Dillon v . SSA CV-11-328-PB 10/8/12
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael C . Dillon
v. Case N o . 11-cv-328-PB Opinion N o . 2012 DNH 179 Michael J. Astrue, Commissioner Social Security Administration
MEMORANDUM AND ORDER
Michael Dillon seeks judicial review of a decision by the
Commissioner of the Social Security Administration denying his
applications for disability insurance and Supplemental Security
Income benefits. He argues that I should either reverse the
Commissioner’s decision or remand the case for further
proceedings because the Administrative Law Judge (“ALJ”) erred
in weighing the medical evidence and concluding that Dillon was
not disabled. For the reasons provided below, I deny Dillon’s
request.
I. BACKGROUND1
Dillon applied for disability insurance and supplemental
security income benefits on April 2 2 , 2009. He alleged a
disability onset date of June 1 , 2003, due to post traumatic
1 The background information is taken from the parties’ Joint Statement of Material Facts. Citations to the Administrative Transcript are indicated by “Tr.”
1 stress disorder, anxiety, depression, osteoarthritis, stomach
problems, and asthma. T r . 1 1 . Dillon completed high school and
two years of college. He then earned a certificate from a sound
recording school and worked as a stage technician between 1989
and 2003. T r . 3 6 . Dillon also worked for about six weeks at a
gourmet pet treat company in 2003.
A. Procedural History
The Social Security Administration denied Dillon’s
application for benefits on September 2 9 , 2009. Following
denial, he requested a hearing before an ALJ, which occurred on
January 1 1 , 2011. Dillon was represented by counsel and
testified at the hearing. The ALJ issued an unfavorable
decision on January 2 8 , 2011. Dillon appealed to the Decision
Review Board, which affirmed the ALJ’s decision on May 2 , 2011.
B. Relevant Medical Evidence2
1. Treatment Summary, November 2004 – October 2006
Dillon first sought psychological treatment on November 2 2 ,
2004, at Bedford Counseling Associates. He complained of
anxiety and depression, which began when his mortgage company
attempted to foreclose on his home. He feared leaving his house
2 Because Dillon only challenges the ALJ’s assessment of his mental impairments, I need not address his physical work capacity. See Brun v . Shalala, N o . 93-320-B, 1994 WL 504305, *1 n.3 (D.N.H. July 2 9 , 1994) (citing Alan Corp. V . Int’l Surplus Lines, Inc., 22 F.3d 339, 343 n.4 (1st Cir. 1994)).
2 and was anxious that he was being recorded. He claimed that
anxiety and depression had prevented him from working since
2002. At the time, he was not interested in a psychiatric
evaluation to determine his need for antidepressants.
On January 1 0 , 2005, he reported struggling with loss of
motivation, low energy, and low self-esteem, but felt less
pressure regarding his legal problems. On February 7 , 2005, he
told his counselor that he was still uninterested in taking
antidepressants. D r . Elizabeth Blencowe assessed Dillon’s
global functioning at 5 5 , which indicates moderate symptoms or
moderate difficulty in social or occupational functioning. On
March 7 , 2005, he became tearful at his counseling session and
expressed feelings of helplessness and being overwhelmed. He
expressed some interest in psychiatric medication and agreed to
a medical consultation to explore the possibility of medication.
Tr. 221. He underwent an evaluation later that month, but again
refused antidepressants. Id. at 224. On March 2 4 , 2005, Dillon
expressed anger about the fees he was paying and refused to
discuss his problems.
Dillon was transferred to a new counselor, Jessica Capuano,
at the Mental Health Center of Greater Manchester on March 2 9 ,
2005. Id. at 213. At his meeting with M s . Capuano on March 2 9 ,
2005, Dillon appeared fully oriented, cooperative, pleasant,
coherent and logical upon examination, although he said that the
3 transfer had caused him stress. He showed no sign of suicidal
or homicidal ideation. M s . Capuano assessed his global
functioning at 6 5 , indicating that he had some mild symptoms or
some difficulty in social, occupational, or school functioning,
but was generally functioning well and had some meaningful
personal relationships.
On April 6, 2005, Dillon said he expected his stress levels
to increase because he faced another court appearance in May.
He was counseled on strategies for dealing with stress. He
requested and received anger management training. He expressed
feelings of helplessness regarding his mortgage issues, but
reported doing small jobs that kept him busy. On April 1 3 ,
Dillon said that his court date had been postponed and he was
keeping busy by helping to plan his brother’s wedding and
helping his mother with yard work. On April 2 0 , he expressed
feelings of helplessness, but said he was keeping busy with
small jobs. On May 2 4 , he said he had an appointment to meet
with D r . Blencowe about possibly beginning medication.
