Downing v. US Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Linda Downing
v. 	Case No. 19-cv-1047-PB
Andrew Saul, Commissioner
Social Security Administration
REPORT AND RECOMMENDATION
Linda Downing challenges the denial of her application for
a period of disability and disability insurance benefits
pursuant to 42 U.S.C. § 405(g). 	She contends that the
Administrative Law Judge (“ALJ”) erred in evaluating her mental
residual functional capacity for the period prior to June 2016.
The Commissioner, in turn, moves for an order affirming the
ALJ’s decision. 	Finding no reversible error, the court
recommends that the district judge deny Downing’s motion and
grant the Commissioner’s motion.
I. 	STANDARD OF REVIEW
The court is authorized to review the pleadings submitted
by the parties and the administrative record and enter a
judgment affirming, modifying, or reversing the “final decision”
of the Commissioner. 	See 42 U.S.C. § 405(g). 	That review is
limited, however, “to determining whether the [Commissioner]
used the proper legal standards and found facts [based] upon the
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proper quantum of evidence.” 	Ward v. Comm’r of Soc. Sec., 211
F.3d 652, 655 (1st Cir. 2000). 	The court defers to the
Commissioner’s findings of fact, so long as those findings are
supported by substantial evidence. 	Id. 	Substantial evidence
exists “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.,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (quoting
Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981)).
If the Commissioner’s factual findings are supported by
substantial evidence, they are conclusive, even where the record
“arguably could support a different conclusion.” 	Id. at 770.
The Commissioner’s findings are not conclusive, however, “when
derived by ignoring evidence, misapplying the law, or judging
matters entrusted to experts.” 	Nguyen v. Chater, 172 F.3d 31,
35 (1st Cir. 1999) (per curiam). 	“Issues of credibility and the
drawing of permissible inference from evidentiary facts are the
prime responsibility of the Commissioner, and the resolution of
conflicts in the evidence and the determination of the ultimate
question of disability is for [him], not for the doctors or for
the courts.” 	Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018)
(internal quotation marks and brackets omitted).
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II. 	BACKGROUND1
A. 	Procedural Facts
Downing is a 60-year-old woman who completed one year of
college. 	She previously worked as a billing clerk in a hospital
and a part-time associate/cashier at the Rite Aid Pharmacy. 	She
alleges disability as of August 1, 2012, due to major depressive
disorder, anxiety disorder, somatoform disorder, diabetes
mellitus, peripheral neuropathy, obesity, and osteoarthritis of
the knees.
Downing first applied for disability insurance benefits
(“DIB”) in March 2012. 	After her claim was eventually denied at
the final agency level in July 2016, she sought review in this
court. 	The parties agreed to a remand, and the court remanded
the case for further proceedings in March 2017. 	In the interim,
Downing filed a new application for DIB. 	Her claim was approved
at the initial level with a disability onset date of April 22,
2015.
On remand of her first application, the Appeals Council
assigned the case to a new ALJ, who held two hearings in
November 2018 and March 2019. 	The ALJ issued a partially
favorable decision, finding that Downing had become disabled on
1 The court provides a brief summary of the relevant facts. 	A
more detailed recitation appears in the parties’ statements of
material facts (Doc. Nos. 8 & 10), which the court incorporates
by reference. 	See L.R. 9.1(b)-(c).
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June 1, 2016, and reopened the prior determination that had
found her disabled as of April 22, 2015. 	On appeal, Downing
challenges the ALJ’s determination that she was not disabled
during the period between August 1, 2012 and May 31, 2016.
B. 	Relevant Medical Opinions
Downing attended a consultative examination with Cheryl
Bildner, Ph.D., a licensed psychologist, in June 2012. 	She was
a good historian, cooperative with the examination, and
intermittently tearful. 	On examination, her speech was
organized and goal-directed; she was alert and oriented with no
deficits in recent or remote memory; her mood was depressed; her
thought process was intact; and she focused on her financial and
physical problems. 	Downing recalled 3/3 words immediately and
2/3 words following a five-minute delay. 	She correctly spelled
the word “world” forward and backward. 	Her attention and
concentration were good, and she was within the average range
for intelligence and fund of knowledge. 	Downing followed simple
directions, her insight appeared fair, and her motivation seemed
variable. 	See Tr. 442-43.
