United States District Court, D. New Hampshire
N. Laplante United States District Judge
Deoliveira moves to reverse the decision of the Acting
Commissioner of the Social Security Administration
(“SSA”) to deny her applications for Social
Security disability insurance benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C. §
423, and for supplemental security income (“SSI”)
under Title XVI, 42 U.S.C. § 1382. The Acting
Commissioner, in turn, moves for an order affirming her
decision. For the reasons that follow, the decision of the
Acting Commissioner, as announced by the Administrative Law
Judge (“ALJ”) is affirmed.
Standard of Review
applicable standard of review provides, in pertinent part:
The [district] court shall have power to enter, upon the
pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a
rehearing. The findings of the Commissioner of Social
Security as to any fact, if supported by substantial
evidence, shall be conclusive . . . .
42 U.S.C. § 405(g) (setting out standard of review for
decisions on claims for DIB); see also 42 U.S.C. §
1383(c)(3) (applying § 405(g) to SSI decisions).
However, the court “must uphold a denial of social
security disability benefits unless ‘the [Acting
Commissioner] has committed a legal or factual error in
evaluating a particular claim.’”
Manso-Pizarro v. Sec’y of HHS, 76 F.3d 15, 16
(1st Cir. 1996) (per curiam) (quoting Sullivan v.
Hudson, 490 U.S. 877, 885 (1989)).
As for the standard of review that applies when an applicant
claims that an SSA adjudicator made a factual error,
[s]ubstantial-evidence review is more deferential than it
might sound to the lay ear: though certainly “more than
a scintilla” of evidence is required to meet the
benchmark, a preponderance of evidence is not. Bath Iron
Works Corp. v. U.S. Dep’t of Labor, 336 F.3d 51,
56 (1st Cir. 2003) (internal quotation marks omitted).
Rather, “[a court] must uphold the [Acting
Commissioner’s] findings . . . if a reasonable mind,
reviewing the evidence in the record as a whole, could accept
it as adequate to support [her] conclusion.”
Rodriguez v. Sec’y of Health & Human
Servs., 647 F.2d 218, 222 (1st Cir. 1981) (per curiam).
Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).
addition, “‘issues of credibility and the drawing
of permissible inference from evidentiary facts are the prime
responsibility of the [Acting Commissioner],’ and
‘the resolution of conflicts in the evidence and the
determination of the ultimate question of disability is for
[her], not for the doctors or for the courts.’”
Id. (quoting Rodriguez, 647 F.2d at 222). Thus, the
court “must uphold the [Acting Commissioner’s]
conclusion, even if the record arguably could justify a
different conclusion, so long as it is supported by
substantial evidence.” Tsarelka v. Sec’y of
HHS, 842 F.2d 529, 535 (1st Cir. 1988) (per curiam).
parties have submitted a Joint Statement of Material Facts.
That statement is part of the court’s record and is
summarized here, not repeated in full.
April of 2014, Deoliveira’s medical history has
included at least five trips to emergency rooms or urgent
care, and she has received treatment from approximately a
dozen different medical professionals.
Deoliveira’s trips to the emergency room took place in
October of 2016, about 10 days after she was involved in a
motor-vehicle accident in which she suffered a
“whiplash-type injury and head injury
posteriorly.” Administrative Transcript (hereinafter
“Tr.”) 852. She presented at the emergency room
with “a severe diffuse headache,” id., which
represented an increase in severity over the moderate
headaches she had been having over the 10 days after her
accident. The medical note generated by Deoliveira’s
October 2016 emergency-room visit also states:
Patient does give a history of prior CVA in 2008 . . . and
final diagnosis was left ICA dissection with resultant
complete occlusion and treated with anticoagulation x1 year,
followed by daily aspirin.
Id. CVA is an “[a]bbreviation for
cerebrovascular accident” Stedman’s Medical
Dictionary 474 (28th ed. 2006), which is “an imprecise
term for cerebral stroke,” Id. at 10.
