Brown v. US Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Carl J. Brown
v. Civil No. 19-cv-422-LM
Opinion NO. 2020 DNH 053
Andrew M. Saul, Commissioner
Social Security Administration
O R D E R
Carl J. Brown seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Commissioner of the Social
Security Administration, denying his application for disability
insurance benefits under Title II. In support, he contends that
the Administrative Law Judge (“ALJ”) erred in weighing the
medical opinion evidence and in evaluating his hearing testimony
which led to an erroneous residual functional capacity
assessment. The Commissioner moves to affirm.
Standard of Review
Judicial review of the final decision of the Commissioner
in a social security case determines “whether the final decision
is supported by substantial evidence and whether the correct
legal standard was used.” Coskery v. Berryhill, 892 F.3d 1, 3
(1st Cir. 2018). The court defers to the ALJ’s factual findings
if they are supported by substantial evidence. § 405(g);
Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). Substantial
evidence is “more than a mere scintilla” and means “such
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 1 of 17

2
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. at 1154. The court must affirm
the ALJ’s findings, even if the record could support a different
conclusion, when “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 v. Sec’y of Health &
Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (internal
quotation marks omitted); accord Purdy v. Berryhill, 887 F.3d 7,
13 (1st Cir. 2018).
Background1
Carl Brown was forty-seven years old in October of 2015,
when he alleges his disability began. He previously worked as a
crew laborer, logger, operating engineer, and truck driver. He
was fired from his last job, construction work, on October 8,
2015, because of a dispute with his employer.
Brown applied for social security disability insurance
benefits on November 12, 2015. He alleges that his disability
1 Brown provides few facts pertaining to his medical
history, treatment, diagnoses, and care. See LR 9.1(c).
Instead, Brown’s factual statement provides the procedural
history of the administrative proceedings and summarizes
findings in the ALJ’s decision. Brown also provided some
information from the opinions of Drs. MacDonald, Tung, and
Imbrie, but no information from his medical records about his
treatment or diagnoses by those doctors. The Commissioner
provided limited information from the medical records in his
supplement to Brown’s factual statement.
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 2 of 17

3
began on October 8, 2015, which is the date he was fired from
his job. Brown alleges disability caused by ischemic
cardiomyopathy, diabetes, ulcerative colitis, colostomy, nerve
damage in his feet, and carpal tunnel in his right hand.
Brown had a consultative physical examination done by Dr.
Peter C. Loeser in January of 2016. Dr. Loeser diagnosed non-
ischemic cardiomyopathy with a reported EF of 10, poorly
controlled diabetes, and morbid obesity.2 He provided other
normal findings except for trace-pitting edema in the lower legs
and decreased fine-touch sensation in the big toe of Brown’s
right foot.
Dr. Sandell, a state agency physician, reviewed Brown’s
medical records and his functional report, and provided a
functional capacity opinion on January 23, 2016. She found that
Brown was able to occasionally lift and carry twenty pounds and
to frequently lift and carry ten pounds. He could stand, sit,
or walk for six hours in an eight-hour work day. He could
occasionally climb ramps and stairs and occasionally do postural
2 EF is an abbreviation for ejection fraction, a measure of
how much blood is being pumped from the left ventricle with each
contraction of the heart. A normal ejection fraction is about
55 to 65 percent. MedlinePlus Medical Encyclopedia, heart
failure-tests, https://medlineplus.gov/ency/patientinstructions
/000366.htm (Mar. 30, 2020); Rashid v. Saul, 2020 WL 1274185, at
*3, n.4 (D. Mass. Mar. 17, 2020). Brown’s EF of 10 percent was
from a test in November of 2014, before Brown’s onset date and
while he was still working.
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 3 of 17

