Bunnell v. US Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Erika Bunnell
v. Civil No. 18-cv-569-LM
Opinion No. 2019 DNH 146
Andrew Saul, Commissioner
of Social Sec. Admin.
O R D E R
Erika Bunnell seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Commissioner of the Social
Security Administration, denying her application for disability
insurance benefits. Bunnell moves to reverse the Commissioner’s
decision, and the Commissioner moves to affirm. For the reasons
discussed below, the decision of the Commissioner is affirmed.
STANDARD OF REVIEW
In reviewing the final decision of the Commissioner in a
social security case, the court “is limited to determining
whether the [Administrative Law Judge] deployed the proper legal
standards and found facts upon the proper quantum of evidence.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord Seavey
v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). The court defers to
the ALJ’s factual findings as long as they are supported by
substantial evidence. 42 U.S.C. § 405(g); see also Fischer v.
Colvin, 831 F.3d 31, 34 (1st Cir. 2016). “Substantial evidence
is more than a scintilla. It means such relevant evidence as a
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reasonable mind might accept as adequate to support a
conclusion.” Astralis Condo. Ass’n v. Sec’y Dep’t of Housing &
Urban Dev., 620 F.3d 62, 66 (1st Cir. 2010).1
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis. 20 C.F.R.
§ 404.1520(a)(4). The claimant “has the burden of production
and proof at the first four steps of the process.” Freeman v.
Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). The first three
steps are (1) determining whether the claimant is engaged in
substantial gainful activity; (2) determining whether she has a
severe impairment; and (3) determining whether the impairment
meets or equals a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(i)-(iii).
At the fourth step of the sequential analysis, the ALJ
assesses the claimant’s residual functional capacity (“RFC”),
which is a determination of the most a person can do in a work
setting despite her limitations caused by impairments, id.
§ 404.1545(a)(1), and her past relevant work, id.
§ 404.1520(a)(4)(iv). If the claimant can perform her past
relevant work, the ALJ will find that the claimant is not
1 In arguing that the ALJ’s decision must be reversed,
Bunnell frequently contends that the ALJ’s decision was not
“fair.” The standard of review on appeal, however, is whether
the ALJ’s decision is supported by substantial evidence.
Fairness is not an element of the analysis.
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disabled. See id. § 404.1520(a)(4)(iv). If the claimant cannot
perform her past relevant work, the ALJ proceeds to Step Five,
where the ALJ has the burden of showing that jobs exist in the
economy which the claimant can do in light of the RFC
assessment. See id. § 404.1520(a)(4)(v).
BACKGROUND
A detailed factual background can be found in the parties’
statements of material facts (doc. nos. 8-2, 9-2). The court
provides a brief summary of the case here.
On November 24, 2015, Bunnell filed an application for
disability insurance benefits. She alleged a disability onset
date on that same date. Bunnell alleged a disability due to
diabetes, gastroparesis, kidney disease, depression, anxiety,
and post-traumatic stress disorder (“PTSD”).
After Bunnell’s claim was denied, she requested a hearing
in front of an ALJ. On July 21, 2017, the ALJ held a hearing,
during which Bunnell, who was represented by an attorney,
appeared and testified. At the start of the hearing, Bunnell
tendered additional evidence related to her mental status, blood
sugar instability, asthma, and a new neurological issue. The
evidence was described by counsel as “just updates to the
records that were already in the file.” Admin. Rec. (“AR”) at
133. Under 20 C.F.R. § 404.935, the ALJ refused to admit the
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evidence into the record because it was not tendered at least
five days before the hearing.
On September 12, 2017, the ALJ issued an unfavorable
decision. He found that Bunnell had the following severe
impairments: diabetes, gastroparesis, kidney disease,
depression, anxiety, PTSD, and obesity. The ALJ also found that
Bunnell’s compulsive disorder and trichotillomania were not
medically determinable severe impairments and that her
retinopathy was a non-severe impairment. The ALJ found that
Bunnell had the RFC to perform light work, as defined in 20
C.F.R. § 404.1567(b), except that she was limited to occasional
work involving hazards (such as unprotected heights and moving
machinery) and simple and routine tasks. Bunnell was also
limited to simple work-related decisions.
In assessing Bunnell’s RFC, the ALJ gave strong weight to
the opinion of Dr. Marie Turner, a state-agency physician who
reviewed Bunnell’s medical records on April 11, 2016. The ALJ
also gave strong weight to the opinion of Dr. Laura Landerman, a
state-agency psychologist, who reviewed Bunnell’s medical
records. The ALJ gave partial weight to the opinion of Dr.