November 9, 2016, Deoliveira saw a neurologist, Dr. Sachin
Dave, who noted both her stroke and her recent motor-vehicle
accident. His examination findings include the following:
“CORTICAL FUNCTIONS: alert and oriented X 3,
comprehension and language intact, speech fluent.” Tr.
1010. Based upon his examination, he gave diagnoses of
headache, cervicalgia, and concussion syndrome, and he
offered this explanation:
. . . had [a motor-vehicle accident] last month with possible
head injury or concussion and whiplash type neck
addition to the diagnoses in Dr. Dave’s note,
Deoliveira has received diagnoses of bilateral knee pain,
osteoarthritis in both knees, fibromyalgia, inflammatory
arthritis with a possible autoimmune disorder, a
muscle-tension headache, acute post-traumatic headache, an
acute cervical sprain, low-back pain, left ear
tinnitus, major depression, anxiety, and insomnia.
For her physical impairments, she has been treated with ice,
medication, and some physical therapy. On occasion,
however, she has declined to engage in physical therapy, and
has declined injections for the pain associated with her
physical impairments. For her mental impairments, she has
been treated primarily with medication, although therapy
has also been prescribed.
September of 2015, Deoliveira applied for DIB and SSI,
claiming that she became disabled on April 4, 2014, as a
result of fibromyalgia, lower-back pain, pain in her upper
neck and head, a blood clot in her head resulting from a mild
stroke, continuous pain, headaches, stress and anxiety,
depression, and trouble walking. She later revised the
alleged onset date of her disability to July 18, 2015, which
coincides with a visit to urgent care for knee pain.
record includes eight statements by medical or other
professionals that discuss Deoliveira’s physical or
mental impairments, each of which was evaluated by the ALJ,
and each of which is at issue in claimant’s appeal. To
avoid unnecessary redundancy, the court will defer its
description of those statements to the discussion section of
the SSA denied Deoliveira’s applications for DIB and
SSI, she received a hearing before an ALJ. At the hearing,
the ALJ heard testimony from a vocational expert
(“VE”), to whom she posed several hypothetical
questions. First, the ALJ asked the VE
to consider an individual of the claimant’s age,
education, and work history [who] is limited to work at a
light exertional level. No. climbing of ladders, ropes, or
scaffolds. No. overhead lifting. The work should not include
an assembly line belt pace; no concentrated exposure to
potential hazards – moving machinery, unprotected
heights, things like that.
Tr. 103. The VE testified that a person with those
limitations could not perform Deoliveira’s past work as
a limousine/taxi driver, but could perform her past work as a
further testified that a person with those limitations could
perform the unskilled jobs of school-bus monitor, fruit
distributor, and counter clerk. The ALJ asked a second
hypothetical question that included this additional
Standing and walking about half time, four hours of an
eight-hour day, and the individual has the option or
opportunity, because of the kind of job, to change positions,
stretch, that sort of thing, two to three times an hour for a
minute or 2.
Tr. 104-05. According to the VE, that additional limitation
would preclude a person from performing Deoliveira’s
past work as a personal attendant, but would allow her to
perform the unskilled jobs of information clerk, ticket
taker, and parking-lot cashier, “as long as the
individual would be able to maintain on-task behavior for 90
percent of the work day,” Tr. 106.
Deoliveira’s hearing, the ALJ issued a decision in
which she found that claimant had these severe impairments:
degenerative joint disease of the cervical spine; residual
effects of [a] remote mild cerebrovascular accident;
fibromyalgia; depression; insomnia; and anxiety.
Tr. 21. Then, after finding that none of Deoliveira’s
impairments, either alone or in combination, met or medically
equaled the severity of any of the impairments on the
SSA’s list of impairments that are per se disabling,
the ALJ provided this assessment of Deoliveira’s RFC:
[T]he claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she is limited to standing and walking four
hours out of an eight-hour day; the work must be able to be
performed seated or standing at the option of the employee;
she cannot climb ladders, ropes, or scaffolds; and she cannot
perform any overhead lifting. Work should be unskilled and
not include an assembly line belt pace; and she should have
no concentrated exposure to potential hazards (such as moving
machinery, unprotected heights, etc.).
