UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Gloria A. Sinibaldi
v. Case No. 16-cv-181-PB
Opinion No. 2017 DNH 113
Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration
MEMORANDUM AND ORDER
Gloria Sinibaldi moves to reverse the Acting Commissioner’s
decision to deny her application for Social Security disability
insurance benefits under Title II of the Social Security Act, 42
U.S.C. § 423. The Acting Commissioner, in turn, seeks 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.
I. STANDARD OF REVIEW
The applicable standard of review in this case 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). 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 statutory requirement that the Acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.” Alexandrou v. Sullivan, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial
evidence is ‘more than [a] mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Currier v. Sec’y of HEW,
612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales,
402
U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the
[Acting Commissioner] to determine issues of credibility and to
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draw inferences from the record evidence. Indeed, the
resolution of conflicts in the evidence is for the [Acting
Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations
omitted). Moreover, 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). Finally, when determining
whether a decision of the Acting Commissioner is supported by
substantial evidence, the court must “review[] the evidence in
the record as a whole.” Irlanda Ortiz,
955 F.2d at 769 (quoting
Rodriguez v. Sec’y of HHS,
647 F.2d 218, 222 (1st Cir. 1981)).
II. BACKGROUND
The parties have submitted a Joint Statement of Material
Facts. That statement, doc. no. 13, is part of the court’s
record and will be summarized here, rather than repeated in
full.
In May 2013, Sinibaldi was seen by Dr. John Kustan for a
radiological examination. He reported the following
impressions:
3
Stable bone density in the left hip, still in the
osteopenia range.
Increased bone density in the left femoral neck, now
in the osteopenia range.
Decreased bone density in the lumbar spine, still in
the osteoporosis range.
Administrative Transcript (hereinafter “Tr.”) 263.1
After Sinibaldi applied for disability insurance benefits,
the Social Security Administration (“SSA”) sent her to Dr. John
Fothergill for a consultative examination. He diagnosed her
with headache syndromes, anxiety, and osteoporosis. He
concluded his report this way:
Patient’s headaches to me sounds like she has both
migraine headaches as well as probably some tension
type headaches. Her osteoporosis is documented by [a]
bone scan but I’m not sure how that affects her
overall. Certainly she has some anxiety. As far as
how these problems effect [sic] her ability to sit she
states that if she sits too long she’ll have some pain
in her hips. If she stands greater than an hour
she’ll have some pain in the back. . . . [S]he does
walk two miles a day. Occasionally she’ll develop
some right hip pain. . . . [S]he just doesn’t lift
much because she has very little upper body strength
and for the same reason she doesn’t carry much at all.
1 Osteopenia is “[d]ecreased calcification or density of
bone.” Stedman’s Medical Dictionary 1391 (28th ed. 2006).
Osteoporosis is “[r]eduction in the quantity of bone or atrophy
of skeletal tissue; an age-related disorder characterized by
decreased bone mass and loss of normal skeletal
microarchitecture, leading to increased susceptibility to
fractures.” Id.
4
Bending is something she can do, but after a while
getting back up becomes problematic.
Tr. 292. Based upon Dr. Fothergill’s report, an SSA medical
consultant, Dr. John MacEachran, determined that Sinibaldi did
not suffer from any severe medically determinable impairment.
Presumably for that reason, the Disability Determination
Explanation form prepared by the SSA reports no formal
assessment of Sinibaldi’s residual functional capacity (“RFC”).2
After the SSA denied Sinibaldi’s claim, she received a
hearing before an ALJ, who issued a decision that includes the
following relevant findings of fact and conclusions of law:
3. Through the date last insured, the claimant had
the severe impairments of generalized anxiety disorder
and major depressive disorder (20 CFR 404.1520(c)).
. . . .
4. Through the date last insured, the claimant did
not have an impairment or combination of impairments
that met or medically equaled the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and
404.1526).
. . . .
5. After careful consideration of the entire record,
the undersigned finds that, through the date last
insured, the claimant had the residual functional
2 “Residual functional capacity” is a term of art that means
“the most [a claimant] can still do despite [her] limitations.”
20 C.F.R. § 404.1545(a)(1).
5
capacity to perform a full range of work at all
exertional levels except that she was capable of only
work that did not include: interaction with the
general public; fast paced work, such as assembly line
belt paced work or timed work; and she was capable of
only brief and superficial interaction with co-workers
and supervisors.
