Therrien v. SSA

                    UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW HAMPSHIRE



Marie Therrien

      v.                                  Civil No. 16-cv-185-LM
                                          Opinion No. 

Nancy A. Berryhill,
Acting Commissioner
of Social Security1



                              O R D E R

      Marie Therrien seeks judicial review, pursuant to 

(g), of the decision of the Acting Commissioner of Social

Security, denying her application for disability insurance

benefits under Title II and supplemental security income under

Title XVI of the Social Security Act, 

 and

§ 1382.    In support, Therrien contends that the Administrative

Law Judge (“ALJ”) erred at Step Two of the sequential analysis,

failed to properly weigh the medical opinion evidence, and

improperly assessed her subjective complaints of pain.    The

Acting Commissioner moves to affirm.




  1 Nancy A. Berryhill became Acting Commissioner of the Social
Security Administration on January 23, 2017, replacing Carolyn
W. Colvin. See Fed. R. Civ. P. 25(d).
                        Standard of Review

    In reviewing the 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,

 (1st Cir. 1999); accord Seavey v. Barnhart, 

 (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, 

(1st Cir. 2016).

    “Substantial evidence is more than a mere scintilla.      It

means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”      Castillo Condo. Ass’n v.

U.S. Dep’t of Housing & Urban Dev., 

 (1st Cir.

2016) (internal quotation marks omitted).      The court will uphold

the ALJ’s findings, even if the record could support another

conclusion, as long as “a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate

to support his conclusion.”    Irlinda Ortiz v. Sec’y of Health &

Human Servs., 

 (1st Cir. 1991).


                              Background

    Marie Therrien filed for social security benefits in May

2013, when she was 33 years old.      She has a high school


                                  2
education and previously worked in a fast food restaurant and as

a parking lot cashier.   She lives with her children, as a single

parent.

    Her medical records begin in December 2012 when she was

admitted for in-patient mental health treatment because of

depression and suicidal thoughts.       On admission, Dr. David M.

Ledner recorded that Therrien’s physical examination was

“essentially unremarkable.”   Therrien received medication and

group therapy.   She was discharged a week later with a diagnosis

of “major depressive disorder, recurrent, severe.”

    In February 2013, Therrien’s carpal tunnel syndrome was

treated with a decompression procedure.       Therrien had a normal

mood and affect during an appointment with Peter Barr,

Physician’s Assistant, in March 2013.

    Therrien saw her treating physician, Dr. David Kehas, in

May 2013, because of right neck and shoulder pain that Therrien

said had been intermittent over the past few years.       On

examination, Dr. Kehas found that Therrien was alert,

cooperative, and in no distress.       He found her cranial nerves

were intact, decreased sensation to touch and temperature in her

right arm and fingers, her right arm reflexes were brisk, and

her strength was four out of five due to pain.




                                   3
    A few days later, Dr. Kehas filled out a “Physical

Capacities” section of a document titled “Physician/Clinician

Statement of Capabilities.”    He noted Therrien’s diagnoses for

cervical radiculopathy, plantar fasciitis, carpal tunnel

syndrome, and low back pain.   In Dr. Kehas’s opinion, Therrien

could do work at the sedentary and light physical levels, with

some limitations on postural activities and a need to avoid

heights and hard floors.   He found that she could occasionally

do manipulative activities and pushing and pulling.    Dr. Kehas

also found that Therrien could do work activities for only 20 to

25 hours per week.

    Therrien had her annual examination with Dr. Kehas on May

14, 2013.   She reported back pain without help from medication.

Dr. Kehas noted that Therrien had a body mass index (“BMI”) of

53.75, which correlates to obesity.    On examination, Dr. Kehas

found that Therrien was in no acute distress and her gait,

sensation, reflexes, cranial nerves, and motor strength were all

normal.   Dr. Kehas told Therrien to come back in a year.

    The same day, Leslie Clukay, A.P.R.N., completed the

“Psychological Capacities” part of the “Physician/Clinician

Statement of Capabilities.”    Clukay stated that Therrien’s

psychological condition began in August 2008.    Despite her

condition, Clukay indicated that Therrien had no deficits and



                                  4
was not limited in her ability to perform a list of activities,

including socially acceptable behavior, remembering work

procedures, and driving.    In some other areas, Clukay responded

“unknown.”    She wrote that other medical issues had exacerbated

Therrien’s psychiatric symptoms.       Clukay then stated that

Therrien was unable to work.

