Timsina v. US Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Nar Timsina
v. 	Case No. 19-cv-1262-LM
Andrew Saul, Commissioner
Social Security Administration
REPORT AND RECOMMENDATION
Nar Timsina challenges the denial of her application for
supplemental security income under 42 U.S.C. § 405(g). 	She
contends that the Administrative Law Judge (“ALJ”) erred in
relying upon alternate step five jobs that can only be performed
with a workplace accommodation and improperly weighed medical
opinions in her record. 	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
Timsina’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
Timsina filed her original claim for supplemental security
income on December 31, 2014, when she was 44 years old. 2 Timsina
is illiterate. She is unable to speak, read or write English and
cannot read or write in her native language, Bhutanese. On July
22, 2015, Timsina’s application was denied at the initial level,
so she requested a hearing. The hearing took place on May 12,
2017, before ALJ Dory Sutker. The ALJ denied her claim on June
30, 2017. Timsina, then, requested a review by the Appeals
Council, which was denied on May 8, 2018.
Next, Timsina sought review in this district court. 	After
the parties agreed to a remand, the case was remanded for
further proceedings on November 26, 2018. The Appeals Council,
in turn, remanded the case on December 10, 2018, and directed
the ALJ to (1) re-evaluate the opinions of Timsina’s treating
physicians and non-examining sources; (2) give further
consideration to her residual functional capacity and provide
rationale for its limitations; and (3) obtain supplemental
1 The court provides a summary of the relevant facts. 	A more
detailed recitation appears in the parties’ statements of
material facts (Doc. Nos. 13 & 15), which the court incorporates
by reference. 	See L.R. 9.1(b)-(c).
2 After the filing but before the ALJ’s decision, Timsina changed
age categories from age 18-44 to 45-49.
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evidence from a vocation expert to clarify the effect of the
assessed limitations on Timsina’s occupational base.
The remand hearing was held on August 28, 2019, and the ALJ
denied benefits on September 24, 2019. On appeal, Timsina
challenges the alternate step five jobs identified by the
vocational expert and argues that the ALJ improperly weighed two
medical opinions in the record. 3
B. 	Relevant Medical Opinions4
William Dinan, Ph.D., a licensed psychologist, conducted a
comprehensive psychological profile of Timsina in 2015, based on
a referral from the State of New Hampshire to assess her
functional loss due to migraine headaches, vomiting blood, and
feelings of stress and weakness. See Tr. 399-403. Timsina was
3 Timsina presented a third argument, that the ALJ’s step four
determination is contrary to law because she does not have past
relevant work. The Commissioner has conceded the error and
correctly states that the ALJ’s error is harmless if the step
five determination - that Timsina could perform other jobs that
exist in significant numbers in the national economy - is
supported by substantial evidence. 	See Otero v. Colvin, No. 14-
CV-206-PB, 2015 WL 5089810, at *7 & n.4 (D.N.H. Aug. 27, 2015)
(concluding that any error in making alternate step four and
step five findings is harmless where step five finding is
supported by substantial evidence); Mason v. Astrue, No. 12-CV-
017-SM, 2013 WL 391173, at *6 (D.N.H. Jan. 30, 2013) (finding
step four error harmless where substantial evidence supported
step five finding). 	Accordingly, the court does not address the
step four argument in this Report and Recommendation.
4 The ALJ evaluated additional medical opinions in the record. As
Timsina does not challenge the ALJ’s weighing of those opinions,
the court does not address them.
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cooperative, alert, and well-oriented during the assessment.
See Tr. 400-401. Her speech was clear, her memory function was
adequate, and her attention to visual detail was inconsistent.
See Tr. 400-401. Timsina reported migraine headaches that
occurred three to four times a week for three years. See Tr.
400. She also stated that she suffered from diabetes,
significant stomach pain, blood in her mouth, tiredness,
forgetfulness, and daily sadness. See Tr. 400. Dr. Dinan
observed mild clinical signs of depression and anxiety, a narrow
range of emotional expression, and a depressive tone. See Tr.