Dr. Bildner opined that Downing could complete her
activities of daily living but that sometimes she performed them
in a modified manner due to her lower extremity pain. 	She also
opined that Downing could understand and recall basic work-like
procedures, noting that no gross deficits were observed in her
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cognitive functioning. 	According to Dr. Bildner, Downing could
interact appropriately and communicate effectively with others,
maintain attention and concentration in a place of employment,
cope with stress in a work environment, make simple decisions,
maintain attendance, and interact appropriately with
supervisors. 	Her task completion, however, might be prolonged
due to reported pain and physical limitations. 	See Tr. 444-45.
James Claiborn, Ph.D., a licensed psychologist, testified
as an impartial medical expert at Downing’s March 2019 hearing.
He opined that Downing suffered from depression, anxiety
disorder, and somatoform disorder, resulting in moderate
impairments in her abilities to understand, remember, or apply
information, interact with others, adapt or manage oneself, and
concentrate, persist, or maintain pace. 	See Tr. 815-16. 	He
also opined that she was limited to performing “simple tasks”
and no more than intermittent or incidental contact with the
public. 	See Tr. 817-18. 	The ALJ asked Dr. Claiborn whether the
limitation to “simple tasks” would “preclude instructions that
are detailed, but not complex,” to which Dr. Claiborn responded,
“I think detailed would not be problem. 	Complex would be a
problem.” 	Tr. 818. 	When asked whether the limitations he
described had been present since August 2012, Dr. Claiborn
responded that the level of impairment “basically seems to be
more supported close to December of 2016 than it is to August of
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2012.” 	Tr. 819. 	Regarding the interaction between pain and
Downing’s somatoform disorder, Dr. Claiborn testified that
[s]ometimes with somatoform disorders, we may attribute
the pain entirely to psychological problems. 	Sometimes,
as 	in 	the 	case 	of 	this 	particular 	individual, 	it’s
assumed 	that 	the 	pain 	has 	an 	explanation, 	physical
explanation. 	We’re 	not 	seeing 	disproportionate 	or
unexplained 	pain, 	which 	is 	also 	a 	somatoform 	disorder.
But we are seeing a person who is reacting in ways where
they’re 	paying 	more 	attention 	to 	the 	pain 	or 	that 	it’s
affecting 	the 	mood 	in 	substantial 	ways, 	things 	like
that. 	So having the pain is part of the issue, but pain
is, 	in 	this 	particular 	individual, 	it 	is 	assumed 	to 	be
the result of a physical disorder.
Tr. 825.
C. 	The ALJ’s Decision
The ALJ assessed Downing’s claim under the five-step,
sequential analysis required by 20 C.F.R. § 404.1520. 	At step
one, she found that Downing had not engaged in substantial
gainful activity since her alleged disability onset date of
August 1, 2012. 	Tr. 765. 	At step two, the ALJ found that
Downing’s diabetes mellitus, obesity, osteoarthritis of the
knees, peripheral neuropathy, supraspinatus tear of the left
shoulder, degenerative disc disease of the lumbar spine, major
depressive disorder, anxiety disorder, and somatoform disorder
qualified as severe impairments. 	Tr. 765. 	At step three, the
ALJ determined that, prior to June 2016, none of Downing’s
impairments, considered individually or in combination,
qualified for any listed impairment. 	Tr. 765.
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The ALJ then found that, prior to June 1, 2016, Downing had
the residual functional capacity (“RFC”) to perform sedentary
work as defined in 20 C.F.R. § 404.1567(a), with the following
exceptions:
[T]he 	claimant 	can 	lift 	and 	carry 	ten 	pounds
occasionally 	and 	less 	than 	ten 	pounds 	frequently. 	The
claimant 	can 	stand/walk 	for 	four 	hours 	and 	sit 	for 	six
hours in an eight-hour workday with normal breaks. 	The
claimant 	can 	never 	climb 	ladders, 	ropes, 	or 	scaffolds.
The claimant can occasionally climb ramps and stairs and
occasionally 	balance, 	stoop, 	kneel, 	crouch, 	and 	crawl.
The 	claimant 	should 	have 	less 	than 	occasional 	exposure
to extreme cold and hazards, such as unprotected heights
and 	dangerous 	machinery. 	The 	claimant 	can 	understand,
remember, 	and 	carry 	out 	uncomplicated 	and 	detailed
instructions, which I have defined as tasks that can be
learned in less than six months. 	The claimant is capable
of 	engaging 	in 	incidental 	contact 	with 	the 	public, 	but
dealing 	with 	the 	public 	should 	not 	be 	part 	of 	her 	job
duties 	though 	she 	can 	tolerate 	brief 	encounters. 	The
claimant 	would 	need 	an 	environment 	where 	tasks 	are
generally performed in a solitary manner, but she could
perform 	tandem 	tasks 	up 	to 	ten 	percent 	of 	the 	workday.