    Therrien had an MRI of her cervical spine, also done in May

2013.     Because she moved during the study, the results were

limited.     The reviewing doctor reported no significant disc

desiccation or disc height loss, a disc protrusion, and mild

bulging and narrowing at C6-C7.        Therrien had an MRI of her

right shoulder in June 2013.     The reviewing doctor reported mild

to moderate tendinosis and narrowing.

    Dr. Hugh Fairley, a state agency physician, reviewed

Therrien’s records on July 19, 2013.       He found that Therrien had

severe impairments due to obesity; a skin disease, hidradenitis

suppurativa (“HS”); disorders of muscle, ligament, and fascia;

and carpel tunnel syndrome.    Despite those impairments, Dr.

Fairley found that Therrien could frequently lift up to 10

pounds, could stand or walk for two hours in an eight-hour work

day, could sit for six hours, had an unlimited ability to push

or pull up to 10 pounds, and could occasionally climb ramps or

stairs.    She could not do some postural activities but could



                                   5
occasionally do others.    Her ability to do manipulative

activities was not limited.

    Therrien had a consultative mental health evaluation on

August 14, 2013, with Juliana Read, Ph.D.    Dr. Read found that

Therrien could communicate effectively and interact

appropriately with others, could understand and remember all

instructions and procedures, and could maintain attention and

concentration.    Dr. Read also found that Therrien could make

simple decisions and tolerate stress in the work setting.

    Michael Schneider, Psy.D., a state agency psychologist,

reviewed Therrien’s records on August 15, 2013.    Dr. Schneider

found that Therrien had a severe anxiety disorder and a

nonsevere affective disorder.    Because of those issues, Therrien

had mild restrictions in her daily activities and maintaining

concentration, persistence, or pace, and moderate difficulties

in maintaining social functioning.    In assessing Therrien’s

specific functions, Dr. Schneider found no limitations or no

significant limitations in most functions and moderate

limitation in her ability to interact appropriately with the

general public.   Dr. Schneider’s opinion was that Therrien would

be able to work without problems from psychological symptoms

except that she should not work directly with the public.




                                  6
    Because of complaints of back, knee, and hip pain, Dr.

Brian Klagges ordered an MRI for Therrien in December 2013.          The

results were completely normal.    Dr. Klagges wrote that he had

no explanation for Therrien’s complaints of pain.

    Therrien had gastric bypass surgery on December 23, 2013.

In February 2014, Therrien saw Dr. Klagges because of

debilitating back pain and pain radiating to her right knee.

Dr. Klagges noted Therrien’s described pain and that the pain

had not been controlled by other treatment.       Lumbar medial

branch blocks administered in April 2014 did provide relief from

the pain.

    In May 2014, Therrien saw Dr. Lisa Doyle because of a rash

on her abdomen that had lasted for three days.       Dr. Doyle noted

that Therrien’s BMI was 34.78.     Dr. Doyle also noted an

assessment of HS, along with other conditions, but diagnosed the

rash as eczema to be treated with hydrocortisone cream.

    Therrien saw Dr. Kehas again in June 2014 because of back,

neck, and arm pain.   On examination, Therrien was in no

distress, had a full range of motion, had some back tenderness,

and had other normal results.     Dr. Kehas found that she was

improved overall and advised her to follow up with psychiatry.

    Dr. Kehas completed a “Residual Functional Capacity

Questionnaire” on July 10, 2014.       He stated that Therrien had



                                   7
been diagnosed with back pain and bipolar disorder and that her

prognosis was fair.   He said that Therrien had back pain with

radiation and severe depression, which would frequently

interfere with the attention and concentration necessary for

work.   He also said that her medications caused drowsiness.

    Although Dr. Kehas found that Therrien could walk half a

city block without rest or pain, he also found that she could

stand or walk for only five minutes at a time.   He found that

she would need breaks to lie down and rest, that she could sit

for 15 minutes at a time for up to four hours in a day, and that

she would need a job that allowed her to change positions.       She

could lift up to 10 pounds and had no limitations in

manipulation activities.   Dr. Kehas said that Therrien was not

able to work an eight-hour day for five days per week.      In

October 2014, Dr. Kehas provided his opinion that Therrien met

the listing for HS in 20 C.F.R. Part 404, Subpart P, App. 1.

    Therrien sought treatment for headaches in July 2014.        On

examination, John R. Pettinato, D.O., found all normal results.

He discussed a healthy lifestyle to avoid headaches.