400. Dr. Dinan opined that Timsina could complete basic, routine
tasks, tolerate stressors common to a work environment, and did
not have “any emotional barriers maintaining attendance and a
schedule.” Tr. 402-403.
Dr. Dinan conducted a second psychological profile of
Timsina in December 2018, based on a referral from the State to
assess her functional loss due to illiteracy. See Tr. 2197–2201.
Dr. Dinan noted that Timsina was cooperative, alert, well-
oriented, and she provided detailed responses to the questions
being asked. See Tr. 2198-2199. Her speech was clear, her range
of emotional expression was within normal limits, her memory
function was adequate, her concentration was adequate, and her
attention to visual detail was inconsistent. See Tr. 2198-2199.
Dr. Dinan did not observe clinical signs of depression or
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anxiety, and Timsina reported a lower rate of feelings of
sadness as compared to her 2015 evaluation. Compare Tr. 2198,
with Tr. 400. Timsina again reported migraine headaches,
diabetes, and signs of depression, as well as several new
medical conditions, including low hemoglobin, hypothyroidism,
high blood pressure, and increased forgetfulness. See Tr. 2198.
Dr. Dinan opined that Timsina was “not able to focus attention
on work activities and stay on-task at a sustained rate,” and
that she was “not able to regulate emotions, control behavior,
or to maintain well-being in a work setting.” Tr. 2200.
Beth Koester, M.D., became Timsina’s primary care physician
in August 2018. See Tr. 1905. Dr. Koester completed a Medical
Certification for Disability Exceptions, Form N-648, on behalf
of Timsina in June 2019. See Tr. 1904–1909. The form exempted
Timsina from the English and civics testing requirements for
becoming a U.S. citizen through naturalization. See Tr. 1904–
1909. As bases for the exemption, Dr. Koester cited Timsina’s
mild cognitive impairment, memory loss, connective tissue
disorder, and chronic headaches. Tr. 1905. Dr. Koester noted
that she had used historical information provided by Timsina’s
family, administered a standardized test of mental functioning,
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and reviewed a recent brain MRI showing potential scarring from
a previous brain injury. See Tr. 1906-1907.
C. 	The ALJ’s Decision
The ALJ assessed Timsina’s claim under the five-step,
sequential analysis required by 20 C.F.R. § 416.920. At step
one, the ALJ determined that Timsina had not engaged in
substantial gainful activity since December 31, 2014. Tr. 1357.
At step two, the ALJ determined that Timsina has the following
severe impairments: undifferentiated connective tissue disease;
migraines/headaches; type II diabetes mellitus; and depressive
disorder. Tr. 1357. The ALJ noted that these severe impairments
significantly limit the ability to perform basic work activities
as required by Social Security Ruling 85-28. Tr. 1357. The ALJ
also noted that Timsina had reported symptoms of vomiting blood
and bleeding from the mouth on multiple occasions to treating
provides, but her providers were unable to identify an objective
cause for the symptoms. Tr. 1357. The ALJ determined that
Timsina also suffers from hypothyroidism and mild asthma and
that these conditions are not severe because they have been
managed medically. Tr. 1357. At step three, the ALJ determined
that Timsina’s impairments did not meet or medically equal any
listed impairments. Tr. 1358.
At step four, the ALJ determined that Timsina has the
residual functional capacity (“RFC”) to perform light work,
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except she is limited to an environment with no more than a
moderate noise level. Tr. 1360. Further, Timsina could perform
uncomplicated tasks and could concentrate, persist, and maintain
pace for 2-hour blocks of time throughout the workday. Tr. 1360.
Based on this RFC, the ALJ found that Timsina could perform her
past relevant work as a home attendant. Tr. 1372. In the
alternative, at step five, the ALJ relied upon vocational expert
(“VE”) testimony in finding that she could perform other
unskilled light occupational positions that exist in significant
numbers in the economy. Tr. 1374. As a result, the ALJ found
that Timsina was not disabled and denied her claim. Tr. 1374.