In 	such 	a 	setting, 	the 	claimant 	can 	collaborate 	with
coworkers 	and 	supervisors 	on 	routine 	matters 	and 	can
adapt to routine changes.
Tr. 768-69.
In assessing Downing’s mental RFC prior to June 2016, the
ALJ gave “great weight” to the opinion of testifying medical
expert Dr. Claiborn and “less weight” to the June 2012 opinion
of consultative examiner Dr. Bildner.2 	Tr. 778-79.
2 The ALJ evaluated additional medical opinions in the record,
including Dr. Bildner’s December 2016 opinion. 	As Downing does
not challenge the ALJ’s weighing of those opinions, the court
does not address them.
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Relying on the testimony of a vocational expert, the ALJ
then found at step four that, prior to June 1, 2016, Downing
could have performed her past relevant work as a billing clerk.
Tr. 781-82. 	Accordingly, the ALJ concluded that Downing had not
been disabled prior to June 1, 2016. 	Tr. 784. 	However, the ALJ
found that beginning on June 1, 2016, the severity of Downing’s
mental impairments met the criteria of Listing 12.04, resulting
in a finding of disability as of that date. 	Tr. 782-84.
III. 	ANALYSIS
Downing challenges the ALJ’s decision that she was not
disabled prior to June 1, 2016, on the ground that the ALJ’s
mental RFC assessment is flawed. 	Specifically, she contests the
finding that she could understand, remember, and carry out
detailed and uncomplicated instructions, as well as the ALJ’s
weighing of two medical opinions. 	Because substantial evidence
supports the ALJ’s RFC finding and her evaluation of the medical
opinions, remand is not necessary.
A. 	RFC Assessment
A claimant’s RFC is “the most [the claimant] can still do
despite [her] limitations.” 	20 C.F.R. § 404.1545(a)(1). 	It
must be crafted by an ALJ based on all relevant evidence in the
record. 	Id. 	In so doing, the ALJ “must consider limitations
and restrictions imposed by all of an individual’s impairments,
even those that are not ‘severe.’” 	Stephenson v. Halter, 2001
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DNH 154, 2001 WL 951580, at *2 (D.N.H. Aug. 20, 2001) (quoting
SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996)). 	This is
typically done by “piec[ing] together the relevant medical facts
from the findings and opinions of multiple physicians,”
Evangelista v. Sec’y of Health & Human Servs., 826 F.2d 136, 144
(1st Cir. 1987), but may sometimes incorporate “common-sense
judgments about functional capacity” based upon those findings.
Gordils v. Sec’y of Health & Human Servs., 921 F.2d 327, 329
(1st Cir. 1990). 	The ALJ, however, may not “interpret raw
medical data in functional terms” or substitute her own opinion
on medical issues. 	Nguyen, 172 F.3d at 35.
The ALJ found that Downing retained the capacity to
understand, remember, and carry out uncomplicated and detailed
instructions, which the ALJ defined as tasks that could be
learned in less than six months. 	See Tr. 767. 	Downing contends
that this finding is inconsistent with Dr. Claiborn’s opinion
and was based upon the ALJ’s own evaluation of raw medical
evidence. 	The record does not support either contention.
First, there is no inconsistency between the ALJ’s finding
and Dr. Claiborn’s opinion. 	Dr. Claiborn opined that Downing
was restricted to “simple tasks” but that this limitation did
not preclude “detailed” instructions, only “complex” ones. 	Tr.
818. 	This is in line with the RFC finding that Downing could
handle “uncomplicated and detailed instructions.” 	Tr. 767.
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To the extent Downing argues that Dr. Claiborn’s opinion is
internally inconsistent, the court disagrees. 	There is a
difference between “the ability to perform tasks and the ability
to understand instructions,” such that it is “possible to be
limited in the former without being limited to the same extent
(or at all) in the latter.” 	King v. Saul, 787 Fed. App’x 170,
171 (4th Cir. 2019) (per curiam) (emphasis in original); see
also Winningham v. Colvin, No. 4:12-CV-6, 2013 WL 2177583, at *6
(N.D. Ind. May 20, 2013) (concluding that “performing simple
tasks is not necessarily inconsistent with the ability to carry
out detailed instructions”). 	Furthermore, even “simple tasks
(such as driving directions) could have detailed instructions.”