On June 1 4 , 2005, M s . Capuano noted that Dillon presented
as depressed and tearful. He reported sleep problems and blurry
thoughts. M s . Capuano noted that his mental state was
apparently related to the legal proceedings involving his home,
though he told her he felt optimistic about the upcoming
verdict. On June 2 0 , he told M s . Capuano that he planned to
4 start taking Zoloft again soon. T r . 196. On July 1 8 , 2005, he
told M s . Capuano that he had started taking Zoloft. Id. at 192.
On August 8 , 2005, Plaintiff reported feeling “stir crazy”
due to idleness because his legal problems had ebbed. T r . 188.
He was not sleeping well and had stopped using Zoloft. Id. On
August 1 9 , he reported increased anxiety and trouble sleeping
because of the mortgage litigation. Id. at 186. On August 3 0 ,
he felt less depressed because his litigation had ended. Id. at
184. He believed he would only need two more months of
treatment and discussed decreasing the frequency of his
sessions. Id. He reported having a positive, supportive
relationship with his girlfriend of nine years, despite feeling
generally antisocial. The counselor noted that Dillon’s mood
was even and his depression was decreasing; he even joked during
the session. Dillon said he was sleeping well and not
experiencing hallucinations. Id.
On September 1 4 , 2005, Dillon reported experiencing greater
distress because the litigation process had begun again. Id. at
182. By September 2 7 , 2005, he resumed taking Zoloft, and said
that it made him feel like he was “swimming through mud.” Id.
at 180. He requested sleep medication. Id. The counselor
reported his mood and affect as agitated. Id.
On October 4 , 2005, Dillon said his sleep medication helped
him sleep but made him feel lethargic in the morning. Id. at
5 178. He could not discern the effects of taking Lexapro
(another antidepressant), but had increased his work on
“projects and jobs.” Id. On October 2 5 , 2005, Dillon told his
therapist that Lexapro was “leveling him off” and that his
ability to sleep continued to improve. Id. at 176. He said he
was functioning better and was performing odd jobs, such as
landscaping. Dillon’s therapist reported that his mood, affect,
and functioning were appropriate and normal. She described his
thought processes as “future and goal oriented.” Id. On
November 1 , his therapist reported that he appeared less
anxious, smiled, and was more engaged in their conversation.
Id. at 164. On November 1 7 , Dillon said he felt less depressed,
though he was unsure whether his mood was due to medication or
the fact that stressors had declined. Id. at 163.
Dillon missed several subsequent therapy sessions and
stopped taking his medication. Id. at 174. He returned on
December 1 9 , 2005, and told his therapist that he felt stressed
about the approaching holidays and his mother’s illness. His
mortgage litigation had resumed, and he said tearfully that he
did not like or trust people. He said he was doing some odd
jobs for income. On December 2 1 , Dillon reported an increase in
stress because of his mother’s illness, but said he was doing
“okay” and appeared less anxious, despite his continuing legal
6 problems. There are no further medical records from The Mental
Health Center of Greater Manchester.
Dillon next visited a physician on October 2 6 , 2006 at the
Hooksett Medical Center. T r . 245. At the intake session, he
reported difficulty sleeping during high stress times. He
reported a history of depression and anxiety. The nurse noted
that Dillon presented as appropriately dressed, pleasant, and
able to carry on a conversation.
In his disability appeal, Dillon stated that he stopped
seeking mental health treatment at The Mental Health Center of
Greater Manchester after one year because he was no longer able
to afford appointments once a one-year payment deferral ended.
Tr. 145.
2. Evaluations by Karin Huffer, M.A., Ph.D
Dillon met with Karin Huffer for approximately four hours
in 2007. She completed reports in 2007, 2009, and 2010. 3 On
December 1 9 , 2007, D r . Huffer completed a “Report and Request
for Reasonable ADA Accommodations,” which was apparently
3 The record is unclear as to exactly when and how frequently D r . Huffer met with Dillon. D r . Huffer’s 2007 report is dated December 1 9 , 2007. T r . 250. Her 2009 report lists January 1 4 , 2007, as “Date First Seen” and April 2 4 , 2009 as “Date Last Seen.” T r . 248. She indicated in her 2010 report that the impairments she identified therein were first present in 2008. Id. at 323. Dillon testified that they met only once in 2007 when D r . Huffer was attending a conference in Albany, N Y . Id. 4 4 . Dillon indicated in an SSA report, however, that his first visit with Huffer was in the spring of 2007 and his last visit before the report was prepared was in March 2009. Id. at 125.