William Dinan, a psychologist who performed a consultative
examination on Bunnell.
The ALJ gave little weight to the opinions of treating
physicians Dr. Robert Silver and Dr. Robert Stidwell. In their
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opinions, which substantially mirrored each other, the
physicians stated that Bunnell needed to avoid exposure to
odors, dusts, and gases, and they opined that Bunnell would be
absent four days per month and off-task ten (Dr. Silver) to
twenty-five (Dr. Stidwell) percent of the time at work.
A vocational expert testified, in response to hypotheticals
posed by the ALJ, that a person with Bunnell’s RFC could perform
jobs that exist in significant numbers in the national economy,
including garment folder, sorter (agricultural produce), and
cleaner/polisher.2 Based on the vocational expert’s testimony,
the ALJ found at Step Five that Bunnell was not disabled. On
April 23, 2018, the Appeals Council denied Bunnell’s request for
review, making the ALJ’s decision the Acting Commissioner’s
final decision. This action followed.
DISCUSSION
Bunnell raises several claims of error on appeal. She
argues that the ALJ erred by failing to admit the evidence
presented to him at the hearing; by rejecting the opinions of
Bunnell’s treating physicians and Dr. Dinan and consequently
failing to address whether Bunnell could sustain work given her
2 The vocational expert testified that Bunnell’s service
animal would preclude the sorter job, but not the garment folder
or cleaner/polisher jobs. As discussed further infra, the ALJ
did not address whether Bunnell’s service dog constituted a
limitation in his opinion.
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limitations; and by failing to include limitations reflecting
her support dog, mental status, and asthma.
I. Evidence
Bunnell argues that the ALJ erred by refusing to admit the
evidence that she presented for the first time at the hearing.
Bunnell contends that this evidence “filled the gap in the
record for basically over a year’s time” and established a
neurological disorder that would have rendered her disabled.
Doc. no. 8-1 at 12.
Under the “five-day rule,” an ALJ is permitted to refuse
evidence that is submitted fewer than five days before the
hearing, unless certain circumstances apply. 20 C.F.R.
§ 404.935(a); Patrick S. v. Saul, No. 1:18-cv-289-DBH, 2019 WL
3814283, at *1-*2 (D. Me. Aug. 19, 2019). Those circumstances
include misleading actions by the Social Security
Administration; a claimant’s limitation that prevented her from
submitting the evidence earlier; unavoidable circumstances such
as serious illness, death or serious illnesses in the claimant’s
immediate family; destruction or damage from fire or other
accidents; or the claimant “actively and diligently sought
evidence from a source” and the evidence was not received within
five days before the hearing. 20 C.F.R. § 404.935(b).
Bunnell argues that the failure to submit the evidence
before the hearing was based on her counsel’s mistaken belief
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that the evidence had already been submitted. Bunnell does not
contend that any of the circumstances listed in § 404.935(b)
apply. Instead, Bunnell argues that the ALJ had an obligation
to fully develop the record under 42 U.S.C. § 405(b)(1) and
other authorities, asserting that the evidence that the ALJ
refused to admit is necessary to develop a full record.
Section 404.935(b), however, does not contain an exception
for situations in which the excluded evidence is important or
even critical to developing the entire record. See Newcomb v.
Astrue, No. 2:11–cv–02–GZS, 2012 WL 47961, at *10 & n.7 (D. Me.
Jan. 6, 2012) (addressing predecessor rule to § 404.935,
discussing the reasoning behind the rule, and concluding that
the ALJ’s duty to fully develop the record does not “trump the
concern” that led to the rule permitting the ALJ’s rejection of
late-tendered evidence). While the exceptions are not all-
inclusive, none of the listed exceptions relates to the
importance of the evidence within the claimant’s case. See §
404.935(b). Rather, they relate to whether the reason for the
exclusion was unavoidable due to circumstances outside the
claimant’s control. See id.
In a final effort to save her argument, Bunnell contends
that she should not be punished for her counsel’s mistake.
Again, however, § 404.935(b) does not contain an exception for
failures to present evidence when the claimant is represented by
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counsel. Remand on the ground that the record is not fully
developed or on the ground that the ALJ erred by declining to
consider the evidence under § 404.935(b) is not warranted.