4
activities. She also found that Brown should avoid concentrated
exposure to extreme cold.
As part of his cardiovascular care, Brown had
echocardiograms in April and October of 2016, which showed an EF
of 35 percent. Dr. Hugh MacDonald, Brown’s primary care
physician, examined him on December 2, 2016, and January 13,
2017. In his examination notes for the December 2 visit, Dr.
MacDonald wrote that Brown was seen for a hospital follow-up
after a hospitalization of several days duration and for follow-
up of congestive heart failure. Dr. MacDonald recorded “normal”
findings for Brown’s abdominal, cardiovascular, and respiratory
system examinations.
Brown was seen again on January 13, 2017, for follow up of
congestive heart failure. Dr. MacDonald noted Brown’s history
of systolic heart failure, ischemic cardiomyopathy, diabetes
type 2, and an EF of 35 percent. He recorded findings of
“normal” for Brown’s respiratory, cardiovascular, and extremity
examinations.
Dr. MacDonald provided a “Physical Impairment Medical
Source Statement” dated February 3, 2017. He wrote that he had
treated Brown since January of 2009, and listed his diagnoses as
cardiomyopathy “requiring ICD,” diabetes, congestive heart
failure, anemia, hypertension, ulcerative colitis, chronic
kidney disease, and depression. Dr. MacDonald found that Brown
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 4 of 17

5
could not tolerate any work stress and could not do work at even
a sedentary exertional level.
From November of 2012 through January of 2017, Brown was
treated by Dr. Paul Tung, an endocrinologist, for diabetes
mellitus type 2.3 In February of 2017, Dr. Tung completed a
“Diabetes Mellitus Medical Source Statement” in which he checked
boxes to show that Brown could never lift ten pounds or more,
could walk or stand for less than two hours in a work day, and
would need other accommodations for symptoms and pain. Dr. Tung
also indicated that the limitations he found had existed since
October 8, 2015.
Dr. Gregory Imbrie, who was Brown’s cardiologist in March
of 2017, had been treating him for four months at that time.
Dr. Imbrie noted that an echocardiogram done on February 16,
2017, which showed an EF of 20 percent, a severely enlarged left
ventricle, and other findings that were the basis of his opinion
about Brown’s impairment.4 Dr. Imbrie diagnosed a New York Heart
Association functional classification of III. That
classification indicates marked limitation in activity because
of symptoms and a patient who is comfortable only when resting.
3 Although Dr. Tung’s treatment records included in the
Administrative Record begin in October of 2014, Dr. Tung wrote
on his “Diabetes Mellitus Medical Source Statement” that he had
treated Brown since November 21, 2012.
4 Dr. Imbrie’s handwriting is difficult to read.
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 5 of 17

6
See www.heart.org/en/health-topics/heart-failure/what-is-heart-
failure/classes-of-heart-failure. Dr. Imbrie found that Brown
could not tolerate work stress and that he was limited to work
at a sedentary exertional level except that his ability to sit,
stand, and walk was limited to less than eight hours and he had
other limitations in his ability to work. Dr. Imbrie indicated
that Brown’s impairments had existed since October 8, 2015.
A hearing was held before an ALJ who then became
unavailable before issuing a decision. Another ALJ held a
hearing which was continued to allow additional preparation by
the medical expert, Dr. James W. Todd. The final hearing was
held on June 11, 2018. Brown, Dr. Todd, and a vocational expert
testified at the hearing.
Dr. Todd, who is board certified in cardiology and internal
medicine, noted Brown’s diagnoses of congestive heart failure,
the levels of his condition over time, and the functional
capacity assessments by others that were in Brown’s record. Dr.
Todd testified that Brown met a listed impairment in the spring
of 2017. During the relevant period, except for the spring of
2017, Dr. Todd found that Brown would have had a residual
functional capacity to do light work.
The ALJ posed a hypothetical question to the vocational
expert of a forty-seven-year-old man who can lift twenty pounds
occasionally and ten pounds frequently and should not climb
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 6 of 17

7
because of his weight and in a second hypothetical question that
limited his postural activities. The vocational expert
responded, listing the jobs of package sorter, housekeeper, and
bench assembler as representative jobs. When Brown’s attorney
added other limitations, the vocational expert testified those
limitations would preclude all jobs.
The ALJ issued a decision on July 17, 2018. He found that
Brown had severe impairments due to cardiomyopathy and morbid
obesity. The ALJ further found that Brown was disabled as of
February 16, 2017, when his cardiomyopathy met the requirements
of 20 C.F.R. Part 404, Subpart P, Appendix 1, § 4.02, and
continued to be disabled through the date of the decision.
Prior to that date, however, the ALJ found that Brown had a
residual functional capacity to do light work, except that he
could not climb ladders, ropes, or scaffolds. Based on that
functional capacity assessment, the ALJ found that Brown could
do the jobs the vocational expert had identified during the
hearing. As a result, the ALJ found that Brown was not disabled
until February 16, 2017.
The Appeals Council denied Brown’s request for review,
making the ALJ’s decision the Commissioner’s final decision.
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 7 of 17