7 prepared to support Dillon’s request for accommodations in
connection with his mortgage litigation. In the 2007 report,
Dr. Huffer stated that Dillon presented with “anxiety,
depression, and traumatic stress” due to the “bureaucratic/legal
quagmire” involving efforts to foreclose on his home. T r . 254.
She wrote that he was “well oriented regarding time, place, and
person. He dresse[d] appropriately and present[ed] himself as a
quiet person but with clarity and cooperation.” He expressed no
suicidal or violent thoughts and “display[ed] at least an
average level of intelligence.” She observed that he “is strong
with tangible, factual matters.” She diagnosed him with PSTD
and depression and stated that his global functioning before
“injury” from legal abuse was 85-90 and after injury due to
stress from legal system was 55-60. Id. D r . Huffer did not
describe the basis for her conclusions.
Dr. Huffer completed a mental impairment questionnaire on
June 1 5 , 2009 following a mental status exam. She described
Dillon’s appearance as “slightly disheveled, fearful, anxious,
depressed.” His speech was “slowed,” and his mood was
“agitated, hypervigilent.” His affect was “surrendered,
fearful.” She reported that his thoughts were “clear but
distorted by flashbacks, traumatic memory.” He had “poor
concentration,” “good orientation,” and she found it “very
difficult to trigger memories of his victimization.” She wrote
8 that he had “basic independence” in daily activities, was “very
isolated” socially, could complete “simple chores,” and
characterized his stress reaction as “post traumatic stress
disorder.” The only description she gave of the “Treatment
Provided & Response to Treatment” was: “Protocols and attempted
help with traumatic litigation.”
On October 1 6 , 2010, D r . Huffer submitted a “Medical Source
Statement of Ability to Do Work-Related Activities (Mental)” to
the SSA. She noted that Dillon was mildly restricted in his
ability to understand, remember, and carry out simple
instructions, and in his ability to make judgments on simple
work-related decisions. T r . 322. She noted a marked
restriction in his ability to understand and remember complex
instructions, carry out complex instructions, and make judgments
about complex work-related decisions. Id. She described the
“factors (e.g., the particular medical signs, laboratory
findings, or other factors described above)” supporting her
assessment as follows: “When M r . Dillon is symptomatic his
impairments are marked to extreme; the legal pressure triggers
symptoms.” Id. She provided no further details.
Dr. Huffer further reported that Dillon was markedly
restricted in his ability to interact appropriately with the
public, supervisors, and co-workers, and to respond
appropriately to usual work situations and changes in a routine
9 work setting. Id. at 323. She listed the factors supporting
her assessment as “when symptomatic” without further
elaboration. Id. She stated that Dillon’s impairments affect
his “concentration, communication, energy,” but did not describe
how. Id. She described the factors supporting her assessment
as “Post Traumatic Stress Disorder and protracted litigation
following illegal foreclosure.” Id. She stated that she first
observed these limitations two years ago. Id.
Dr. Huffer had a Master’s degree in marriage and family
therapy when she prepared the 2007 and 2009 reports. Id. at
249, 250. By 2010, when she submitted the Medical Source
Statement, she had attained a Ph.D. in forensic psychology. Id.
at 321.
3. Evaluation by Darlene R. Gustavson, Psy.D.
On July 1 6 , 2009, D r . Darlene Gustavson, Psy.D., conducted
a consultative psychological evaluation of Dillon in connection
with his application for social security benefits. During her
personal examination of Dillon, he complained of having poor
short-term memory, difficulty concentrating, and difficulty
trusting or interacting well with other people. T r . 290. He
said that his PTSD symptoms began in 2004 when his mortgage
servicer attempted to illegally foreclose on his property. He
denied suicidal ideations. He said that his depression began in
2003 and was constant for two to three years. He described a
10 lack of motivation or energy, apathy, problems sleeping, minimal
appetite, feelings of hopelessness, helplessness, and
worthlessness, lack of interest in previously enjoyed
activities, social isolation, and increased irritability. Id.
at 291. He last worked regularly in 2006 and said he quit that
job because he did not like his employer. He started a handyman
business in 2006, but closed it in 2008. Id. He told D r .
