 27.
January 2013, Barup treated with Dr. Philip Savia. See Tr. at
28. After another MRI of the left shoulder in February -
which suggested tendinopathy, a partial tear, or
complications from prior surgery - Barup continued to exhibit
pain in the upper left extremity and decreased range of
motion during two March 2013 examinations. Tr. at 28.
March 2013 treatment with Dr. Praveen Suchdev, Barup received
an injection in her left shoulder. At a follow-up May 2013
treatment, Barup “reported a 70 percent improvement in
the left shoulder following the procedure.” See Tr. at
28. Dr. Suchdev diagnosed Barup with cervical radiculitis,
myofascial pain syndrome, AC joint dysfunction, and shoulder
arthralgia. Tr. at 28.
also treated with Dr. Jon Warner in May 2013. On examination,
Barup showed left shoulder tenderness, but also strength and
supportably mild limitation in range of motion. See Tr. at
28. X-rays obtained during the visit “showed some mild
AC joint degenerative changes as well as mild glenohumeral
joint degenerative changes.” Tr. at 28. At a June 2013
follow-up, Dr. Warner noted that his examination supported
diagnoses of biceps tendon disease, impingement, and AC joint
disease. Tr. at 28. He did not recommend further AC
injections or note any functional limitations, though he did
suggest additional surgery if Barup's pain persisted. Tr.
discussing Barup's treatment history, the ALJ next
outlined the limitations that Barup and her husband had
testified to at the first hearing. Barup alleged a need to
change positions to avoid back pain, occasional use of a
walker, and dizziness and inability to concentrate caused by
her medications. Tr. at 29. She also noted difficulty
dressing caused by her left hand impairment. Tr. at 29.
Barup's husband, Christopher Blackler, reiterated some of
Barup's limitations, including her difficulties dressing
and walking. Tr. at 29. He added that she had trouble tying
her shoes, had issues with her memory, and suffered from
headaches. Tr. at 29.
reasoned that the record as a whole failed to support
Barup's alleged limitations, because “the
claimant's symptoms may not be accurately reported, may
not exist at the level of severity assumed . . . and may have
other mitigating factors against their negative impact on
claimant's [functional] ability.” Tr. at 29. The
ALJ pointed to specific evidence in the record to support his
conclusion, including an October 2011 examination for back
pain during which Barup “was able to stand and ambulate
without difficulty, and her gait was normal”; the
January 2013 opinion of Dr. Savia that her shoulder injury
typically would not cause the paresthesia complained of; and
the strength and range of motion in the shoulder demonstrated
at Dr. Warner's May 2013 examination. Tr. 29-30. The ALJ
added that although Barup used a walker at the first hearing
in June 2013, she did not use one at a January 2013
occupational evaluation. Tr. at 30.
closed his discussion of the objective evidence by explaining
- with a number of citations to the record - that Barup's
clinical presentation had been mild since the initial denial
of benefits and the record did not suggest increased
functional limitations arising in the interim. See Tr. at 30-
analyzed the objective evidence, the ALJ proceeded to weigh
the opinion evidence. The ALJ placed great weight on the
January 2012 opinion of state reviewing physician Hugh
Fairley, M.D., because Dr. Fairley's opinion was
consistent with the objective evidence in the record. See Tr.
at 32. In pertinent part, Dr. Fairley opined that Barup could
work at a sedentary exertional level, but only engage in
limited pushing and pulling with the left upper extremity and
occasional overhead reaching with the left upper extremity.
See Tr. at 114-15. The ALJ rejected Dr. Fairley's
sedentary limitation, citing more recent evidence in the
record and a January 2013 opinion by occupational therapist
Ryan Gatchell. Tr. at 32.
next placed little weight on the January 2013 opinion of
examining physician Karen Huyck, M.D. Tr. at 32. Dr. Huyck
indicated that functional capacity testing was to be
arranged, but opined that Barup could not return to work. Tr.
at 857. The ALJ explained that he gave the opinion little
weight because it was conclusory, ...