III. 	ANALYSIS
Timsina challenges the ALJ’s decision that she was not
disabled on the ground that the alternate step-five jobs
identified by the vocational expert inappropriately required a
workplace accommodation, as well as the ALJ’s weighing of two
medical opinions. Because substantial evidence supports the
ALJ’s step-five finding and her evaluation of the medical
opinions, a remand is not necessary.
A. 	Step Five Analysis
At step five of the sequential analysis, the Commissioner
bears the burden of proof to show that the claimant can do other
work in the national economy despite her impairments. Seavey v.
Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). An ALJ must consider
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the claimant’s age, education, work experience, and RFC in her
analysis. See 20 C.F.R. § 416.969a. “A vocational expert’s
testimony provides substantial evidence for a step five
determination when the expert’s opinion is based on a
hypothetical that reflects an RFC finding supported by
substantial evidence.” Otero, 2015 WL 5089810, at *6 (citing
Perez v. Sec’y of Health & Human Servs., 958 F.2d 445, 447 (1st
Cir. 1991)).
Relying on the VE’s testimony, the ALJ found at step five
that Timsina could perform at least three unskilled jobs that
exist in significant numbers in the national economy: cleaner
(DOT § 323.687-014), laundry worker II (DOT § 361.685-018), and
fruit distributor (DOT § 921.685-046). See Tr. 1374. Timsina
argues that the ALJ’s finding is not supported by substantial
evidence. Specifically, she contends that the ALJ failed to
account for her illiteracy and that she would require a
workplace accommodation to learn the identified jobs, precluding
the ALJ’s reliance upon those jobs at step five.
Timsina’s argument that the ALJ did not consider her
illiteracy is meritless. First, illiteracy “is not a categorical
bar to the performance of jobs requiring level-one language
development,” which is the lowest language rating in the DOT.
Downs v. Colvin, No. 14-cv-319-LM, 2015 WL 3549322 at *11
(D.N.H. June 8, 2015). The three jobs the ALJ identified as
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suitable for Timsina all fall in this language category. 	See
DOT § 323.687-014, 1991 WL 672783; DOT § 361.685-018, 1991 WL
672987; DOT § 921.685-046, 1991 WL 688088. 	Second, the ALJ
explicitly considered Timsina’s illiteracy at step five, and the
VE was aware of this limitation. See Tr. 1373, 1434.
Timsina’s argument that she could not perform the step-five
jobs without workplace accommodation fares no better. Timsina
contends that she would require an interpreter to learn the jobs
the VE had identified, and that, by the VE’s own admission, “if
an interpreter were necessary in a job . . . that would be an
accommodation.” Tr. 1444-1445. The court need not decide whether
needing an interpreter to learn a job is a workplace
accommodation that precludes reliance on that job at step five.
Assuming this would be such an accommodation, there is no
evidence that an interpreter would be needed for the jobs the
ALJ relied upon at step five. The question Timsina’s counsel
posed to the VE was a hypothetical situation regarding
interpreters generally. 	The VE did not testify that an
interpreter was in fact necessary for all the jobs he
identified. 5 	Specifically, the VE explained that some jobs would
5 Timsina’s reliance on the testimony of a VE from a 2017 hearing
is likewise misplaced. Contrary to her suggestion, that VE did
not testify that an individual in Timsina’s position would
require an interpreter to learn a job. 	Rather, the VE testified
that if a person “does not speak English . . . and needs a
translator in order to learn a job, [then the translator] would
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be precluded from possible jobs for Timsina without an
interpreter. See Tr. 1445-1446. Although the VE identified two
jobs that would require an interpreter during training, the ALJ
did not rely upon those jobs in her analysis. Instead, the ALJ
relied on three jobs with respect to which there is no evidence
that an interpreter would be needed. See Tr. 1374. Therefore,
the ALJ did not rely on jobs at step five that require a
workplace accommodation.
B. 	Evaluation of Medical Opinions
Timsina argues that the ALJ’s decisions to give little
weight to Dr. Dinan’s and Dr. Koester’s opinions lack support in
the record. The court disagrees.