II. RFC Analysis
Broadly, Bunnell argues that the ALJ erred in finding that
she had an RFC that allowed her to perform work that exists in
significant numbers at the national level. She contends that
the ALJ’s incorrect RFC assessment stems from (1) assigning
little weight to the opinions of Drs. Stidwell and Silver; (2)
assigning partial weight to the opinion of Dr. Dinan; and (3)
failing to consider evidence that supported a finding that she
was unable to maintain a regular work schedule, work with her
service dog, work with her asthma, and work with her mental
limitations. The court addresses each of these arguments in
turn.
A. Weight of Opinions
“An ALJ is required to consider opinions along with all
other relevant evidence in a claimant’s record.” Ledoux v.
Acting Comm’r, Social Sec. Admin., No. 17-cv-707-JD, 2018 WL
2932732, at *4 (D.N.H. June 12, 2018). “Medical opinions are
statements from acceptable medical sources that reflect
judgments about the nature and severity of [the claimant’s]
impairment(s), including [the claimant’s] symptoms, diagnosis
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and prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant’s] physical or mental
restrictions.” § 404.1527(a)(1).
The ALJ analyzes the opinions of state agency consultants,
treating sources, and examining sources under the same rubric.
See id.; § 404.1527(c). The ALJ must consider “the examining
relationship, treatment relationship (including length of the
treatment relationship, frequency of examination, and nature and
extent of the treatment relationship), supportability of the
opinion by evidence in the record, consistency with the medical
opinions of other physicians,” along with the doctor’s expertise
in the area and any other relevant factors. Johnson v.
Berryhill, No. 16-cv-375-PB, 2017 WL 4564727, at *5 (D.N.H. Oct.
12, 2017).
1. Drs. Stidwell and Silver
Bunnell contends that the ALJ failed to properly evaluate
the opinions of two treating physicians, Dr. Silver (treating
endocrinologist) and Dr. Stidwell (treating primary care
physician). Bunnell contends that the ALJ erred by giving these
opinions little weight. Bunnell accuses the ALJ of rejecting
their opinion evidence “based upon his own medical study.” Doc.
no. 8-1 at 4-5.
A treating source’s medical opinion is entitled to
controlling weight when it is “well-supported by medically
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acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case record.” 20 C.F.R. § 404.1527(c)(2). The ALJ must give
“good reasons” for the weight he gives a treating source’s
medical opinion. Id. § 404.1527(c)(2). “Those reasons must
offer a rationale that could be accepted by a reasonable mind.”
Bean v. Berryhill, 2019 WL 277592, at *3 (D.N.H. Jan. 22, 2019).
Both Drs. Stidwell and Silver opined that Bunnell would be
unable to work on a regular basis, opinions which are at odds
with the ALJ’s RFC findings. An ALJ, however, is permitted to
discount the opinion of a treating physician if the physician
fails to provide a reasoned analysis for his opinion, by, for
example, offering only a “checklist” of restrictions. See
McGrath v. Astrue, No. 10-cv-455-JL, 2012 WL 976026, at *5 n.13
(D.N.H. Mar. 22, 2012) (“When an opinion is given in a cursory
fashion, the ALJ can properly give it less weight.”). Here, the
ALJ rejected the opinions on the basis that they were in
“checklist” format, lacked analysis, and were not supported by
the other evidence in the record. The ALJ did not err in giving
the opinions little weight on these grounds. See id. at *5.
The ALJ pointed to inconsistencies between Drs. Stidwell’s
and Silver’s opinions and the medical record, specifically
regarding the extent of the limitations based on Bunnell’s
fatigue due to diabetes and her exposure to dust, odors, and
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perfumes. Bunnell contests the ALJ’s statement that Drs.
Stidwell’s and Silver’s opinions were inconsistent with medical
evidence, arguing that the medical notes which the ALJ found to
contradict the physicians’ opinions predated the alleged onset
date.
The ALJ, however, pointed to the medical opinions that
predated the alleged onset date because they were consistent
with those within the alleged disability period. In other
words, the medical reports consistently showed that Bunnell’s
diabetes symptoms were managed to a greater degree than
indicated by Drs. Silver and Stidwell in their opinions of
Bunnell’s functional capacity. Bunnell has not demonstrated
that the ALJ erred by assigning the opinions of Drs. Stidwell
and Silver little weight.
2. Dr. Dinan
Bunnell also challenges the weight the ALJ gave to Dr.
Dinan’s opinion, specifically Dr. Dinan’s opinion that Bunnell
would not be able to maintain a regular job schedule and
attendance. Although the ALJ gave strong weight to the other
portions of Dr. Dinan’s opinion, the ALJ found that Dr. Dinan
failed to provide any explanation or support for this
conclusion.
