Robitaille v SSA

                     UNITED STATES DISTRICT COURT
                      DISTRICT OF NEW HAMPSHIRE


Tina Ann Robitaille,

    v.                               Civil No. 15-cv-258-JL
                                     Opinion No. 

Carolyn Colvin,
Acting Commissioner,
Social Security Administration


                           ORDER ON APPEAL

    Tina Ann Robitaille has appealed the Social Security

Administration’s (“SSA”) denial of her application for Social

Security disability benefits.    An administrative law judge at

the SSA (“ALJ”) ruled that, despite several severe impairments,

Robitaille retains the residual functional capacity (“RFC”) to

perform jobs that exist in significant numbers in the national

economy, and thus is not disabled.    See 

(a), 416.905(a).    The Appeals Council twice granted

Robitaille’s request for review of prior decisions, see 

 §

404.967, each time vacating the ALJ’s decision and remanding for

further proceedings.    The Appeals Council denied Robitaille’s

latest request for review, with the result that the ALJ’s third

decision became the final decision on Robitaille’s application,

see id. § 404.981.     Robitaille then appealed the decision to

this court, which has jurisdiction under 

(g)

(Social Security).
     Robitaille has moved to reverse the decision, see L.R.

9.1(b), contending that the ALJ erred in her analysis of

Robitaille’s mental impairments, migraine headaches, and

credibility, at steps two and four of her analysis.      The Acting

Commissioner of the SSA has cross-moved for an order affirming

the ALJ’s decision.   See L.R. 9.1(e).   After careful

consideration, the court grants the Acting Commissioner’s motion

to affirm (and denies Robitaille’s motion to reverse) the ALJ’s

decision.


I.   Applicable legal standard

     The court limits its review of a final decision of the SSA

“to determining whether the ALJ used the proper legal standards

and found facts upon the proper quantum of evidence.”      Ward v.

Comm’r of Soc. Sec., 

 (1st Cir. 2000).     The

court will uphold the ALJ’s decision if it is supported by “such

evidence as a reasonable mind might accept as adequate to

support a conclusion.”   Richardson v. Perales, 

(1971) (quotations omitted).   Though the evidence in the record

may support multiple conclusions, the court will still uphold

the ALJ’s findings “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., 

 (1st Cir. 1991).




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II.   Background1

      The ALJ invoked the requisite five-step process in

assessing Robitaille’s request for disability benefits.     See 

.     After concluding that Robitaille had not

engaged in substantial gainful activity during the period

between the alleged onset of her disability on September 22,

2009, and the date she was last insured, December 31, 2012, the

ALJ analyzed the severity of Robitaille’s impairments.     The ALJ

concluded that Robitaille suffers from three severe physical

impairments:   degenerative disk disease, fibromyalgia, and

migraine headaches.    Admin R. at 23.   After reviewing

Robitaille’s treatment records, her own statements, and opinions

from several consultants and treating providers, the ALJ

concluded that Robitaille’s mental impairments -- adjustment

disorder and pain disorder -- caused no more than “mild

limitation[s]” on Robitaille’s activities of daily living,

social functioning, and concentration, persistence, and pace,

and that Robitaille experienced no episodes of decompensation of

extended duration, and thus were not severe.     See 20 C.F.R.

§ 1520a; id. at Pt. 404, Subpt. P, App. 1.



1 The court recounts here only those facts relevant to the
instant appeal. The parties’ more complete recitation in their
Joint Statement of Material Facts (document no. 10) is
incorporated by reference. See L.R. 9.1(d).



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    At the third step, the ALJ found that Robitaille’s severe

impairments did not meet or “medically equal” the severity of

one of the impairments listed in the Social Security

regulations.    See 

(d), 416.925, and 416.926.

She did not consider Robitaille’s alleged mental impairments at

that step.   The ALJ then concluded that Robitaille retained the

RFC to perform unskilled or semi-skilled light work.   Finally,

finding that Robitaille was unable to perform her past, relevant

work as an insurance sales agent, see 20 C.F.R.§ 404.1565, the

ALJ continued to step five, where she concluded that Robitaille

could perform jobs that exist in significant numbers in the

economy.   Therefore, the ALJ found, Robitaille was not disabled

within the meaning of the Social Security Act.