8
Discussion
In support of his motion to reverse the Commissioner’s
decision, Brown contends that the ALJ erred in giving great
weight to the opinions of Drs. Todd, Loeser, and Sandell, while
giving little weight to the opinions of his treating doctors,
Drs. MacDonald, Tung, and Imbrie. He also contends that the ALJ
erred in evaluating Brown’s testimony about his symptoms and
limitations. Those errors, Brown argues, caused the ALJ to
improperly assess his residual functional capacity. The
Commissioner moves to affirm.
A disability determination proceeds through a five-step
sequential analysis. 20 C.F.R. § 404.1520. The claimant bears
the burden through the first four steps of proving that his
impairments make him disabled from working. Purdy, 887 F.3d at
9. At the fifth step, the Commissioner has the burden of
showing that jobs exist which the claimant can do. Heggarty v.
Sullivan, 947 F.2d 990, 995 (1st Cir. 1991). If no finding of
disability is made at the third step, the ALJ assesses the
claimant’s residual functional capacity before addressing steps
four and five. 20 C.F.R. § 404.1520(e).
A. Medical Opinions
An ALJ is required to consider medical opinions along with
all other relevant evidence in a claimant’s record. 20 C.F.R.
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 8 of 17

9
§ 404.1527(b). “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 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 evaluates medical opinions based upon the nature of the
medical source’s relationship with the claimant, the extent to
which the source provides evidence to support the opinion, the
extent the opinion is consistent with other evidence in the
record, the specialization of the medical source, and other
factors including the understanding the source has of the social
security system. § 404.1527(c); see also Brunnell v.
Commissioner of Social Security, 18-cv-569-LM, 2019 WL 4201068,
at *4 (D.N.H. Sept. 5, 2019).
1. Dr. MacDonald
Dr. MacDonald is Brown’s treating primary care doctor.
Based on his functional capacity assessment, Dr. MacDonald found
that Brown was not capable of working. The ALJ gave Dr.
MacDonald’s opinion that Brown could not work no weight, because
that decision is reserved for the Commissioner.
The ALJ gave Dr. MacDonald’s functional capacity findings
little weight because they were inconsistent with his own
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 9 of 17

10
treatment notes and other medical evidence in the record. The
ALJ also noted that although Dr. MacDonald indicated that Brown
had had the same impairments since the alleged onset date,
October 8, 2015, he did not indicate whether Brown’s functioning
remained the same over that period. The ALJ further noted that
Dr. MacDonald’s opinion was provided on a check-box form with
little explanation.
Brown’s challenges to the ALJ’s analysis lack merit.
Contrary to Brown’s argument, the ALJ did not say it was unclear
when Dr. MacDonald found Brown’s impairments had begun.
Instead, the ALJ noted that Dr. MacDonald did not say whether
Brown’s limitations due to those impairments, functional
limitations, had remained the same over the whole period
beginning on October 8, 2015.5 Because Brown was working full
time at a construction job until October 8 when he was fired, a
finding of an inability to work at that time would be
inconsistent with the record. The ALJ explained that the
record, including Dr. MacDonald’s treatment notes, showed that
Brown’s condition was mostly stable until the exacerbation of
his heart condition in February of 2017, with a short-term acute
5 The ALJ also cited Dr. MacDonald’s note on the medical
source statement, made on April 30, 2018, that said Brown’s
impairments were worsening.
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 10 of 17