Gustavson that he had no current health insurance or health care
providers. Id.
In writing her report, D r . Gustavson relied on her own
examination of Dillon as well as D r . Huffer’s 2009 Mental
Impairment Questionnaire; a June 2009 Adult Function Report; and
progress notes by Bedford Counseling and The Mental Health
Center of Greater Manchester from October 2004 to October 2005.
Tr. 292. She observed the following: Dillon appeared well-
groomed; he had normal speech and appropriate language
comprehension; “Mood was bright. Affect was labile. He laughed
and smiled at appropriate and inappropriate times during the
interview.” D r . Gustavson reported that his “[t]hought
processes were logical and directed. Thought content was
normal. . . . Judgment and insight were intact.” After
conducting a brief mental status examination using the Folstein
Mini Mental Status Exam, she concluded that his intellectual
11 functioning was at least average and that he had no apparent
memory or concentration problems.
Dillon told D r . Gustavson that on a typical day, he wakes
up around 9 or 10 am, “makes coffee, starts the computer, and
checks email and the website he has created related to the legal
issues, return[s] emails or phone calls, checks statistics
online and prepares for court dates.” T r . 292. In addition, he
completed chores around the house, cooked simple meals, attended
any scheduled appointments, and went to bed between 1:00 and
3:00 a.m., though he had trouble falling asleep. She concluded
that he requires no “assistance or direction to properly care
for personal affairs, do shopping, cook, use public
transportation, pay bills, maintain his residence, and care for
grooming and hygiene.” Id.
Dr. Gustavson concluded that Dillon is able to understand
and remember instructions; interact appropriately and
communicate effectively with family members, neighbors, friends,
his landlord, and fellow employees; sustain attention and
complete tasks; and tolerate stresses common to a work
environment which includes the ability to make decisions,
maintain attendance and schedule, and interact with supervisors.
She recommended mental health treatment. Id. at 293.
12 4. Evaluation by Michael Schneider, Psy.D.
On July 2 1 , 2009, D r . Schneider, a state agency
psychologist who reviewed D r . Gustavson’s report and the other
medical reports in the record, concluded that the evidence was
insufficient to show a severe mental impairment either on June
1 , 2003, the alleged date of onset, or September 3 0 , 2007, the
date last insured. T r . 307. He indicated that Dillon had no
limitations related to activities of daily living and had
experienced no episodes of decompensation. He concluded that
Dillon was mildly limited in maintaining social functioning and
maintaining concentration, persistence, or pace. Id. at 305.
C. Hearing Testimony
At the hearing on January 1 1 , 2011, Dillon testified that
he lives with his fiancée, who is disabled. He was self-
employed between 1989 and 2003 as a “freelance stagehand” in the
Boston area. T r . 3 7 . His work involved setting up and taking
down stages, including scenery and sound and lighting equipment.
The job required unloading trucks, climbing ladders, climbing
steel scaffolding, lifting heavy objects, and pushing heavy
objects. Dillon reported two problems with his back, including
herniated discs in the lumbar region, and “general, basic
arthritic conditions” in his knees. T r . 3 8 .
Dillon testified that he began working for a gourmet pet
treat company around 2003. He made pet treats by hand, but
13 stopped working there after about six weeks because of “a
difference of opinion with the owner of the company.” Tr. 39.
He stated that he experiences memory and short-term
concentration problems:
I’m constantly having to write notes to myself just to remind myself of things. I get sidetracked easily. In the middle of one task, I will suddenly start focusing on something completely different forgetting about what I was originally doing. Focus is just absolutely horrendous and has been for [sic] awhile.
Dillon testified that he began receiving mental health treatment
in 2004 because of “long-term litigation . . . [i]nvolving a
fraudulent foreclosure.” He testified that he was suicidal at
times and began crying at this point in the hearing. See Pl.’s
Br. (Doc. N o . 8 ) at 8 ; Def.’s B r . (Doc. N o . 13) at 9. Around
2005, his fiancée convinced him to seek treatment at Manchester
Mental Health.
Dillon testified that friends who were facing similar
foreclosure defense issues connected him with Karin Huffer. He
met her in 2007 in Albany, New York, where she was attending a
conference, and spoke with her for about four hours. He also
communicated with her via telephone and e-mail before and after
that meeting. Dillon testified that he was aware that she had
diagnosed him with PTSD and depression. When the judge asked
how PTSD and depression impact his day-to-day life, Dillon said,
I’ve essentially been stuck in a groundhog day episode for the last 10 years. My life hasn’t moved forward at all.