King, 787 Fed. App’x at 171. 	Accordingly, Dr. Claiborn’s
opinion that Downing could handle detailed instructions despite
being limited to simple tasks is not internally inconsistent.
Second, the ALJ did not interpret raw medical data in
functional terms when she defined “uncomplicated and detailed
instructions” as tasks that could be learned in less than six
months. 	See Tr. 767. 	Downing is correct that Dr. Claiborn’s
opinion does not include this definition. 	In making her
assessment, however, the ALJ made a common-sense judgment based
on other evidence in the record. 	Specifically, the ALJ reasoned
that Downing had worked a semi-skilled job, as a part-time
associate/cashier at the Rite Aid Pharmacy, after her alleged
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disability onset date, and that she left this job due to an
inability to remain on her feet and a reduction in her hours,
not because she could not mentally perform the job. 	See Tr.
777. 	Among other mental demands, semi-skilled work requires a
person to understand, remember and carry out detailed
instructions. 	See U.S. Soc. Sec. Admin., Program Operations
Manual System § DI 25020.010(B)(4), available at
http://policy.ssa.gov/poms.nsf/aboutpoms (last visited May 11,
2020)3; see also Serafin v. Berryhill, No. 18-CV-1053 SMV, 2019
WL 3843051, at *4 (D.N.M. Aug. 15, 2019). 	Further, semi-skilled
jobs correspond to a specific vocational preparation (SVP) range
of 3-4, which means that a typical worker needs up to six months
to learn the techniques, acquire information, and develop the
ability to perform the job. 	See SSR 00-4p, 2000 WL 1898704, at
*3 (Dec. 4, 2000); U.S. Dep’t of Labor, Dictionary of
Occupational Titles (4th ed. rev. 1991), App. C, § II, 1991 WL
688702. 	Therefore, the ALJ’s RFC finding that Downing could
understand, remember, and carry out uncomplicated and detailed
instructions, defined as tasks that can be learned in less than
3 The Program Operations Manual System (“POMS”) contains “the
publicly available operating instructions for processing Social
Security claims.” 	Artz v. Barnhart, 330 F.3d 170, 176 (3d Cir.
2003) (internal quotation marks omitted). 	“Although not binding
law, . . . POMS is persuasive authority.” 	Buck v. Berryhill,
869 F.3d 1040, 1050–51 (9th Cir. 2017) (internal quotation marks
and brackets omitted).
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six months, is consistent with the requirements of semi-skilled
work. 	The ALJ supportably found that Downing’s return to work
in a semi-skilled position during the period of alleged
disability supported this RFC finding. 	See 20 C.F.R. § 404.1571
(“Even if the work [the claimant has] done [during the period of
alleged disability] was not substantial gainful activity, it may
show that [she is] able to do more work than [she] actually
did.”).
Because Downing engaged in semi-skilled work during the
period of alleged disability and Dr. Claiborn testified that she
could perform simple tasks that required detailed and
uncomplicated instructions, substantial evidence supports the
ALJ’s mental RFC assessment.
B. 	Medical Opinions
Downing argues that the ALJ erroneously gave “great weight”
to Dr. Claiborn’s opinion and “less weight” to Dr. Bildner’s
2012 opinion. 	The court finds no merit in either argument.4
An ALJ must consider “medical opinions” provided by both
treating and non-treating “acceptable medical sources,”
“together with the rest of the relevant evidence.” 	20 C.F.R.
4 In the arguments section of her brief, Downing recites the
ALJ’s findings regarding additional medical opinions, but she
does not allege any error in the ALJ’s analysis or findings.
Accordingly, the court deems potential arguments relating to
those opinions waived for insufficient development. 	See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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§ 404.1527(a)-(b) (effective for claims filed before March 27,
2017); see SSR 96-8p, 1996 WL 374184, at *7. 	In addition, the
ALJ must address each medical opinion and explain why those that
conflict with the RFC assessment were not adopted. 	SSR 96-8p,
1996 WL 374184, at *7.
The regulations define “medical opinions” as “statements
from acceptable medical sources that reflect judgments about the
nature and severity of [a claimant’s] impairment(s), including
[her] symptoms, diagnosis and prognosis, what [she] can still do
despite impairment(s), and [her] physical or mental
restrictions.” 	20 C.F.R. § 404.1527(a)(1). 	When weighing a
medical opinion, an ALJ must consider, inter alia, the nature of
the relationship between the medical source and the claimant,
the supportability of the opinion, the consistency of the
opinion with the record as a whole, and whether the source of
the opinion is a specialist. 	Id. § 404.1527(c).