    On July 21, 2014, Therrien saw Clukay for follow up on

depression, anxiety, and personality disorder.   Therrien

reported she felt pretty good because she was taking her

medications.   On examination, Clukay found all normal results.



                                 8
    A hearing on Therrien’s social security applications was

held before an ALJ on October 14, 2014.      Therrien testified that

she was unable to work because of pain and mood swings.      She

also said that she relied on her children and other family

members to help with household activities, including care for

her children.   A vocational expert also testified.

    The ALJ issued a decision on November 18, 2014, concluding

that Therrien was not disabled.       The ALJ found that despite

severe mental and physical impairments, Therrien retained the

ability to do sedentary work with some restrictions and that

although she could not return to her prior work there were other

jobs that she could do.   The Appeals Council denied Therrien’s

request for review.


                            Discussion

    Therrien contends that the ALJ erred in failing to find

additional severe impairments at Step Two, in assigning limited

weight to Dr. Kehas’s opinions and Clukay’s opinions, and in

failing to consider the effect of her subjective complaints of

pain on her ability to work.   The Acting Commissioner moves to

affirm.

    In determining whether a claimant is disabled, the ALJ

follows a five-step sequential analysis.       

;




                                  9
§ 416.920.2      The claimant bears the burden through the first four

steps of proving that her impairments preclude her from working.3

Freeman v. Barnhart, 

 (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, 

 (1st Cir. 1991).


I.       Step Two Finding

         The ALJ found that Therrien had the following severe

impairments: degenerative disc disease of the cervical spine,

right shoulder tendonitis, depression, and anxiety.      Therrien

contends that the ALJ erred in failing to also find severe

impairments of obesity, HS, and carpal tunnel syndrome.4        The

Acting Commissioner argues that the ALJ made the correct finding




    Because the pertinent regulations governing disability
     2

insurance benefits at 20 C.F.R. Part 404 are the same as the
pertinent regulations governing supplemental security income at
20 C.F.R. Part 416, the court will cite only Part 404
regulations. See Reagan v. Sec’y of Health & Human Servs., 

 (1st Cir. 1989).

    The first four steps are (1) determining whether the
     3

claimant is engaged in substantial gainful activity; (2)
determining whether she has a severe impairment; (3) determining
whether the impairment meets or equals a listed impairment; and
(4) assessing the claimant’s residual functional capacity and
her ability to do past relevant work. 

(a).

    Although Therrien mentions carpal tunnel syndrome, she does
     4

not provide any argument to show why carpal tunnel syndrome was
a severe impairment.

                                   10
at Step Two and that reversal is not necessary, in any case,

because he proceeded through the remaining steps of the

sequential analysis and considered the effects of all of her

impairments.

    At Step Two, the ALJ must determine whether the claimant

has a medically determinable impairment or a combination of

impairments that is severe.     § 404.1520(a)(4)(ii).   The severity

requirement is a threshold test “designed to do no more than

screen out groundless claims.”    McDonald v. Sec’y of Health &

Human Servs., 

 (1st Cir. 1986).

Nevertheless, to be severe within the meaning of the

regulations, the impairment or combination of impairments must

significantly limit the claimant’s “physical or mental ability

to do basic work activities.”    § 404.1520(c).    Errors at Step

Two are harmless as long as the ALJ found at least one severe

impairment, continued on with the sequential analysis, and

considered the effect of all impairments on the claimant’s

functional capacity.   See Fortin v. Colvin, No. 3:16-cv-30019-

KAR, 

, at *10 (D. Mass. Mar. 31, 2017).

    Therrien argues that obesity can increase the severity of

other impairments, citing Titles II and XVI:      Evaluation of

Obesity, SSR 02-1p, 

 (Sept. 12, 2002).      She

contends that her obesity “likely exacerbated” her neck and back



                                  11
pain and sleep disturbance, but she cites no evidence in the

record that shows such exacerbations did occur.    In support of a

finding that HS was a severe impairment, Therrien cites a

medical treatment note and a diagnosis that was not included in

the parties’ joint statement of material facts.    See Lawton v.