III. Analysis

    Robitaille challenges the ALJ’s analysis on four fronts.

First, Robitaille contends that the ALJ erred by failing to

properly evaluate her mental impairments when assessing her RFC.

Second, Robitaille argues that the ALJ erred by failing to

consider and account for the impact of Robitaille’s migraine

headaches, which the ALJ found to be a severe impairment, on her

ability to sustain work-related activities.   Third, Robitaille

maintains that the ALJ erred in evaluating her subjective

complaints and credibility.   Finally, Robitaille contends that




                                  4
the Acting Commissioner failed to sustain her burden at step

five of the process.     Addressing each of these in turn, the

court concludes that the ALJ did not err in crafting

Robitaille’s RFC nor in evaluating her subjective complaints and

credibility.


    A.   Mental impairments

    Robitaille challenges the ALJ’s conclusion that she does

not suffer from a severe mental impairment and that her mental

impairments did not impact her RFC.     As to the first point, if

the ALJ erred in failing to find that Robitaille suffered from

severe mental impairments at step two, such error would be

harmless, because the ALJ found that Robitaille suffered from

other severe impairments and continued to the next step.      See

McDonough v. S.S.A., 

 (“[A]n error in describing

a given impairment as non-severe is harmless so long as the ALJ

found at least one severe impairment and progressed to the next

step of the sequential evaluation.”).

    The court therefore proceeds to consider whether the ALJ

erred in crafting an RFC that does not appear to account for

Robitaille’s alleged mental impairments.     In crafting an RFC,

the ALJ “must consider limitations and restrictions imposed by

all of an individual's impairments, even those that are not

‘severe.’”     Stephenson v. Halter, 

, 4–5.   Robitaille




                                   5
contends that the ALJ erred by failing to reflect in her RFC the

conclusion that Robitaille had “at least moderate concentration,

persistence, or pace difficulties . . . .”      Plaintiff’s Mem.

(document no. 8) at 4.    In support of this argument, Robitaille

challenges the ALJ’s treatment of the medical opinion evidence

with respect to her mental impairments.

     Both Dr. Tingley, a medical expert who testified at one of

the administrative hearings, and Dr. Craig Stenslie,1 the state

agency consultant who reviewed Robitaille’s records, concluded

that Robitaille had mild restrictions of activities of daily

living and moderate difficulties in maintaining concentration,

persistence, or pace.    Admin R. at 89, 854.    Dr. Stenslie also

opined that Robitaille had mild difficulties in maintaining

social functioning.     Id. at 854.   An evaluating psychologist,

Dr. Janet Levenson, concluded that Robitaille had “mild

impulsivity issues that negatively impact accuracy in completing

tasks.”   Admin. R. at 826.   These opinions, Robitaille contends,

require the ALJ’s RFC to account, in some manner, for her

difficulties in maintaining concentration, persistence, or pace.

     The record, however, reflects that the ALJ did account for

Robitaille’s mental impairments.      The ALJ considered and

acknowledged the opinions of Drs. Tingley and Stenslie with


1 The ALJ and, perhaps as a result, both parties, referred to
Dr. Stenslie as “Dr. Stensile.”


                                  6
respect to Robitaille’s difficulties, but afforded those

opinions only moderate weight as inconsistent with treatment

notes indicating that, as a baseline, Robitaille “presented with

normal attention and concentration, which is not consistent with

a moderate limitation in this domain.”    Admin. R. at 27.   The

ALJ further noted that Dr. Stenslie relied, in part, on the

opinion of Dr. Levenson, an examining source, whose conclusion

that Robitaille “has mild impulsivity issues that negatively

impact accuracy in completing tasks” was not supported by

documentation anywhere else in the record.   Admin. R. at 27.

Finally, the ALJ cited Robitaille’s daily activities as the

basis for her conclusion that Robitaille “was able to sustain

the attention and concentration” necessary for performing those

activities, which “are not consistent with a moderate limitation

in this domain.”   Admin R. at 27.