An ALJ must consider medical opinions by both treating and
non-treating medical sources. 20 C.F.R. § 416.927(c). An ALJ
considers multiple factors when weighing a medical opinion,
including examining relationship, treatment relationship,
supportability, consistency, and specialization. Id. A treating
physician’s opinion is controlling if it is “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
be an accommodation to that individual to learn that job.” Tr.
85. The VE did not testify that an illiterate person who does
not speak English would in fact need an interpreter to train for
unskilled work generally or any specific job.
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evidence in [the] case record.” Purdy, 887 F.3d at 13 (quoting
20 C.F.R. § 416.927(c)(2)). “[G]ood reasons” must be provided
for the weight given to a treating source’s opinion. 20 C.F.R.
§ 416.927(c)(2).
The ALJ gave little weight to Dr. Dinan’s 2018 opinion
because the ALJ found Dr. Dinan’s conclusions internally
inconsistent. See Tr. 1372. The ALJ’s assessment is supported by
evidence that is “adequate” to persuade “a reasonable mind.”
See Irlanda Ortiz, 955 F.2d at 769 (internal quotation marks
omitted).
The ALJ correctly noted that Dr. Dinan’s clinical
observations were largely the same in both his reports, but his
opinions were markedly different. See Tr. 1372; compare Tr. 400-
403, with Tr. 2198-2201. In fact, whereas in 2015, Dr. Dinan
observed mild signs of depression and anxiety, in 2018, he did
not observe any such signs. Compare Tr. 400, with Tr. 2198.
Despite observing signs of depression and anxiety in 2015, Dr.
Dinan opined that Timsina “did not have any emotional barriers
maintaining attendance and a schedule” and could complete basic,
routine work tasks. See Tr. 403. By contrast, in 2018, Dr. Dinan
observed no such symptoms and yet he opined that Timsina was
unable to stay on-task and was “not able to regulate emotions,
control behavior, and [] maintain well-being in a work setting.”
Tr. 2201. Dr. Dinan did not explain how the reduction in
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symptoms of depression and anxiety supports the conclusion that
Timsina would be less likely to regulate her emotions in the
workplace or stay on-task. See 20 C.F.R. § 416.927(c)(3) (“The
better an explanation a source provides for a medical opinion,
the more weight we will give that medical opinion.”). Nor did
Dr. Dinan cite other symptoms or evidence that could explain the
greater restrictions he imposed in 2018. 6 	See id. (“The more a
medical source presents relevant evidence to support a medical
opinion, particularly medical signs and laboratory findings, the
more weight we will give that medical opinion.). 	The ALJ’s
finding that Dr. Dinan’s conclusions were internally
inconsistent is, therefore, supported by the record.
Timsina argues that the ALJ impermissibly substituted her
lay opinion for Dr. Dinan’s opinion when the ALJ concluded that
Dr. Dinan’s opinion was internally inconsistent. It is true that
an ALJ cannot substitute her own layman’s opinion for the
opinion of a physician. See Gonzalez Perez v. Sec’y of Health &
Human Servs., 812 F.2d 747, 749 (1st Cir. 1987). As a layperson,
the ALJ is not competent to interpret and apply raw medical
6 In the 2018 report, Dr. Dinan did note that Timsina had
reported several new medical conditions that were not listed in
the 2015 report, including low hemoglobin levels,
hypothyroidism, high blood pressure, lupus, and increased
forgetfulness. Tr. 2198. However, the additional medical
conditions were not cited as factors in the determinations of
Timsina’s abilities to work.
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data. Id. (citing Berrios v. Sec’y of Health & Humans Servs.,
796 F.2d 574, 576 (1st Cir. 1986)). But here, the ALJ did not
interpret technical medical data when she concluded that Dr.
Dinan’s opinions were internally inconsistent. Rather, she made
a permissible commonsense determination from the language in his
reports that a lay person can understand. 7 	See Manso–Pizarro v.