Astrue, No. 11-cv-189-JD, 

, at *9 (D.N.H. July

24, 2012) (noting that an issue based on records not included in

the joint statement may have been waived).   Therrien also cites

the opinion of the state agency physician that obesity and HS

were severe impairments

     The ALJ explained in the decision why he did not find

obesity, HS, and carpal tunnel syndrome to be severe

impairments.   With respect to obesity, the ALJ noted that

Therrien’s gastric bypass surgery in December 2013 had caused

her to lose a significant amount of weight so that her weight,

post surgery, caused no more than a minimal impact on her

functional capacity.   Similarly, Therrien had a repair procedure

for carpal tunnel syndrome and the records showed no limitations

or need for treatment following the procedure.    The ALJ also

found that HS was not severe because of the lack of evidence of

either treatment or symptoms.   Substantial evidence in the

record supports the ALJ’s findings that obesity, HS, and carpal

tunnel syndrome were not severe impairments.



                                12
      Even if the ALJ’s findings at Step Two were wrong, however,

any error would be harmless because the ALJ did find severe

impairments.   Based on those impairments, the ALJ continued the

sequential analysis and considered the effects of all of

Therrien’s impairments in the process.   Therefore, no reversible

error occurred.


II.   Opinion Evidence

      Therrien contends that the ALJ erred in assigning little

weight to the opinions of Dr. Kehas and Clukay.   She argues that

Dr. Kehas’s opinions should have been given controlling weight

because he is her treating physician, that the ALJ failed to

evaluate the opinions as required by § 404.1527, and that

evidence in the record supported Dr. Kehas’s opinions.     Although

she concedes that Clukay is not an acceptable medical source,

Therrien argues that the ALJ should have considered Clukay’s

opinions because of her treatment relationship with Therrien.

The Acting Commissioner contends that the ALJ properly

discounted both opinions.

      An ALJ is required to consider the medical opinions along

with all other relevant evidence in a claimant’s record.    

(b).    “Medical opinions are statements from

acceptable medical sources that reflect judgments about the

nature and severity of [the claimant’s] impairment(s), including


                                 13
[the claimant’s] symptoms, diagnosis and prognosis, what [the

claimant] can still do despite impairment(s), and [the

claimant’s] physical or mental restrictions.”    § 404.1527(a)(1).

Medical opinions are evaluated based on the nature of the

medical source’s relationship with the claimant, the consistency

of the opinion with the other record evidence, the medical

source’s specialty, and other factors that support or detract

from the opinion.    § 404.1527(c).


    A.   Dr. Kehas

    “[U]nder the treating source rule, controlling weight will

be given to a treating physician’s opinion on the nature and

severity of a claimant’s impairments if the opinion is well-

supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other

substantial evidence in the record.”    Arrington v. Colvin, ---

F. Supp. 3d ---, 

 (D. Mass. Nov. 3, 2016)

(internal quotation marks omitted).    On the other hand, the ALJ

may give little weight to a treating source’s opinion if that

opinion “is inconsistent with other substantial evidence in the

record, including treatment notes and evaluations by examining

and non-examining physicians.”    Glynn v. Colvin, No, 16-CV-

10145-LTS, 

, at *2 (D. Mass. Feb. 6, 2017).    While

the regulations require an ALJ to consider the factors in


                                 14
§ 404.1527(c) and give good reasons for the weight attributed to

a treating source’s opinion, there is no requirement that the

ALJ explicitly examine each listed factor in the decision.     See

McNelley v. Colvin, No. 15-1871, 

, at *2 (1st

Cir. Apr. 28, 2016); accord Genereux v. Berryhill, No. 15-13227-

GAO, 

, at *2 (D. Mass. Mar. 31, 2017).

    The ALJ reported in the decision Dr. Kehas’s responses in

the May 2013 physician statement of capabilities, and the July

2014 residual functional capacity questionnaire.   The ALJ noted

that Dr. Kehas indicated greater limitations in the 2014

questionnaire than in the 2013 statement but provided no

explanation for the change and did not indicate that Therrien

had any worsening symptoms to account for the change.    The ALJ

also noted that Dr. Kehas did not explain his limitation that

Therrien could not do full-time work.   The ALJ stated that the

inconsistency between the two opinions without explanation made

the opinions less persuasive.

    The ALJ also found that Dr. Kehas’s opinions were not

supported by or consistent with the record evidence.    In

particular, the ALJ noted that Therrien’s examination records

did not show the abnormalities or deficits that would support

the limitations in Dr. Kehas’s opinions and that Dr. Kehas did

not explain why he found those limitations and restrictions.



                                15
The ALJ then reviewed Therrien’s medical records and treatment

notes in detail and concluded that Dr. Kehas’s opinions were not

consistent with that record evidence.    As a result, the ALJ gave

Dr. Kehas’s opinions little weight.

    Therrien faults the ALJ for failing “to apply the

404.1527(c) checklist when discounting the opinions of Dr.