. . . .
6. Through the date last insured, the claimant was
unable to perform any past relevant work (20 CFR
404.1565).
. . . .
10. Through the date last insured, considering the
claimant’s age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national economy
that the claimant could have performed (20 CFR
404.1569 and 404.1569(a)).
Tr. 22, 23, 24, 30, 31.
III. DISCUSSION
A. The Legal Framework
To be 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). The only question
in this case is whether the ALJ correctly determined that
Sinibaldi was not under a disability between August 15, 2010,
6
and June 30, 2013.
To decide whether a claimant is disabled for the purpose of
determining eligibility for disability insurance benefits, an
ALJ is required to employ a five-step process. See 20 C.F.R. §
404.1520.
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 granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing
20
C.F.R. § 416.920, which outlines the same five-step process as
the one prescribed in
20 C.F.R. § 404.1520).
The claimant bears the burden of proving that she is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). She
must do so 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 [Acting
7
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 experience.
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 Cir. 1982)).
B. Sinibaldi’s Claims
Sinibaldi claims that the ALJ committed two errors in
assessing her RFC: failing to properly consider her
osteoporosis, and failing to properly consider Dr. Fothergill’s
opinion. Neither claim is persuasive.
1. Osteoporosis
Sinibaldi summarizes her claim concerning the ALJ’s
consideration of her osteoporosis this way:
All impairments must be considered by the
adjudicator. Osteoporosis is an impairment.
Therefore, Osteoporosis should have been considered.
The ALJ did not render a finding whether osteoporosis
was an impairment, did not render a finding whether it
was severe or non-severe, and did not find any
exertional limitations in the RFC.
Cl.’s Mem. of Law, doc. no. 8-1 at 4. The court can discern no
error in the ALJ’s consideration of claimant’s osteoporosis.
Plainly, the ALJ was aware of that diagnosis; she devoted a
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full paragraph to Dr. Fothergill’s report, and stated that
claimant’s “osteoporosis was diagnosed about two years earlier
during a physical examination and worsening bone density had
been diagnosed just recently, for which she was prescribed
Fosamax.” Tr. 26. Moreover, the court cannot agree that the
ALJ failed to render a finding about the severity of claimant’s
osteoporosis. At step 2, the ALJ found that claimant’s
generalized anxiety disorder and her major depressive disorder
were severe impairments. While she did not discuss osteoporosis
in that section of her decision, the fact that she did not
include osteoporosis in the list of claimant’s severe
impairments can only be construed as a finding that osteoporosis
was not a severe impairment. And, indeed, that finding is
supported by substantial evidence, Dr. MacEachran’s
determination that “[n]o severe [medically determinable
impairment] is established.” Tr. 81.
Giving claimant the benefit of the doubt, respondent posits
that her real claim is not that the ALJ ignored her osteoporosis
but, rather, that the ALJ erred by failing to find that
condition to be a severe impairment. But, as the court has
noted, there is substantial evidence to support a finding that
claimant’s osteoporosis was not a severe impairment. Beyond
9
that, as respondent correctly notes, an erroneous determination
that an impairment is not severe is a harmless error, so long as
the ALJ has found other impairments to be severe. See, e.g.,
Reynolds v. Colvin, No. 14-cv-439-LM, 2015 WL 2452718, at *5
(D.N.H. May 22, 2015) (quoting Anderson v. Colvin, No. 14-cv-15-
LM,
2014 WL 5605124, at *5 (D.N.H. Nov. 4, 2014); citing Chabot
v. U.S. Soc. Sec. Admin., No. 13-cv-126-PB,
2014 WL 2106498, at
*9 (D.N.H. May 20, 2014)). Here, the ALJ found two severe
impairments, acknowledged her obligation to consider both severe
and non-severe impairments when determining claimant’s RFC, see
Tr. 21, and continued through all five steps of the sequential
evaluation process. Thus, even if the ALJ erred by finding
claimant’s osteoporosis not to be a severe impairment, that
error was harmless.