11
exacerbation in the fall of 2016, when his condition improved
with treatment.
Brown argues that the ALJ erred in focusing on his heart
condition without considering his other diagnoses and symptoms
as bases of Dr. MacDonald’s opinion.6 Although Dr. MacDonald
identified other diagnoses in addition to cardiomyopathy and
heart failure, he did not link any of his functional capacity
findings to those diagnoses or particular symptoms. More
specifically, Dr. MacDonald wrote that the reason Brown could
not tolerate work stress at all was due to his cardiovascular
condition. The findings that follow appear to be related to
Brown’s cardiovascular condition rather than to other diagnoses
or symptoms. Brown has not shown which limitations he believes
were based on diagnoses or symptoms other than his heart
condition and related symptoms. Therefore, Brown has not shown
an error in the ALJ’s consideration of Dr. MacDonald’s opinion.
2. Dr. Tung
Dr. Tung, Brown’s treating endocrinologist, provided an
opinion in February of 2017 that Brown could do work at the
sedentary exertional level but would have to keep his legs
elevated while sitting and change positions at will. The ALJ
6 The ALJ found severe medically determinable impairments
due to cardiomyopathy and morbid obesity.
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 11 of 17

12
found Dr. Tung’s opinion unpersuasive because his treatment
notes showed that Brown had peripheral neuropathy while he was
working full time in a construction job before his alleged onset
date and the notes did not show that Brown’s condition worsened.
Brown contends the ALJ’s assessment was wrong because Dr. Tung
limited his opinion to the period after his onset date and
because the ALJ did not explain how the opinion was inconsistent
with the medical record.
Dr. Tung actually said that Brown’s impairments had existed
since the onset date, October 8, 2015. Contrary to Brown’s
interpretation, Dr. Tung did not say Brown did not have
peripheral neuropathy before the onset date or indicate that
Brown’s impairments worsened. Brown was working until October
8, as the ALJ points out. The ALJ cited Dr. Tung’s records to
show the inconsistency he describes. Further, Dr. Tung’s
treatment note on October 22, 2015, just after the onset date
when Brown stopped working, states that Brown’s foot pain had
decreased and that he had no throbbing or numbness. Therefore,
the ALJ properly assessed Dr. Tung’s opinion based on the
medical record.
3. Dr. Imbrie
Dr. Imbrie, Brown’s cardiologist, began treating Brown in
February of 2017, just before he provided his opinion. As a
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 12 of 17

13
result, he did not have the longitudinal view of Brown’s
condition that a treating doctor would have. Dr. Imbrie found
that Brown lacked the capacity to work.
The ALJ gave the opinion less weight because it was not
clear when the limitations Dr. Imbrie described had begun.7 The
ALJ explained that Brown had had a significant decline in his EF
percent in February, when Imbrie began his treatment. The ALJ
further explained that treatment notes and objective medical
evidence prior to that time did not support a conclusion that
the level of limitation Dr. Imbrie found had existed before
February of 2017. The ALJ properly weighed Dr. Imbrie’s opinion
and explained his reasons for the weight given.
4. Dr. Todd
Dr. Todd testified at the hearing about Brown’s residual
functional capacity. Dr. Todd is board certified in cardiology
and internal medicine. He found that Brown was capable of light
work except for a period of a few months in the spring of 2017.
The ALJ found that Dr. Todd’s opinion was most persuasive and
relied on it to assess Brown’s residual functional capacity
until February 16, 2017.
7 Brown again argues that because Dr. Imbrie indicated that
his impairments had existed since the onset date, there was no
ambiguity in when his limitations began. As is explained above,
Brown fails to grasp the distinction between impairments and
limitations that the ALJ makes.
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 13 of 17

14
Brown objects to the weight given to Dr. Todd’s opinion but
the grounds are not clear. He says the ALJ erred in finding
that the opinion was within Dr. Todd’s area of expertise,
cardiology, because Brown had other medical conditions. The
ALJ, however, did not find that the other medical conditions,
except morbid obesity, were severe medically determinable
impairments. Brown notes that the hearing was continued to give
Dr. Todd additional time to review the record but does not
explain why that circumstance would undermine the weight given
to his opinion. The ALJ adequately explained the weight he gave
to Dr. Todd’s opinion, and Brown has not shown the ALJ’s
evaluation was erroneous.
5. Drs. Loeser and Sandell
The ALJ gave the opinions provided by consultative and
examining physician, Dr. Loeser, and state agency reviewing
physician, Dr. Sandell, great weight. In doing so, however, he
explained that the most weight was given to Dr. Todd’s opinion
because he had the opportunity to review the entire record.
Brown faults the weight given to those opinions because there
was substantial evidence added to the record after their
opinions were prepared and provided. The ALJ, however,
explained that he relied primarily on Dr. Todd. Therefore, any
error in the weight given is harmless.
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 14 of 17

