United States District Court, D. New Hampshire
McCafferty United States District Judge
Achilles seeks judicial review, pursuant to 42 U.S.C. §
405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying his application for
Supplemental Security Income (“SSI”) under Title
XVI. Achilles moves to reverse the Commissioner's
decision, contending that the Administrative Law Judge
(“ALJ”) erred in failing to give substantial
weight to his treating physician's opinion and erred in
her residual functional capacity assessment. The Acting
Commissioner moves to affirm. For the reasons that follow,
the decision of the Acting Commissioner is affirmed.
reviewing the final decision of the Acting Commissioner in a
social security case, the court “is limited to
determining whether the ALJ deployed the proper legal
standards and found facts upon the proper quantum of
evidence.” Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999); accord Seavey v. Barnhart, 276 F.3d
1, 9 (1st Cir. 2001). The court defers to the ALJ's
factual findings as long as they are supported by substantial
evidence. § 405(g); see also Fischer v. Colvin,
831 F.3d 31, 34 (1st Cir. 2016).
determining whether a claimant is disabled, the ALJ follows a
five-step sequential analysis. 20 C.F.R. § 416.920. The
claimant bears the burden through the first four steps of
proving that her impairments preclude her from
working. Freeman v. Barnhart, 274 F.3d
606, 608 (1st Cir. 2001). At the fifth step, the Acting
Commissioner has the burden of showing that jobs exist which
the claimant can do. Heggarty v. Sullivan, 947 F.2d
990, 995 (1st Cir. 1991).
September 13, 2013, Achilles filed for SSI benefits, alleging
disability due to seizures and severe back pain. He
originally alleged that he became disabled on November 15,
2008, but amended his onset date to November 21, 2012. He was
36 years old in 2012 when he alleges that he became disabled.
medical records related to Achilles' back pain begin in
November 2012 when Achilles saw Dr. Adam Pearson, complaining
of a history of chronic back pain that had increased in the
previous six months. Upon physical examination, Achilles
appeared comfortable and in no acute distress with normal
gait and leg strength, although he was tender in his back on
palpation and his ability to flex and extend was limited by
pain. Dr. Pearson noted that Achilles had undergone an MRI in
July 2012 which showed some degenerative changes but no
scoliosis or spondylolisthesis. Dr. Pearson also noted that
Achilles's back pain was not radicular, and he scheduled
Achilles for medical branch blocks.
19, 2013, Achilles went to Paincare Centers for his back pain
and was examined by Francis Valenti, APRN, CPNA. Nurse
Valenti found that Achilles's gait, spine alignment, and
mobility were normal, and that he had normal range of motion
and strength in his arms and legs. Nurse Valenti administered
facet joint injections, which Achilles said did not help his
everyday pain, although he appeared to be normal on
examination. Achilles was referred to physical therapy to
improve his overall conditioning.
August 2013, Achilles's primary care provider, Sonya
Gilbert PA-C (a Certified Physician Assistant), noted that
oxycodone was generally effective in controlling
Achilles's back pain and that he took it only when the
pain was severe. PA Gilbert's examination showed normal
results although Achilles had a limited range of motion due
to pain. Achilles saw PA Gilbert again in October and
December 2013 and had similar exams, though he used a cane
for assistance during the December visit.
saw Nurse Valenti at Paincare Centers again on September 25,
2013, and complained that physical therapy had exacerbated
his lower-back pain, which was now radiating to his left leg.
Despite those complaints, Achilles's examination yielded
normal results. Nurse Valenti recommended a lumbar MRI to
rule out a spinal disc issue. Achilles did not have an MRI
and did not return to Paincare Centers.
2014, Achilles told PA Gilbert that oxycodone was no longer
working, and she increased the dosage. Upon examination,
Achilles was pleasant and in no acute distress, although he
had some indications of back pain. PA Gilbert ordered a
lumbar MRI, but Achilles was unable to get the MRI because of
Gilbert referred Achilles to Dr. Paul Kamins for an
orthopedic evaluation, which was done on October 9, 2014.