    Next, Robitaille contends that the ALJ should have given

more weight to the opinion of Robitaille’s treating neurologist,

Dr. Vijay Thadani, and Registered Nurse Kim Keaton.    RN Keaton

opined that symptoms of Robitaille’s depression, anxiety, and

somatoform disorder would “occasionally” “interfere with

attention and concentration needed to perform even simple work

tasks.”   Admin. R. at 922.   Dr. Thadani similarly opined that

symptoms from Robitaille’s anxiety and from psychological

factors affecting her physical condition would so interfere


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“frequently.”   Id. at 993.    The ALJ considered these opinions

and afforded them little weight.       The ALJ noted several

inconsistencies between RN Keaton’s opinions and the record.

Admin R. at 30-31.   As for Dr. Thadani, the ALJ noted his

opinion that Robitaille was capable of low-stress work and that

his opinion as to the frequency of symptoms interfering with

Robitaille’s attention and concentration was inconsistent with

his observations that Robitaille’s “neurological examination was

essentially normal,” Admin R. at 31-31.

    In sum, the ALJ considered the evidence concerning

Robitaille’s mental impairments and their impact on her ability

to work when crafting her RFC.     The court accordingly cannot

conclude that the ALJ failed to weigh that evidence.


    B.    Migraine headaches

    Robitaille also challenges the ALJ’s RFC on a second

ground.   She contends the ALJ failed to account for the effects

of her migraine headaches -- despite concluding that they

constituted a severe impairment -- because the ALJ “simply fails

to explain how Ms. Robitaille could work during those one or two

days per week that she was experiencing a severe migraine.”

Plaintiff’s Mem. (document no. 8) at 9.

    Though the ALJ’s treatment of the impact of Robitaille’s

migraines on her RFC assessment is light, it is present, and it




                                   8
is supported by substantial evidence in the record.       The ALJ

evaluated several opinions, including those of Registered Nurse

Kim Keaton and Dr. Thadani, both of whom treated Robitaille.

Dr. Thadani, Robitaille’s treating neurologist, consistently

opined that it was “undeterminable” and “unknown” how often

Robitaille would miss work.   Admin. R. at 996, 1042, 1058.         As

the ALJ noted, while RN Keaton opined in 2007 that Robitaille’s

impairments were “likely to produce ‘good days’ and ‘bad days’,”

she did not indicate how often Robitaille would be absent from

work as a result.   Admin. R. at 30, 798.       In 2013, Keaton opined

that Robitaille would be absent from work, as a result of her

impairments, “[m]ore than four days per month,” without -- as

the ALJ noted -- any explanation for the discrepancies in her

opinion.   Admin. R. at 31, 925.       The evaluation of a state

agency consultant, Dr. Ray, did not address the question of

whether Robitaille would miss days due to her migraines.

    The medical evidence of record upon which the plaintiff

relies all stems from Dr. Thadani’s treatment notes in 2014 and

his opinion rendered the same year.       While those observations

support the ALJ’s conclusion designating Robitaille’s migraine

headaches a “severe impediment,” see Admin R. at 1033, 1054,

1065, as the Acting Commissioner points out, they offer no more

support for a conclusion that Robitaille would miss days at work

than the medical opinions and other evidence considered by the


                                   9
ALJ.   The ALJ also noted that, on a regular basis, Robitaille

denied having headaches.    See Admin. R. at 34, 36; see also id,

at 866, 913, 934, 938, 941.

       This leaves Robitaille’s testimony and that of her

daughter, Jessica Easton as the source of the conclusion that

Robitaille would miss work, and how often she would do so.      For

the reasons discussed infra Part III.C, the ALJ did not err when

she found Robitaille’s subjective complaints less than credible.

She also did not err in discounting the persuasive value of

Eaton’s testimony, in light of Eaton’s relationship with

Robitaille and the inconsistencies that the ALJ identified

between Eaton’s reports of Robitaille’s symptoms and those of

Robitaille and Robitaille’s treating providers.     Admin. R.

at 36.

       Accordingly, the court concludes that the ALJ did not err

in her analysis of Robitaille’s migraine headaches when crafting

the RFC.