14 Getting out of bed in the morning is enough of a task and then after that, it all depends on what the day brings. It [PTSD and depression] certainly doesn’t help with day-to- day activities at all.
Dillon testified that he starts his day around 8:00 am, and has
been operating a website related to foreclosure defense for
about four years. He said that he checks e-mails from
homeowners, attorneys, the media, or others who contact him. He
spends his day responding to these inquiries and stops anywhere
between midnight and 3:00 am.
Dillon said that he does not sleep well, never more than
six hours in a night. He sometimes is awake for 24 hours. In
the last few weeks, he had been “getting violent” during sleep,
including throwing punches, one time almost striking his fiancée
while she slept. T r . 4 5 .
Dillon claimed that he does not get along very well with
other people. He said he does not generally like or trust other
people and that he has “a tendency to get along better with
animals.” He testified that he has “a low tolerance for what I
perceive to be ignorance or stupidity,” and he does not cope
well when he meets people he considers ignorant. Dillon
testified that he was agoraphobic for a period of time, and
leaving the house to grocery shop was difficult for him. He
feared that his mortgage servicer would either change the locks
on his house or possibly burn down the property. He claimed
15 that there were documented examples of such things happening to
other people. He now does the grocery shopping for his
household. He and his fiancée both cook meals.
Dillon said that he was last in touch with D r . Huffer about
six or eight months prior to the hearing regarding litigation
involving a car accident. T r . 4 6 . He has not received any
medical care other than through the Mental Health Center of
Greater Manchester and D r . Huffer. He testified that he took
antidepressants in the past but was not taking any medication at
the time of the hearing.
D. ALJ’s Decision
The ALJ denied Dillon’s application in a decision dated
January 2 7 , 2011, finding that the “claimant has not been under
a disability within the meaning of the Social Security Act.”
Tr. 1 1 . After determining that Dillon had not engaged in
substantial gainful activity since June 1 , 2003, the alleged
onset date of disability, he found that Dillon had a number of
physical and mental impairments that were severe but did not
reach listing level. Id. at 1 5 .
The ALJ gave significant weight to D r . Gustavson’s findings
and opinion because D r . Gustavson is experienced in evaluating
disability claims, personally examined Dillon, prepared a
thorough and detailed report based on that examination, and
issued an opinion that is consistent with other medical evidence
16 in the record, including the opinion of D r . Schneider. T r . at
25. The ALJ gave D r . Schneider’s opinion only limited weight
because he indicated that Dillon’s mental impairments are not
severe, a finding that conflicted with other record evidence,
and because he reported having insufficient evidence to render
an opinion regarding Dillon’s mental RFC. Id.
To the extent that D r . Huffer provided contradictory
evidence, the ALJ declined to give it substantial weight for
several reasons. Id. First, her 2007 report related to
Dillon’s petition to the United States District Court for
accommodations under the Americans with Disabilities Act and not
his functional capacity for work. Id. The standard to obtain
ADA accommodations is different from the standard governing the
SSA’s determination of disability. Id. Second, the 2007 report
contains generalities about PTSD and Legal Abuse Syndrome that
Dr. Huffer did not specifically attribute to Dillon. Id.
Third, the ALJ found that when D r . Huffer wrote the 2007 and
2009 reports, she was not an “acceptable medical source.” Id.;
see 20 C.F.R. § 404.1513(a). Additionally, D r . Huffer failed to
state any objective medical signs, laboratory results, or other
factors supporting her conclusions. T r . at 2 4 . Finally, D r .
Huffer’s opinion contradicted those of Drs. Gustavson and
Schneider, which were more in accord with each other. Id. at
25. The ALJ did adopt D r . Huffer’s assessment that Dillon could
17 only perform work involving unskilled, simple decisions and
could be expected to understand, remember, and carry out simple
work-related tasks because that opinion was more consistent with
the findings of Drs. Gustavson and Schneider. Id.
The ALJ found that although Dillon is unable to perform his
past relevant work as a stagehand, he has the residual
functional capacity to perform the full range of unskilled,
light work, involving understanding, remembering, and carrying
out simple work-related tasks. The Decision Review Board
reviewed the case and affirmed the ALJ’s decision on May 2 ,
2011.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
or reversing the “final decision” of the Commissioner. My
review is limited to determining whether the ALJ used “the
proper legal standards and found facts [based] upon the proper
quantum of evidence.” Ward v . Comm’r of Soc. Sec., 211 F.3d
652, 655 (1st Cir. 2000).