In contesting the ALJ’s conclusion on this point, Bunnell
looks to Dr. Dinan’s mental status assessment, in which he noted
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that Bunnell has a highly variable “task initiation,” has a
highly variable working pace, is easily distracted by unexpected
schedule changes, and has increased levels of anxiety when she
becomes over-stressed. As the Commissioner observes, however,
these findings do not establish that Bunnell would be unable to
maintain a regular work schedule. Rather, they suggest
limitations on her mental functioning at work, which the ALJ
addressed in detail in his opinion. Furthermore, Dr. Landerman,
whose opinion was given strong weight, disagreed with Dr.
Dinan’s assessment as to Bunnell’s ability to maintain a work
schedule.
The ALJ was entitled to weigh the two opinions and decide
which was more persuasive based on the relevant factors.
Therefore, the ALJ did not err by discounting Dr. Dinan’s
opinion that Bunnell would be unable to maintain a regular work
schedule.
B. RFC
Citing the opinions of Drs. Silver and Stidwell, as well as
various other evidence from the record, Bunnell contends that
the ALJ should have found that she was unable to work because
she could not maintain a consistent work schedule. However, as
noted, the ALJ properly discounted the opinions of Drs. Silver
and Stidwell, and other evidence examined by the ALJ supports
the opposite conclusion. Because the ALJ is entitled to
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deference in weighing conflicting evidence, there is no error in
the ALJ’s implicit finding that Bunnell could maintain a
consistent work schedule.
Bunnell argues that the ALJ erred by failing to include an
accommodation for her support dog in the RFC assessment. While
the ALJ did not include such an accommodation in the RFC
assessment, the vocational expert testified that a support dog
would not preclude Bunnell’s employment as a garment folder or
cleaner/polisher. Therefore, any error in failing to include
that limitation in the RFC is, at most, harmless because it does
not change the outcome of the proceeding. See Taylor v. Astrue,
899 F. Supp. 2d 83, 89-90 (D. Mass. 2012).
Bunnell also contends that the ALJ should have included
limitations for her asthma based on the opinions of Drs. Silver
and Stidwell. The ALJ, however, gave those opinions little
weight. As noted above, the ALJ’s determinations about the
weight of opinion evidence is supported by substantial evidence.
Likewise, Bunnell’s contention that the ALJ failed to
consider her limitations based on mental status (such as
compulsive disorder and trichotillomania) is undercut by the
substantial evidence that supports discounting Dr. Silver’s
opinion, Dr. Stidwell’s opinion, and Dr. Dinan’s opinion, in
part, and giving Dr. Landerman’s opinion strong weight. Bunnell
does not—and cannot, given the record before the court—contend
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that the ALJ’s opinion was inconsistent with Dr. Landerman’s
opinion or the portions of Dr. Dinan’s opinion given strong
weight.
Finally, Bunnell vaguely asserts that the ALJ failed to
adhere to SSR 14-2p3 when evaluating the evidence regarding
Bunnell’s diabetes. However, this argument is not developed
where Bunnell simply states, without any further explanation,
that the ALJ failed to consider the mental and physical
limitations stemming from diabetes in conjunction with other
impairments. Doherty v. Merck & Co., Inc., 892 F.3d 493, 500
(1st Cir. 2018) (“It is a familiar refrain in this circuit that
‘issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.’”)
(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990)). In any event, the ALJ expressly considered the effects
of Bunnell’s diabetes, and his findings are supported by the
medical reports that it was managed throughout the claimant’s
disability period. Furthermore, the ALJ relied upon opinion
evidence in which the effects of Bunnell’s diabetes were
examined and found to be managed.
3 SSR 14-2p provides information about how the Social Security
Administration evaluates and determines the types of limitations
and impairments resulting from diabetes.
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In sum, substantial evidence supports the ALJ’s finding that
Bunnell was not disabled. At most, Bunnell simply shows that,
given the evidence in the record, the ALJ could have made a
different decision. Even if true, that is not sufficient to
warrant reversal or remand. Quaglia v. Colvin, 52 F. Supp. 3d
323, 334 (D. Mass. 2014).
CONCLUSION
For the foregoing reasons, Bunnell’s motion to reverse
(doc. no. 8) is denied, and the Commissioner's motion to affirm
(doc. no. 9) is granted.
The clerk of the court shall enter judgment in accordance
with this order and close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
September 5, 2019
cc: Counsel of Record
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