United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
BARBADORO UNITED STATES DISTRICT JUDGE.
Dimambro challenges the partial denial of her claim for
Social Security disability income benefits
(“SSDI”), pursuant to 42 U.S.C. § 405(g).
She contends that the Administrative Law Judge
(“ALJ”) erred in formulating her residual
functional capacity (“RFC”) by improperly
omitting certain limitations from his assessment and
improperly weighing the opinion of her treating physician.
The Acting Commissioner, in turn, moves for an order
affirming the ALJ's decision. For the reasons that
follow, I deny Dimambro's motion and affirm the
is a 52 year-old woman, who was 49 years-old on the date of
her hearing before the ALJ. Doc. No. 11 at 2. In the past,
she has worked as a hostess, receptionist, sales associate,
and manager of a hair salon. Id. Most recently, and
dating back until 2000, Dimambro worked as a paraprofessional
and teacher's aide, which she continued, at least on a
part-time basis, until June 2014. See Administrative
Transcript (“Tr.”) 19, 29, 220, 263. She alleges
that she has been disabled since November 1, 2013, due to a
combination of physical and mental impairments, including
certain diseases linked to chronic neck and back pain,
depression, anxiety-related disorders, ADHD, and a learning
disability. See Tr. 19, 23.
the initial denial of her benefits claim in April 2014,
Dimambro requested a hearing before an ALJ, which was held on
July 27, 2015. Tr. 16. On November 3, 2015, the ALJ issued
his decision, concluding that Dimambro was not disabled prior
to July 27, 2015, but became disabled on that date due to a
change in her age category under 20 C.F.R. § 404.1563.
Tr. 29-31. On September 30, 2016, the SSA Appeals Council
denied her request to review the ALJ's decision, thus
making that decision final. Doc. No. 11 at 2. Dimambro now
THE ALJ'S DECISION
reached his conclusion after applying the five-step,
sequential analysis required by 20 C.F.R. § 404.1520 to
Dimambro's claim. At step one, the ALJ found that
Dimambro had not engaged in substantial gainful activity
since November 1, 2013, her alleged disability onset date,
despite some part-time work as a teacher's aide up until
June 30, 2014. Tr. 18-19. At step two, the ALJ found that
Dimambro had severe impairments of “degenerative disc
disease; Graves' hyperthyroidism; fibromyalgia;
depression; anxiety-related disorders (variedly diagnosed as
a post-traumatic stress disorder and anxiety disorder, nos);
an attention deficit hyperactivity disorder, and [a] learning
disability.” Id. He rejected Dimambro's
claim that she suffered from chronic fatigue syndrome and
sleep apnea, finding no acceptable medical evidence of those
impairments on record. Id. at 20. He did, however,
consider the alleged symptoms of sleep disturbance, insomnia,
and fatigue in conjunction with her fibromyalgia and
three, the ALJ found that none of Dimambro's impairments,
individually nor in combination, qualified for any impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Id.; see 20 C.F.R. § 404.1520(d), 404.1525 and
404.1526. Specifically, the ALJ considered Dimambro's
spinal, affective, and anxiety-related disorders under the
pertinent listings, but demonstrate the required severity.
See Tr. 21-22. In reaching that conclusion with regards to
her mental impairments, the ALJ thoroughly considered the so
called “paragraph B” criteria. The ALJ also
found that Dimambro's mental impairments resulted in mild
restrictions in activities of daily living, mild to moderate
difficulties in social functioning, and moderate difficulties
with regard to concentration, persistence, or pace. Tr.