Finally, claimant argues that the ALJ erred by failing to
incorporate any limitations resulting from osteoporosis into her
RFC. The record, however, includes no acceptable evidence on
which the ALJ could have based any such limitation. In his
report, Dr. Fothergill stated that claimant’s “osteoporosis is
documented by [a] bone scan,” Tr. 292, but that he was “not sure
how that affects her overall,” id. Thus, Dr. Fothergill’s
report is not substantial evidence of a functional limitation
10
resulting from claimant’s osteoporosis. Moreover, in the
absence of a medical opinion positing such a limitation, the ALJ
would have erred by imposing one on her own because an “ALJ is
not qualified to assess residual functional capacity based on a
bare medical record.” Dubord v. Colvin, No. 16-cv-026-LM, 2016
WL 6462268, at *8 (D.N.H. Nov. 1, 2016) (quoting Gordils v.
Sec’y of HHS,
921 F.2d 327, 329 (1st Cir. 1990). In short, the
ALJ did not err by declining to impose limitations resulting
from claimant’s osteoporosis.
2. Dr. Fothergill’s Opinion
Petitioner summarizes her second claim of error in the
following way:
[A]ll medical opinions must be considered by the
adjudicator. Dr. Fothergill issued an opinion.
Therefore, Dr. Fothergill’s opinion and functional
limitations should have been considered. Though this
error is twofold, it is intertwined because Dr.
Fothergill is the only medical opinion that issued
functional limitations for physical problems.
Cl.’s Mem. of Law, doc. no. 8-1 at 4. That claim fails because
it is based upon a mischaracterization of Dr. Fothergill’s
report.
The applicable Social Security regulations provide that the
SSA “will always consider the medical opinions in [a claimant’s]
case record,” 20 C.F.R. § 404.1527(b), and “will evaluate every
11
medical opinion [it] receive[s],” 20 C.F.R. § 1527(c). The
regulations also explain that
[m]edical opinions are statements from physicians and
psychologists or other acceptable medical sources that
reflect judgments about the nature and severity of [a
claimant’s] impairments(s), including [the claimant’s]
symptoms, diagnosis and prognosis, what [the claimant]
can still do despite [her] impairment(s), and [the
claimant’s] physical or mental restrictions.
20 C.F.R. § 404.1527(a)(2).
In claimant’s view, Dr. Fothergill’s report includes a
favorable medical opinion that the ALJ failed to properly
consider. She is mistaken. Rather than making a statement
about physical restrictions resulting from claimant’s
osteoporosis, Dr. Fothergill expressly stated that he was “not
sure how [osteoporosis] affects her overall.” Tr. 292 (emphasis
added). That statement hardly counts as substantial evidence
that would support the inclusion of a limitation based on
osteoporosis in claimant’s RFC. To be sure, after he stated
that he did not know how osteoporosis affected claimant’s
functional capacity, Dr. Fothergill reported various statements
claimant had made to him about her functional capacity. But, it
is well established that “[s]tatements in a medical record that
merely repeat a claimant’s subjective complaints are not medical
opinions.” Tann v. Berryhill, No. 16-cv-449-JD, 2017 WL
12
1326235, at *5 n.6 (D.N.H. Apr. 10, 2017) (citing Hesson v.
Colvin, No. 2:15-cv-106-DBH,
2015 WL 7259747, (D. Me. Sept. 29,
2015);
20 C.F.R. § 416.927(a)(2)). Here, Dr. Fothergill
repeated claimant’s complaints about problems with bending but
did not himself opine that she was limited in her ability to
engage in bending. In other words, notwithstanding claimant’s
assertion to the contrary, Dr. Fothergill did not issue any
functional limitations resulting from claimant’s osteoporosis.
So, there was no medical opinion for the ALJ to consider, much
an opinion stating a functional limitation that could have been
incorporated into Sinibaldi’s RFC. For that reason, the court
discerns no error in the ALJ’s consideration of Dr. Fothergill’s
report.
IV. CONCLUSION
Because the ALJ committed neither a legal nor a factual
error in evaluating Sinibaldi’s claim, see Manso-Pizarro, 76
F.3d at 16, her motion for an order reversing the Acting
Commissioner’s decision, doc. no. 8, is denied, and the Acting
Commissioner’s motion for an order affirming her decision, doc.
no. 12, is granted. The clerk of the court shall enter judgment
13
in accordance with this order and close the case.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
June 12, 2017
cc: Laurie Smith Young, Esq.
T. David Plourde, Esq.
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