The findings of fact made by the ALJ are accorded deference
as long as they are supported by substantial evidence. Id.
Substantial evidence to support factual findings exists “‘if a
18 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 2 1 8 , 222 (1st Cir. 1981)). If
the substantial evidence standard is met, factual findings are
conclusive even if the record “arguably could support a
different conclusion.” Id. at 770.
Findings are not conclusive, however, if they are derived
by “ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v . Chater, 172 F.3d 3 1 , 35 (1st
Cir. 1999). The ALJ is responsible for determining issues of
credibility and for drawing inferences from evidence on the
record. Ortiz, 955 F.2d at 769. It is the role of the ALJ, not
the court, to resolve conflicts in the evidence. Id.
The ALJ follows a five-step sequential analysis for
determining whether an applicant is disabled. 20 C.F.R. §
404.1520; 20 C.F.R. § 416.920. In the context of a claim for
social security benefits, disability is defined as “the
inability to do any substantial gainful activity by reason of
any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 20 C.F .R. §§ 404.1505(a). The applicant bears the
19 burden, through the first four steps, of proving that his
impairments preclude him from working. Freeman v . Barnhart, 274
F.3d 606, 608 (1st Cir. 2001). At the fifth step, the ALJ
determines whether work that the claimant can d o , despite his
impairments, exists in significant numbers in the national
economy and must produce substantial evidence to support that
finding. Seavey v . Barnhart, 276 F.3d 1 , 5 (1st Cir. 2001).
III. ANALYSIS
Dillon moves to reverse or remand the ALJ’s decision to
deny his disability claim on the ground that substantial
evidence does not support the ALJ’s decision that Dillon’s
mental impairments were not disabling.4 Dillon first argues that
the ALJ gave too little weight to D r . Huffer’s evaluations. He
next argues that the ALJ erred in relying on Drs. Gustavson’s
and Schneider’s reports because they lacked access to D r .
4 Dillon did not challenge the ALJ’s findings regarding his physical impairments. I decline to address the merits of a claim that the plaintiff either fails to raise or raises in a perfunctory manner. See Bergeron v . Astrue, N o . 11-cv-395, 2012 WL 2061700, at *1 n.2 (D.N.H June 7 , 2012) (declining to review the claimant’s mental health treatment records and evaluations because she only challenged the ALJ’s physical RFC determination); Brun v . Shalala, N o . CIV. 93-320-B, 1994 WL 504305, at *1 n.3 (D.N.H. July 2 9 , 1994) (declining to speculate on the merits of an undeveloped claim) (citing Alan Corp. v . Int’l Surplus Lines, Inc., 22 F.3d 339, 343 n.4) (“We have often warned parties that issues raised in a perfunctory manner unaccompanied by some effort at developed argumentation, may be deemed waived.”).
20 Huffer’s 2010 report. I disagree and conclude that substantial
evidence supports the ALJ’s findings.
A. The ALJ’s Treatment of the Medical Evidence
When determining a claimant’s eligibility for disability
benefits, an ALJ must consider all medical opinions in the case
record. 20 C.F.R. § 404.1527(b). To the extent that there are
conflicts of evidence, the agency, not the court, must resolve
them. Irlanda, 955 F.2d at 769. Generally, if there is a
treating physician, the ALJ must give his opinion controlling
weight. Leahy v . Raytheon Co., 315 F.3d 1 1 , 20 (1st Cir. 2002).
The agency will not consider a medical source to be a claimant’s
treating source, however, if the relationship is based solely on
the claimant’s need to obtain a report to support a disability
claim. 42 USCA APP., 20 CFR § 404.1502. Here, Dillon does not
argue that D r . Huffer was a treating physician, nor does the
record support that conclusion.5
There are several reasons why the ALJ’s decision to give
limited weight to D r . Huffer’s opinions is supported by
5 D r . Huffer prepared an evaluation in 2007 in support of Dillon’s request for ADA accommodations in his mortgage litigation. She also provided reports in 2009 and 2010 specifically for his social security case. She did not produce any treatment records or evidence of an ongoing treatment relationship with Dillon. Because all three of D r . Huffer’s reports were produced in support of litigation, and two were produced in support of Dillon’s disability claim, substantial evidence supports the ALJ’s decision to consider D r . Huffer a non-treating source.