21-22. In so concluding, he considered Dimambro's
apparent ability to perform various activities
notwithstanding her impairments, i.e. laundry, driving,
shopping, cooking, cleaning, paying bills, maintaining
relationships with her four daughters, running errands,
watching television, reading fiction, and organizing her
four, the ALJ determined that Dimambro had the RFC to perform
sedentary work, as defined in 20 C.F.R. § 404.1567(a),
with certain limitations. Tr. 22. Regarding physical
limitations, the ALJ found that Dimambro was only able to
lift and carry up to ten pounds frequently, and, in an
eight-hour workday, to stand and/or walk for up to two hours
in total and sit for up to six hours in total. See Tr. 22. He
further found that she could perform all postural activities
only occasionally, but had unlimited use of her hands and
feet to push and/or pull. Id. Regarding mental
limitations, the ALJ determined that Dimambro was “able
to understand, remember, and carry out simple [one-to-three]
step tasks for [two]-hour periods over the course of an
[eight]-hour workday and 40-hour work week consistent with
the performance of unskilled work activity.”
Id. In light of this RFC, the ALJ concluded that
Dimambro could not return to her past relevant work as a
paraprofessional or teacher's aide. Tr. 28-29.
at step five, the ALJ ultimately determined that Dimambro was
“not disabled” prior to July 27, 2015, but became
disabled on that date due to a change in her age
category. The ALJ first found that, in light of her
age prior to July 27, 2015 (i.e. under age 50 or
“younger person”), along with her education, work
experience, and RFC, Dimambro was capable of performing
certain sedentary jobs that existed in significant No. in the
national economy. See Tr. 30. Accordingly, the ALJ found
that Dimambro was “not disabled” during that
time. Tr. 30. However, he further found that Dimambro's
age category changed to “person closely approaching
advanced age” on July 27, 2015, as she was by then
nearly 50 years-old, and therefore found that Dimambro was
“disabled” as of that date. See Tr. 29-30.
STANDARD OF REVIEW
authorized to review the pleadings submitted by the parties
and the administrative record and enter a judgment affirming,
modifying, or reversing the “final decision” of
the Commissioner. See 42 U.S.C. § 405(g). That review is
limited, however, “to determining whether the ALJ 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 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)).
ALJ's factual findings are supported by substantial
evidence, they are conclusive, even where the record
“arguably could support a different conclusion.”
Id. at 770. If, however, the ALJ derived her
findings by “ignoring evidence, misapplying the law, or
judging matters entrusted to experts, ” her findings
are not conclusive. Nguyen v. Chater, 172 F.3d 31,
35 (1st Cir. 1999) (per curiam). The ALJ is responsible for
determining issues of credibility, drawing inferences from
evidence in the record, and resolving conflicts in the
evidence. See Irlanda Ortiz, 955 F.2d at 769.
contends that the ALJ's decision was not supported by
substantial evidence based on two grounds. First she argues
that the ALJ's RFC assessment was deficient because he
failed to account for certain functional limitations
identified by two consultative psychologists. See Doc. No.
8-1 at 5-9. Second, she argues that the ALJ erred in his
physical RFC assessment by giving less than controlling
weight to the opinions of her treating rheumatologist, Dr.
Susan Ritter, without providing “good
reasons.” See Id. at 9-16.
response, the Acting Commissioner contends that the ALJ's
decision is supported by substantial evidence and should be
affirmed. She argues that the limitations identified by
Dimambro as being omitted from the ALJ's mental RFC were
all either appropriately incorporated, rejected, or
irrelevant, and that the ALJ provided “good
reasons” for discrediting Dr. Ritter's opinions.
Doc. No. 10-1 at 1. I address, and reject each of
Dimambro's arguments in turn.
Failure to Include Specific Limitations in RFC
first claims that the ALJ erred in formulating her RFC by
failing to account for several functional limitations
identified by two consultative experts. She argues that the
ALJ, as a layperson, was not qualified to disregard
“uncontroverted mental health opinions” that
apparently stated she could only work in settings with
“additional supervision” and other special
workplace conditions. See Doc. No. 8-1 at 5. Therefore, she
argues, the ALJ's RFC assessment was not supported by
substantial evidence without the limitations that predicated
the experts' RFC opinions. She makes this argument by
pointing to the opinions of two consultative psychologists,
Dr. Benjamin Garber and Dr. William Jamieson. Doc. No. 8-1 at
5-7. Both psychologists essentially opined that Dimambro was
able to perform “simple” work despite her mental
impairments. See Tr. 79 (Dr. Jamieson); Tr. 707 (Dr. Garber).