An ALJ is generally required to give more weight to the
opinion of a source who has examined a claimant than to the
opinion of a nonexamining source. 	Id. § 404.1527(c)(1).
“However, just as an ALJ may properly decline to give
controlling weight to the opinion of a treating source, an ALJ
may also discount the weight given to the opinion of an
examining source in favor of the opinion of a nonexamining
source.” 	Wall v. Berryhill, 2019 DNH 103, 2019 WL 2723887, at
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*4 (D.N.H. June 27, 2019) (quoting Freddette v. Berryhill, 2019
DNH 003, 2019 WL 121249, at *5 (D.N.H. Jan. 7, 2019)).
1. 	Dr. Claiborn’s Opinion
Downing argues that the ALJ erroneously gave “great weight”
to Dr. Claiborn’s opinion based, in part, upon a finding that
“his residual functional capacity considered [Downing’s] reports
of pain as part of her diagnosis of somatoform disorder.” 	Tr.
778. 	She maintains that this finding is contradicted by Dr.
Claiborn’s testimony. 	Having carefully reviewed the relevant
testimony, the court disagrees.
Dr. Claiborn testified that pain was not a symptom of
Downing’s somatoform disorder because her pain was assumed to
result from a physical disorder. 	See Tr. 825. 	Rather, the way
she was processing that pain, such as focusing her attention on
it or having it substantially affect her mood, was a symptom of
her somatoform disorder, which Dr. Claiborn considered when
assessing Downing’s limitations. 	See Tr. 825. 	Thus, the ALJ
supportably determined that Dr. Claiborn had considered the
effect of pain as part of Downing’s somatoform disorder.
In addition, the ALJ considered the combined effect of
Downing’s pain and fatigue apart from Dr. Claiborn’s testimony.
The ALJ concluded that no further restriction in her RFC was
needed, because the treatment notes showed that Downing was
generally in no acute distress, her mental status examinations
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were primarily benign, there were no reports of frequent
fatigue, and her pain was treated conservatively. 	See Tr. 777.
Downing alleges no error with this analysis. 	Accordingly, the
court finds that the ALJ properly considered the impact of
Downing’s pain on her functioning and supportably gave “great
weight” to Dr. Claiborn’s opinion.
2. 	Bildner’s Opinion
Downing contends that the ALJ erroneously assigned “less
weight” to the opinion of consultative examiner Dr. Bildner,
because Dr. Claiborn testified that he relied, in part, on Dr.
Bildner’s opinion. 	This argument is meritless. 	The ALJ
reasoned that Dr. Bildner examined Downing prior to the alleged
disability onset date, whereas Dr. Claiborn had the benefit of
the full medical record. 	See Tr. 779. 	This is a legitimate
reason to account for the relative weight the ALJ assigned to
the two opinions. 	See 20 C.F.R. § 404.1527(c)(6) (“the extent
to which a medical source is familiar with the other information
in [a claimant’s] case record [is a] relevant factor[] that we
will consider in deciding the weight to give to a medical
opinion”).
To the extent Downing argues that the ALJ’s analysis is
flawed because she failed to resolve an inconsistency between
Dr. Bildner’s and Dr. Claiborn’s opinions, the court is not
persuaded that the two are inconsistent. 	Dr. Claiborn opined
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that Downing could complete simple tasks that require detailed
and uncomplicated instructions. 	Tr. 818. 	On the other hand,
Dr. Bildner opined that Downing could recall “basic work like
procedures,” based on her observation of “[n]o gross deficits .
. . in cognitive functioning.” 	Tr. 445. 	Contrary to Downing’s
suggestion, Dr. Bildner did not offer an opinion on the types of
instructions Downing could understand and remember. 	In any
event, even if the two opinions were inconsistent in this
regard, as discussed above, the ALJ supportably gave more weight
to Dr. Claiborn’s opinion. 	Accordingly, Downing’s challenges to
the ALJ’s weighing of medical opinions fail.
IV. 	CONCLUSION
For the aforementioned reasons, Downing’s motion for an
order reversing the Commissioner’s decision (Doc. No. 7) should
be denied, the Commissioner’s motion for an order affirming his
decision (Doc. No. 9) should be granted, and the clerk of the
court should be directed to enter judgment in favor of the
Commissioner and close the case.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The 14-day period may be extended upon
motion. 	Failure to file a specific written objection to the
Report and Recommendation within the specified time waives the
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right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 7, 2020
cc: 	D. Lance Tillinghast, Esq.
Jessica Tucker, Esq.
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