21 substantial evidence. First, her opinions are to some extent
inconsistent with Dillon’s complaints and activity level. In
2007, she diagnosed Dillon with PTSD and Legal Abuse Syndrome
and concluded that his condition is “disabling.” T r . 241. She
stated that Dillon is “living a life of daily terror” and
“suffers from debilitating depression and a sense of losing his
memory, even his will to live.” Id. at 250. In contrast, the
record shows that Dillon makes household repairs and does yard
work. Id. at 1 6 . He reported engaging in odd jobs, “projects,”
landscaping, and carpentry. Id. at 2 2 . He takes care of a pet
cat and manages checking and savings accounts. Id. He is able
to care for his personal affairs, including shopping, cooking,
and attending to grooming and hygiene. He stated that he has
“no real desire to interact with others,” suggesting that he
prefers social isolation, and his mental health impairments are
not the cause of his lack of friends. Id. D r . Huffer also
stated in 2010 that Dillon’s ability to interact with the
public, supervisors, and co-workers is markedly impaired. Id.
at 323. His testimony that he interacts with homeowners,
members of the media, and lawyers, and manages a foreclosure
defense website contradicts those findings. Id. at 16-17.
Dr. Huffer’s opinions also contradict other medical
evidence in the record. Dillon’s mental health impairments have
essentially gone untreated, with the exception of the counseling
22 and medication he received from Bedford Counseling Associates
and The Manchester Center for Mental Health. Id. at 2 1 . Those
counseling sessions focused on Dillon’s legal, financial, and
employment problems. Id. Throughout his treatment, he engaged
in odd jobs to earn income, suggesting he was able to work. Id.
Additionally, various treatment notes from 2004 and 2005 state
that Dillon was future-oriented, alert, pleasant, and coherent.
Id. at 2 2 . He reported his condition as “improved” in June
2005, and in August 2005 he said that he was coming out of his
depression and would likely need only two more months of
counseling. Id. The ALJ reasonably concluded that Dillon’s
failure to seek further treatment or continue taking medication
suggests that his symptoms are not disabling. Id. at 2 1 .
In addition, D r . Huffer’s conclusions conflict with D r .
Gustavson’s assessment of Dillon’s mental health impairments,
which she based on her examination of him and review of
treatment notes from his counseling sessions. D r . Gustavson
found that Dillon is able to understand and remember
instructions and tolerate common work environment stresses,
including making decisions, maintaining attendance and schedule,
and interacting with supervisors. Id. at 1 7 . She indicated
that his fine and gross motor skills appeared intact, and his
speech and language compression were normal. She observed that
he was frustrated, irritable, had poor concentration and memory
23 and difficulty getting along with others, id. at 2 2 , but that
his mood was bright and his attitude cooperative. Id. at 1 7 .
She found that his thought processes were logical and directed,
thought content was normal, and his judgment and insight were
intact. Id. The ALJ reasonably gave D r . Huffer’s opinions
limited weight because they conflicted with Dillon’s own
testimony, his activity level, and other medical evidence in the
record.
Dr. Huffer’s conclusions also conflict with her own
descriptions of Dillon’s abilities and appearance. The record
does not include any treatment notes from D r . Huffer, but her
2007 and 2009 reports provide details about her observations of
Dillon. She stated that he “is well oriented regarding time,
place, and person. He dresses appropriately and presents
himself as a quiet person but with clarity and cooperation. . .
. He displays at least an average level of intelligence. . . .
Mr. Dillon is strong with tangible, factual matters.” Id. at
254. She also indicated that he has “basic independence” and is
capable of doing simple chores. Id. at 249. These observations
do not comport with her conclusion that he is living a life of
terror, suffering from debilitating depression, and losing his
will to live. Id. at 250.
Dr. Huffer also failed to support her opinions with medical
testing or records or even specific details of the basis of her
24 findings. The perfunctory nature of her opinions supports
giving D r . Huffer’s opinions limited weight. In contrast, D r .
Gustavson supported her conclusion that Dillon was only mildly
impaired with objective medical evidence, including the Folstein
Mini Mental Status Exam. Id. at 292. D r . Huffer did not
describe any specific medical signs or laboratory findings that
support her 2010 conclusion that Dillon is markedly limited in
his mental functioning. Id. at 2 4 . Because she failed to
provide objective, clinical support for her conclusions, the ALJ
properly found that D r . Huffer’s opinions merit less weight than
Dr. Gustavson’s opinion.