Dimambro does not now challenge the weight given to these
opinions, but rather claims that the ALJ either wrongfully
rejected or inadequately accounted for several so-called
limiting conditions on which the opinions were purportedly
predicated. See Doc. No. 8-1 at 5-8.
claimant's RFC is “the most [the claimant] can
still do despite [his] limitations.” 20 C.F.R. §
416.945(a)(1). The ALJ is responsible for determining a
claimant's RFC based on all relevant evidence in the
record. 20 C.F.R. § 416.945(a)(1); see Lord v.
Apfel, 114 F.Supp.2d 3, 13 (D.N.H.2000); Stephenson
v. Halter, 2001 DNH 154, *4-5. In making that
determination, she is dually responsible for resolving any
conflicts in the evidence. See Gonzalez-Garcia v.
Sec'y of Health & Human Servs., 835 F.2d 1, 3
(1st Cir. 1987). The ALJ is further required to evaluate
“every medical opinion” that a claimant submits,
“[r]egardless of its source.” 20 C.F.R. §
416.927(c). Accordingly, an ALJ must explain in the decision
the weight given to any opinions from “treating
sources, nontreating sources, and other nonexamining
sources.” Sastre v. Astrue, 970 F.Supp.2d 267,
275-276 (D. Mass. 2012); see 20 C.F.R. § 416.927(c).
Ordinarily, therefore, an ALJ's failure to consider a
medical opinion in the record at all is legal error that
requires remand. See Nguyen v. Chater, 172 F.3d 31,
35-36 (1st Cir. 1999). This general rule, however, is not
without exception. An ALJ need not address every individual
piece of evidence in the record that is either cumulative or
unhelpful to the claimant's position. See Lord v.
Apfel, 114 F.Supp.2d 3, 13 (D. N.H. 2000). Although an
ALJ is not free to simply ignore medical opinions supporting
a claimant's position, she remains free to independently
evaluate their weight. See Charron v. Astrue, 2013
DNH 156, *5. She can accept each piece of evidence
completely, partially, or not at all, provided that she does
so on “well-supported grounds.” See Molina v.
Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012).
March 19, 2015, Dr. Garber, a licensed psychologist, examined
Dimambro and prepared a mental health evaluation report at
the request of the New Hampshire Disability Determination
Service (“DDS”). Tr. 703. In his report, he
concluded that Dimambro suffered from chronic and moderate
major depression, PTSD, ADD, and a learning disability. Tr.
707. He assigned her a “GAF” score of 70.
Id. As part of his evaluation, Dr. Garber was
required to provide his opinion regarding Dimambro's
“ability to function in terms of appropriateness,
independence, quality and sustainability of function.”
Tr. 706. That process required Dr. Garber to opine as to the
extent of any functional limitations resulting from
Dimambro's impairments, along with her retained function
despite those impairments, in five defined areas. Tr.
706-707. In one of those areas, entitled “understanding
and remembering instructions, ” Dr. Garber wrote the
following: “[Dimambro] is able to understand and
remember simple spoken and written instructions at least in a
minimally stimulating, highly structured and closely
supervised environment.” Tr. 707 (emphasis added).
formulating Dimambro's RFC, the ALJ gave Dr. Garber's
opinion substantial weight. Tr. 28. To reiterate, the
ALJ's mental RFC provided that “[Dimambro] is able
to understand, remember, and carry out simple ([one-to-three]
step) tasks for [two]-hour periods over the course of an
[eight]-hour workday and 40-hour work week consistent with
the performance of unskilled work activity.” Tr. 22.
However, the ALJ further found a “lack of evidence to
indicate that [Dimambro] would require a minimally
stimulating, highly structured and ...