Tr. 25. In the end, the ALJ determined that Deoliveira was
unable to perform her past work, but could perform the jobs
of school-bus monitor, fruit distributor, information clerk,
ticket taker, and parking-lot cashier. Consequently, the ALJ
found that Deoliveira was not under a disability from July
18, 2015, through the date of her decision, which was
February 27, 2017.
eligible for disability insurance benefits, a person must:
(1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be
under a disability. 42 U.S.C. § 423(a)(1)(A)-(D). To be
eligible for supplemental security income, a person must be
aged, blind, or disabled, and must meet certain requirements
pertaining to income and assets. 42 U.S.C. § 1382(a).
The only question in this case is whether the ALJ correctly
determined that Deoliveira was not under a disability from
July 18, 2015, through February 27, 2017.
decide whether a claimant is disabled for the purpose of
determining eligibility for either DIB or SSI, an ALJ is
required to employ a five-step sequential evaluation process.
See 20 C.F.R. §§ 404.1520 (DIB) & 416.920
The steps are: 1) if the [claimant] is engaged in substantial
gainful work activity, the application is denied; 2) if the
[claimant] does not have, or has not had within the relevant
time period, a severe impairment or combination of
impairments, the application is denied; 3) if the impairment
meets the conditions for one of the “listed”
impairments in the Social Security regulations, then the
application is granted; 4) if the [claimant’s]
“residual functional capacity” is such that he or
she can still perform past relevant work, then the
application is denied; 5) if the [claimant], given his or her
residual functional capacity, education, work experience, and
age, is unable to do any other work, the application is
Purdy, 887 F.3d at 10 (quoting Seavey v. Barnhart,
276 F.3d 1, 5 (1st Cir. 2001); citing 20 C.F.R. §
first four steps in the sequential evaluation process, the
claimant bears both the burden of production and the burden
of proof. See Purdy, 887 F.3d at 9 (citing Freeman v.
Barnhart, 274 F.3d 606, 608 (1st Cir. 2001)); see also
Bowen v. Yuckert, 482 U.S. 137, 146 (1987). She must
prove she is disabled by a preponderance of the evidence.
See Mandziej v. Chater, 944 F. Supp. 121, 129
(D.N.H. 1996) (citing Paone v. Schweiker, 530 F.
Supp. 808, 810-11 (D. Mass. 1982)). Finally,
[i]n assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including: (1)
objective medical facts; (2) [claimant]’s subjective
claims of pain and disability as supported by the testimony
of the claimant or other witness; and (3) the
[claimant]’s educational background, age, and work
Mandziej, 944 F. Supp. at 129 (citing Avery v.
Sec’y of HHS, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote v. Sec’y of HHS, 690 F.2d 5, 6 (1st
claims that the ALJ erroneously determined her RFC by
improperly: (1) evaluating her testimony about her symptoms;
and (2) weighing the medical-opinion evidence. Neither claim
has merit. The court considers each in turn.
Claimant’s Statements about her Symptoms
decision, the ALJ gave only partial weight to
Deoliveira’s statements about her symptoms, principally
pain and memory problems. She explained that
“claimant’s statements concerning the intensity,
persistence and limiting effects of [her] symptoms are not
entirely consistent with the medical evidence and other
evidence in the record.” Tr. 28. According to claimant,
the ALJ erred by: (1) assessing her credibility, rather than
evaluating her statements about her symptoms, in violation of
the guidance provided by Social Security Ruling
(“SSR”) 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16,
2016); and (2) improperly relying upon her non-compliance
with treatment and a lack of substantiating objective medical
evidence as reasons for discounting her statements. The court
begins by outlining the applicable legal principles and then
turns to Deoliveira’s two claims of error.
principles. In 2016, the SSA promulgated SSR 16-3p,
which is titled “Evaluation of Symptoms in Disability
Claims,” and which “provide[d] guidance about how
[the SSA] evaluate[s] statements regarding the intensity,
persistence, and limiting effects of symptoms in disability
claims under Titles II and XVI of the Social Security
Act.” 2016 WL 1119029, at *1. Under the heading
“Purpose,” the SSA explained:
[W]e are eliminating the use of the term
“credibility” from our sub-regulatory policy, as
our regulations do not use this term. In doing so, we clarify
that subjective symptom evaluation is not an examination of
an individual’s character.