The frequency of examination and nature and extent of the
treatment relationship between D r . Huffer and Dillon also
support giving D r . Huffer’s opinion limited weight. The record
shows that D r . Huffer and Dillon met in person only once in
Albany, N Y , where D r . Huffer was attending a conference. Except
for that meeting, Dillon and D r . Huffer communicated exclusively
by e-mail and telephone. There is no evidence that D r . Huffer
provided counseling or referred Dillon to a physician who could
prescribe medication. Dillon testified that his last contact
with D r . Huffer was six or eight months prior to the hearing,
and the purpose of that contact was to discuss litigation
relating to a car accident in 2006, not his mental health or
even his social security case generally. In fact, the record
25 lacks any description of the substance of Dillon’s discussions
with D r . Huffer. D r . Huffer provided no explanation of
diagnostic tests or examinations she conducted of Dillon.
Considering the limited nature and extent of Dillon’s
relationship with D r . Huffer, the ALJ reasonably declined to
give D r . Huffer’s opinions substantial weight.
It is the ALJ’s prerogative, not that of the court’s, to
weigh the evidence before him. Libby, 473 F. App'x at 8 , 9.
“We must uphold the Secretary's findings ... if a reasonable
mind, reviewing the evidence in the record as a whole, could
accept it as adequate to support his conclusion.” Rodriguez, 647
F.2d at 222. Where, as here, the ALJ has supported his findings
with substantial record evidence, I defer to the ALJ’s
determination. Wenzel v . Astrue, Civil N o . 11-cv-269, 2012 WL
2679456, at *6 (July 6, 2012) (citing Frustaglia, 829 F.2d at
195).
B. Lack of access to Huffer’s 2010 report
Dillon next argues that the ALJ should not have relied on
the opinions of Drs. Gustavson and Schneider because they were
unaware of the “specialized treatment” that D r . Huffer provided
him. Pl.’s B r . (Doc. N o . 8 ) at 1 0 . Presumably, Dillon is
referring only to D r . Huffer’s 2010 report, since both Drs.
Gustavson and Schneider referenced D r . Huffer’s 2007 and 2009
reports in assessing Dillon’s mental health. T r . 2 9 2 , 307. An
26 ALJ can give significant weight to a consulting physician’s
opinion, even if the consulting physician lacks access to some
available medical evidence. Berrios Lopez v . Sec’y of Health &
Human Servs., 951 F.2d 4 2 7 , 431 (1st Cir. 1991) (affirming the
ALJ’s denial of benefits, which was based on the reports of two
non-examining physicians who had access to “most, although not
all, of the medical evidence”). Here, D r . Gustavson personally
examined Dillon and reviewed all of the additional evidence
available at the time of the exam. In fact, both Drs. Gustavson
and Schneider explicitly took note of D r . Huffer’s 2009 report,
to which her 2007 report was appended, in their own reports.
Tr. 2 9 2 , 307. Although D r . Huffer completed a mental source
statement in 2010, subsequent to Drs. Gustavson’s and
Schneider’s reports, D r . Huffer neither examined Dillon nor
provided him with treatment before completing that report. Even
if she had, the ALJ could properly rely on the opinions of Drs.
Gustavson and Schneider. See Berrios Lopez, 951 F.2d at 431.
Substantial evidence supports the ALJ’s decision to rely on Drs.
Gustavson’s and Schneider’s medical opinions.6
6 Dillon also briefly argues that the ALJ erred in finding that he was “completely appropriate and articulate during the hearing” because Dillon “broke down and cried when discussing his ailments.” Pl.’s B r . (Doc. N o . 8 ) at 8 . In fact, the only time Dillon expressed distress was when he recounted details relating to the onset of his mortgage foreclosure problems. The ALJ reasonably concluded that Dillon reacted appropriately. An ALJ’s observations of a claimant and determinations of his
27 IV. CONCLUSION
For the foregoing reasons, Dillon’s motion to reverse or
remand the decision of the Commissioner (Doc. N o . 8 ) is denied.
The Commissioner’s motion to affirm (Doc. N o . 13) is granted.
The clerk shall enter judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
October 9, 2012
cc: John A . Wolkowski, Esq. Gretchen Leah Witt, AUSA
credibility are entitled to deference. Frustaglia v . Sec’y of Health & Human Servs., 829 F.2d 1 9 2 , 195 (1st Cir. 1987). Substantial evidence exists to support the ALJ’s finding that Dillon was appropriate and articulate at his hearing.