       C.   Subjective complaints and credibility

       Robitaille next contends that the ALJ’s decision to

discount the credibility of Robitaille’s testimony concerning

the intensity, persistent, and limiting effects of symptoms

attributable to her headaches, fibromyalgia, and spinal

disorder, was not supported by substantial evidence.     The ALJ is




                                 10
required “to evaluate the credibility of a claimant’s testimony

about [his] symptoms and their limiting effect in light of all

the other evidence of record, rather than to simply accept the

testimony as true.”   Scanlon v. Astrue, 

, 15 n.4.

And that determination is entitled to deference, especially when

supported by specific evidence in the case record.   Simmons v.

Astrue, 

 (D.N.H. 2010) (citing

Frustaglia v. Sec'y of Health and Human Servs., 

 (1st Cir. 1987)).   Even though more than one conclusion

could be drawn from the evidence in the record, the ALJ’s

credibility determination will be upheld so long as “a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support [the ALJ’s]

conclusion.”   Irlanda Ortiz, 

 (quotation marks

omitted).

    As Robitaille observes, the ALJ evaluates subjective

complaints according to SSR 96-7p, Titles II and XVI: Evaluation

of Symptoms in Disability Claims: Assessing the Credibility of

an Individual’s Statements, 

 (S.S.A. 1996), which

“outlines a specific staged inquiry that consists of the

following questions, in the following order:   (1) does the

claimant have an underlying impairment that could produce the

symptoms he or she claims?; (2) if so, are the claimant’s

statements about his or her symptoms substantiated by objective


                                11
medical evidence?; and (3) if not, are the claimant’s statements

about those symptoms credible?”      Comeau v. Colvin, 

 (internal quotations omitted); see also 

.

Here, the ALJ concluded that Robitaille’s underlying impairments

crossed the threshold of the first question, in that her

“medically determinable impairments could reasonably be expected

to cause the alleged symptoms,” but concluded at the second and

third steps that Robitaille’s statements about her symptoms were

not credible.    Admin. R. at 29.    In support of the latter

conclusions, the ALJ cited test findings and clinical

observations suggesting that Robitaille put forth “variable

levels of physical effort, which suggest[ed] that [she] may be

able to do more physically than was demonstrated during

testing.”     Admin R. at 32.   The ALJ further cited to specific

instances of discrepancies between Robitaille’s reported

“subjective tolerances versus actual tolerances” observed during

testing.    Id. at 32-33.   Finally, the ALJ discounted

Robitaille’s credibility based on her own reported activities of

daily living, including caring for animals, doing laundry and

household chores, paying bills, using the computer, and doing

the majority of the housework.      Admin R. at 36.

    It is the ALJ’s prerogative to weigh this evidence and draw

conclusions from it, see Seavey v. Barnhart, 

 (1st

Cir. 2001).    Such conclusions permissibly include negative


                                    12
conclusions about the claimant’s credibility.     Mason v. Astrue,

; see also St. Pierre v. Shalala, No. 94-232,

, at *3 (D.N.H. May 25, 1995) (“When evaluating

the subjective claims of pain it is proper and, indeed, required

that the ALJ consider daily activities such as driving, walking

and household chores.    This allows the Secretary to juxtapose

the claimant’s subjective allegations of pain with the relative

intensity of his daily regimen.”) (internal citations omitted).

Accordingly, because the ALJ’s decision “contains specific,

clear reasons for [her] credibility determination that are

supported by record evidence,” Perry v. Colvin, 

, 7,

the court finds no error.


      D.   Step five

      Finally, Robitaille argues that the ALJ erred when she

posed a hypothetical question to the vocational expert that was

based upon the allegedly erroneous RFC.    Having concluded that

the ALJ’s RFC determination was proper and supported by

substantial evidence in the record, the court finds no error.


IV.   Conclusion

      For the reasons just explained, the ALJ’s conclusion that

Robitaille is not disabled is supported by substantial evidence

in the record.     Robitaille’s motion to reverse the SSA’s




                                  13
decision1 is DENIED and the Acting Commissioner’s motion to

affirm2 is GRANTED.   The clerk shall enter judgment accordingly

and close the case.


      SO ORDERED.




                               Joseph N. Laplante
                               United States District Judge


Dated:   July 20, 2016

cc:   Raymond J. Kelly, Esq.
      Terry L. Ollila, AUSA




1Document   no. 8.
2Document   no. 9.



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