Id. at *1.
16-3p also outlines a two-step evaluation process in which a
decisionmaker first determines whether a claimant has a
medically determinable impairment that could reasonably be
expected to produce her alleged symptoms. Then, if a claimant
has such an impairment, the decisionmaker must evaluate the
intensity and persistence of those symptoms, and determine
the extent to which they limit the claimant’s ability
to perform work-related activities. In making that
evaluation, a decisionmaker should
examine the entire case record, including the objective
medical evidence; an individual’s statements about the
intensity, persistence, and limiting effects of symptoms;
statements and other information provided by medical sources
and other persons; and any other relevant evidence in the
individual’s case record.
SSR 16-3p, 2016 WL 1119029, at *4. However, an “ALJ
cannot reject the veracity of the claimant’s own
statements . . . based solely on the conclusion that they are
unsubstantiated by the objective medical evidence.”
Tellier v. U.S. Soc. Sec. Admin., Acting Comm’r,
No. 17-cv-184-PB, 2018 WL 3370630, at *6 (D.N.H. July
10, 2018) (citing 20 C.F.R. § 404.1529(c)(2);
Clavette v. Astrue, No. 10-cv-580-JL, 2012 WL
472757, at *9 (D.N.H. Feb. 7, 2012); Valiquette v.
Astrue, 498 F.Supp.2d 424, 433 (D. Mass. 2007); see also
SSR 16-3p, 2016 WL 1119029, at *4. Finally, when evaluating
the intensity and persistence of a claimant’s symptoms,
the ALJ should consider the so-called Avery factors:
(i) the claimant’s daily activities; (ii) the location,
duration, frequency, and intensity of the pain or symptom;
(iii) any precipitating and aggravating factors; (iv) the
effectiveness of any medication currently or previously
taken; (v) the effectiveness of non-medicinal treatment; (vi)
any other self-directed measures used to relieve pain; and
(vii) any other factors concerning functional limitations or
restrictions. 20 C.F.R. 404.1529(c)(3); Childers v.
Colvin, [No. 14-cv-270-JL, 2015 WL 4415129], [at] *5
[(D.N.H. July 17, 2015)] (citing Avery v. Sec’y of
Health & Human Servs., 797 F.2d 19, 29 (1st Cir.
Tellier, 2018 WL 3370630, at *7. However, “‘an
ALJ need not address every Avery factor’ in [her]
written decision for [her] evaluation to be supported by
substantial evidence.” Id. (quoting Ault
v. Astrue, No. 10-cv-553-JL, 2012 WL 72291, at *5
(D.N.H. Jan. 10, 2012)).
first claims that the ALJ erred by discounting her statements
about her symptoms largely because she had been convicted of
welfare fraud. Assuming that such a mistake by the ALJ would
be a reversible error, a proposition for which claimant cites
no authority, the ALJ did not do what Deoliveira claims she
did. The ALJ mentioned Deoliveira’s incarceration at
several points in her decision, but she did not do so as part
of either an examination of claimant’s character for
truthfulness or an evaluation of the statements she made
about her symptoms. Rather, the ALJ mentioned
claimant’s incarceration in discussions of her
employment record, see Tr. 25-26, and her medical history,
see Tr. 27, 29-30. But that does not run afoul of the
principle, expressed in SSR 16-3p, that SSA decisionmakers
are not to assess a claimant’s credibility or
character. See Coskery v. Berryhill, 892 F.3d 1, 6
(1st Cir. 2018) (explaining, when rejecting claimant’s
SSR 16- 3p argument, that “we read the ALJ to have
referenced Coskery’s marijuana use not for the purpose