15
B. Brown’s Testimony
Brown also contends that the ALJ erred in evaluating his
testimony about his symptoms and limitations. He argues that
the ALJ improperly discounted his testimony as not supported by
the objective medical evidence in the record. The Commissioner
responds by showing that the ALJ considered a variety of
factors, not just objective medical evidence, to evaluate
Brown’s testimony about his symptoms and limitations.
An ALJ is required to consider a claimant’s statements
about his symptoms, including pain, in determining whether the
claimant is disabled. 20 C.F.R. § 404.1529; Social Security
Ruling (“SSR”) 16-3p, 2016 WL 1119029; Coskery, 892 F.3d at 4.
“In evaluating the intensity and persistence of [the claimant’s]
symptoms, including pain, [the ALJ] will consider all of the
available evidence, including [the claimant’s] medical history,
the medical signs and laboratory findings, and statements about
how [the claimant’s] statements affect [him].” § 404.1529(a);
see also § 404.1529(c)(3).
Brown argues that the ALJ improperly discounted his
testimony based on the ALJ’s statement that the objective
medical evidence did not fully support Brown’s testimony and
that Brown had “failed to establish a correlation between the
allegations and the objective medical evidence.” AR at 26. In
the part of the ALJ’s decision that Brown cites, however, the
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 15 of 17

16
ALJ was analyzing Brown’s testimony under SSR 96-7p, which has
now been superseded and did not apply to Brown’s case. If the
ALJ had stopped there and relied only on that analysis, he would
have erred.
Instead, the ALJ continued to analyze Brown’s testimony
under SSR 16-3p, which is the correct regulatory framework.8 The
ALJ went on to consider the medical evidence and Brown’s
statements to his health care providers from June of 2013
through February 16, 2017, when the ALJ found Brown became
disabled. That evidence showed that Brown’s activities and
medical examination and test results did not support Brown’s
testimony about the severity of limitations. The ALJ also noted
that Brown continued to work while he had the same impairments
that were reported after his alleged onset date and that he
continued to collect unemployment benefits for six months after
his alleged onset date.9
8 The ALJ did not explain why he referred to an SSR that had
been superseded more than two years before his decision issued.
9 Application for and receipt of unemployment benefits
requires certification of an ability to work and may be a factor
that adversely affects the ALJ’s assessment of the claimant’s
testimony about the severity and disabling effects of his
symptoms. Praytor v. Commissioner, 750 F. App’x 723, 730 (10th
Cir. 2018); Robinson v. Commissioner, 649 F. App’x 799, 802
(11th Cir. 2016); Frisby v. Colvin, 632 F. App’x 226, 227 (5th
Cir. 2016); Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir.
2014); Whitman v. Colvin, 762 F.3d 701, 708 (8th Cir. 2014);
Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir. 2005).
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 16 of 17

17
C. Residual Functional Capacity
Brown contends that the ALJ erroneously assessed his
residual functional capacity because of errors in weighing the
medical opinions in the record and in evaluating Brown’s
testimony.10 As is explained above, no error occurred.
Therefore, substantial evidence supports the ALJ’s assessment of
Brown’s residual functional capacity.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
(document no. 7) is denied. The Commissioner’s motion to affirm
(document no. 10) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________
Landya B. McCafferty
United States District Judge
March 31, 2020
cc: Counsel of record.
10 A claimant’s residual functional capacity is what he or
she “can still do despite his or her limitations.” Social
Security Ruling 96-8p, 1996 WL 374184, at *2 (July 2, 1996). A
residual functional capacity assessment is a determination of
the claimant’s “ability to meet the physical, mental, sensory,
and other requirements of work.” 20 C.F.R. § 404.1545(a)(4).
The claimant is responsible for providing the evidence that the
ALJ uses to make the residual functional capacity assessment.
§ 404.1545(a)(3).
Case 1:19-cv-00422-LM Document 12 Filed 03/31/20 Page 17 of 17