Upon examination, Achilles had positive straight-leg raising
on the left and pain while bending. His other results,
including strength, were normal. Dr. Kamins ordered a lumbar
MRI, which showed a disc protrusion, a disc osteophyte, and
mild right-sided foraminal narrowing. The reviewing
radiologist noted that the foraminal narrowing was also
present on the November 2012 MRI, and observed that
“there is nothing seen on the left side to correspond
to the patient's increasing symptomatology.” B.
Seizures and Mental Health On January 25, 2013, Achilles saw
Dr. Gopalan Umashankar for evaluation of his seizures, and
Achilles reported incidents of twitching, drooling, and some
incontinence “after coming off the dilantin.” Dr.
Umashankar prescribed Keppra and Lamictal for a four-week
trial, and instructed Achilles not to drive.
March 7, 2013, Achilles again saw Dr. Umashankar complaining
of frequent staring spells. His examination was unremarkable
and Dr. Umashankar noted that it was “unclear if these
staring spells are truly seizures or if the[s]e are
absentmindedness.” Dr. Umashankar ordered a 24-hour EEG
study, which confirmed that Achilles had general epilepsy but
the EEG was normal, despite Achilles's report of seizures
during the test.
saw Dr. Barry Roth, a psychiatrist, for depression several
times in late 2012 and early 2013 without any significant
findings. On March 20, 2013, Achilles underwent a
neuropsychological evaluation with Dr. Matthew Holcomb, a
postdoctoral fellow operating under the supervision of Dr.
Robert Roth, a neuropsychologist. Dr. Holcomb found that the
testing and Achilles's reports were consistent with
“mild frontal-temporal systems dysfunction, possibly
greater for the left hemisphere, ” and that “the
etiology of [Achilles's] cognitive problems is likely
multifactorial including seizures and ADHD.” Dr.
Holcomb also felt that moderate to severe emotional distress
was playing a central role in Achilles's cognitive
functioning. He recommended proactive planning and
organizational strategies, and advised Achilles to limit
distractions, take occasional breaks, and maintain a healthy
2013, Achilles saw Maria McHose, PMHNP, who treated him for
ADHD and depression. Nurse McHose noted that Achilles was
cooperative and friendly, had normal thoughts, a grossly
intact memory, fair insight and judgment, and questionable
impulse control. Nurse McHose later diagnosed Achilles with
ADHD and depression, and assigned him a Global Assessment of
Functioning (“GAF”) score of 61, which indicates
McHose found similar results at subsequent visits.
Eventually, Nurse McHose prescribed Lexapro, and added
Vyvnase in February 2014 to address Achilles's reports of
“persistent avolition and attentional
difficulties.” In December 2013, Achilles twice sought
emergency treatment for seizures. When he followed up with
Dr. Umashankar on December 9, 2013, Dr. Umashankar observed
an episode that he characterized as a psychogenic
non-epileptic seizure, and prescribed Lexapro and counseling.
He advised Achilles that he did not need to seek emergency
treatment for these non-epileptic episodes and should just
lie down until they passed.
January 8, 2014, Achilles saw Dr. Krzysztof Bujarski, a
neurologist, who noted that Achilles had been diagnosed with
idiopathic generalized epilepsy but had been doing quite well
on medication until two months ago. He noted that Achilles
reported experiencing new seizures and that he had had 50
such seizures in the two months prior to his appointment with
Dr. Bujarski. Dr. Bujarski diagnosed him with likely
“psychogenic nonepileptic seizures.” Achilles
subsequently underwent EEG video monitoring to determine the
etiology of his new reported seizures. During the overnight
monitoring, Achilles had one event that did not register on
the EEG, suggesting that it was not related to epilepsy.
13, 2013, Achilles went to the hospital with a complaint of
“episodic unresponsiveness, ” and his wife stated
that he had occasionally been unresponsive for the past three
days. During a neurologic examination, he followed commands,
but slowly. He was diagnosed with conversion disorder and
discharged with instructions to follow up with his primary
March 2015, Achilles saw Dr. Umashankar. Achilles's wife
and mother, who went with him to the visit, told Dr.
Umashankar that Achilles had memory problems and had
“one seizure like the old real seizure.” Dr.