Kehas.”     As noted above, however, the ALJ was not required to

explicitly address each factor in § 404.1527(c).

    Therrien argues that Dr. Kehas did not need to provide an

explanation for the changes in his opinions between 2013 and

2014 because the record shows that her condition worsened.     She

asserts that the ALJ bore the burden to find an explanation.

Therrien is mistaken.    As demonstrated by the ALJ’s review of

her medical records, her condition did not worsen between 2013

and 2014.    In addition, the ALJ is not obligated to contact Dr.

Kehas to request an explanation when the record does not support

Dr. Kehas’s opinions.

    Based on some treatment notes that she believes support her

claim of disabling symptoms, Therrien contends that the ALJ’s

analysis of Dr. Kehas’s opinion was faulty.    She does not

explain how these treatment notes support Dr. Kehas’s opinions.

In addition, as the ALJ’s review of the record demonstrates,

substantial evidence supports his findings.     See Irlinda Ortiz,



                                  16


 (1st Cir. 1991) (holding that ALJ’s finding must

be affirmed if supported by substantial evidence even if other

evidence exists to the contrary).

    Therefore, the ALJ did not err in his assessment of Dr.

Kehas’s opinions.


    B.   Leslie Clukay, A.P.R.N.

    The ALJ assigned little weight to Clukay’s opinion, which

was provided in a completed psychological capabilities

questionnaire, both because she is not an acceptable medical

source under the regulations and her opinion was internally

inconsistent and inconsistent with other record evidence.

Therrien argues that although she is not an acceptable medical

source, the ALJ was required to consider Clukay’s opinion and

was required to explain his consideration of the factors

provided in § 404.1527(d).   In support, Therrien cites Titles II

and XVI: Considering Opinions and Other Evidence from Sources

Who Are Not “Acceptable Medical Sources” in Disability Claims;

Considering Decision on Disability by Other Governmental and

Nongovernmental Agencies, SSR 06-3p, 

 (Aug. 9,

2006).

    Contrary to Therrien’s charge of error, the ALJ did

consider Clukay’s opinion.   The ALJ assigned the opinion little

weight because of its internal inconsistencies in describing


                                17
Therrien’s limitations and because it was inconsistent with

other evidence of psychiatric treatment in the record, which the

ALJ reviewed in detail.     As such, the ALJ properly assessed

Clukay’s opinion and cited record evidence that supports that

assessment.


III.    Subjective Complaints of Pain—Credibility

       Therrien contends that the ALJ failed to consider the

effect of her subjective complaints of pain on her ability to

work.   She argues that there is no indication in the decision

that the ALJ followed the requirements of Policy Interpretation

Ruling Titles II and XVI:    Evaluation of Symptoms in Disability

Claims:    Assessing the Credibility of an Individual’s

Statements, SSR 96-7p, 

 (July 2, 1996);5 §

404.1529, and Avery v. Sec’y of Health & Human Servs., 

 (1st Cir. 1986).     Therrien is mistaken.

       In assessing the intensity, persistence, and limiting

effects of Therrien’s impairments, the ALJ cited SSR 96-7p and

listed the factors to be considered under § 416.929, the Title

XVI rule that is the analog to § 404.1529.     The ALJ considered

Therrien’s statements about her activities, symptoms, and

limitations.    The ALJ found specific inconsistencies in


  5 SSR 96-7p has been superseded by SSR 16-3p, which was issued
on March 16, 2016, after the ALJ issued the decision.

                                  18
Therrien’s descriptions of her abilities and functioning, along

with inconsistencies between Therrien’s allegations of

limitation and her treatment records, that undermined the

persuasiveness of her subjective complaints.    As such, the ALJ

properly considered the factors necessary to assess Therrien’s

credibility with respect to her subjective complaints of pain.

See Misterka v. Colvin, No. 15-cv-10203-MGM, 

, at

*6 (D. Mass. Sept. 22, 2016) (noting that ALJ need not expressly

analyze each factor).

                              Conclusion

      For the foregoing reasons, the claimant’s motion to reverse

(document no. 8) is denied.    The Acting Commissioner’s motion to

affirm (document no. 12) is granted.

      The clerk of court shall enter judgment accordingly and

close the case.

      SO ORDERED.


                                __________________________
                                Landya McCafferty
                                United States District Judge


April 21, 2017

cc:   Howard D. Olinsky, Esq.
      Stephan Patrick Parks, Esq.
      T. David Plourde, Esq.




                                 19