Sec’y of Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996)
(explaining that generally, “an ALJ, as a lay person, is not
qualified to interpret raw data in a medical record” unless a
“commonsense judgment” can be made “without a physician’s
assessment”).
The ALJ’s decision to give little weight to Dr. Koester’s
opinion also withstands scrutiny, for multiple reasons. 	First,
the ALJ reasoned that there were no contemporaneous treatment
notes supporting either the diagnosis of mild cognitive
impairment or the administration of a test of intellectual
functioning cited in the opinion. Tr. 1370; see 20 C.F.R.
§ 416.927(c)(3) (“The more a medical source presents relevant
evidence to support a medical opinion, particularly medical
7 Timsina concedes that Dr. Kalfa, whose opinion was given “some
weight,” came to the same conclusion as the ALJ regarding Dr.
Dinan’s opinions. She argues that Dr. Dinan’s reliance on her
medical history distinguishes Dr. Dinan’s from Dr. Kalfa’s
assessment. However, this argument is unpersuasive because
Timsina does not explain how the inclusion of her medical
history explains the inconsistency in Dr. Dinan’s reports.
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signs and laboratory findings, the more weight we will give that
medical opinion.”).
Next, the ALJ reasoned that Dr. Koester’s opinion that
Timsina had a cognitive impairment that exempted her from the
naturalization testing requirements is inconsistent with other
evidence in the record. Tr. 1370; see 20 C.F.R § 416.927(c)(4)
(“Generally, the more consistent a medical opinion is with the
record as a whole, the more weight we will give to that medical
opinion”). Specifically, Timsina’s other medical providers
indicated that she did not qualify for this disability
exemption, and there was no evidence that her condition had
deteriorated in the interim. 	See Tr. 421, 424, 429, 432.
Lastly, the ALJ reasoned that Dr. Koester relied on
subjective information provided by Timsina and her family to
come to her medical conclusion. Tr. 1370. Reliance on
information provided by Timsina and her family is entitled to
less weight than medical signs and laboratory findings. See 20
C.F.R. § 416.927(c)(3). In sum, the ALJ’s explanations are
supported by the record and constitute good reasons for giving
Dr. Koester’s medical opinion little weight.
Timsina argues that the ALJ erroneously discussed Dr.
Dinan’s and Dr. Koester’s opinions in isolation, without
crediting their consistency with one another. But, as the
Commissioner points out, Timsina cites no authority for the
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proposition that the ALJ was required to consider the two
opinions together, as opposed to considering whether each is
consistent with the record as a whole. 	In fact, other courts
have rejected the same argument. 	See, e.g., Hornback v. Comm’r
of Soc. Sec., No. 16-CV-298, 2017 WL 1173476, at *4 n.3 (W.D.
Mich. Mar. 30, 2017); Hammer v. Comm’r of Soc. Sec., No. 13-
10176, 2014 WL 1328190, at *2 n.1 (E.D. Mich. Mar. 31, 2014).
Further, Timsina points to medical evidence provided by Dr.
Peter Loeser and David Kamen, PhD., in arguing that Dr. Dinan’s
and Dr. Koester’s opinions were consistent with the record. At
most, these additional medical opinions demonstrate that there
is conflicting evidence in the record. Resolving such conflicts
is for the ALJ, not for the courts. See Purdy, 887 F.3d at 13.8
IV. 	CONCLUSION
For the aforementioned reasons, Timsina’s motion for an
order reversing the Commissioner’s decision (Doc. No. 14) should
be denied, the Commissioner’s motion for an order affirming his
decision (Doc. No. 16) should be granted, and the clerk of the
court should be directed to enter judgment in favor of the
Commissioner and close the case.
8 Timsina also argues that greater limitations identified by Dr.
Dinan and Dr. Koester were not adequately considered and
resulted in a flawed RFC. This argument is unpersuasive because
the ALJ properly discounted the two opinions.
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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
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
August 17, 2020
cc: 	Karl E. Osterhout, Esq.
Daniel W. McKenna, Esq.
James S. Nagelberg, Esq.
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