UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey Johnson
v. Case No. 16-cv-375-PB Opinion No. 2017 DNH 214 Nancy A. Berryhill, Acting Commissioner of Social Security Administration
MEMORANDUM AND ORDER
Jeffrey Johnson challenges a decision by the Acting
Commissioner of the Social Security Administration (SSA) to deny
his claim for Social Security disability insurance (SSDI)
benefits. Johnson argues that the administrative law judge
(ALJ) made three errors when determining his residual functional
capacity (RFC): he failed to properly evaluate evidence of his
severe mental impairments, improperly weighed the opinions of
various medical providers, and failed to properly consider his
pain complaints. Johnson also argues that the ALJ incorrectly
relied on the opinion of a vocational rehabilitation expert in
determining that he was not disabled because the expert’s
opinion did not take account of Johnson’s severe mental
impairments. For the following reasons, I affirm the
Commissioner’s decision. I. BACKGROUND
Johnson is a 56 year-old male who worked as an ironworker
for most of his career. Doc. 12 at 2. He injured his shoulder
in 2008, and has not worked since. Doc. 12 at 2, 13. Tr. 71-
72. He alleges that he suffers from: “left knee problems,
anxiety, chronic pain, insomnia, depression, broken neck,
rotator cuff, right shoulder problems, broken knee/wrist/elbow,
and a history of three hernia operations.” Doc. 12 at 1.
Several of Johnson’s alleged impairments predate his 2008
injury. Doc. 12 at 5.1
Johnson appeals from a June 16, 2016 decision of the
Appeals Council denying his request to review an ALJ’s
determination that he is not disabled.
II. THE ALJ’S DECISION
The ALJ applied the five-step analysis required by 20
C.F.R. 404.1520 in analyzing Johnson’s claim. At step one, the
ALJ determined that Johnson was not engaged in substantial
1 In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts (Doc. No. 12). Because that joint statement is part of the court’s record, I only briefly discuss the facts here. I discuss further facts relevant to the disposition of this matter as necessary below.
2 gainful activity. Tr. 17.
At step two, the ALJ determined that Johnson had the
following physical impairments: “degenerative disc disease s/p
cervical fusion; residuals /p left wrist facture with open
reduction internal fixation; s/p arthroscopic surgery left knee;
s/p arthroscopic surgery right elbow; s/p right sided rotator
cuff repair; s/p right quadriceps muscle tear; s/p deep vein
thrombosis (right leg). . . .” Tr. 17. He also concluded that
Johnson suffered from “affective disorder” and “anxiety-related
disorders.” Tr. 17.
At step three, the ALJ determined that Johnson did not have
any of the impairments listed in 20 C.F.R., Subpart P, Appendix
1. Tr. 18. In determining that Johnson’s mental impairments
did not warrant a finding of disability, the ALJ found that
Johnson had “moderate difficulties” with regard to
“concentration, persistence, or pace” but that he did not
qualify as disabled at step three because his impairments “did
not cause at least two ‘marked’ limitations or one ‘marked’
limitation and ‘repeated’ episodes of decompensation, each of
extended duration.” Tr. 19- 21.
At step four, the ALJ determined that Johnson,
had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except he was able to lift and/or carry up to 20 pounds occasionally
3 and up to 10 pounds frequently; to stand and/or walk for up to 6 hours in an 8-hour workday; and to sit for more than 6 hours in an 8-hour workday. He had unlimited use of his hands and feet to push and/or pull. He was able to carry out short and simple instructions without special supervision; to maintain attention, concentration, persistence and pace throughout the normal 8-hour workday and 40 hour workweek; to interact appropriately with peers and supervisors; and to accommodate change.
Tr. 21-22. In making this determination, the ALJ noted that,
“the mental residual functional capacity assessment used at
steps 4 and 5 of the sequential evaluation process requires a
more detailed assessment [than the analysis at steps two and
three] by itemizing various functions contained in the broad
categories found in paragraph B of the adult mental disorders.”
Tr. 21. The ALJ noted, “[a]lthough adjudged to be ‘non-severe,’
all of the claimant’s above-noted medically determinable
impairments were taken into considered [sic] upon assessing his
residual functional capacity.” Tr. 18. The ALJ stated, “while
the claimant also alleges significant ongoing symptoms and
limitations related to anxiety and depression, a review of his
records likewise fails to reveal evidence of medically
documented findings and/or a treatment history consistent with
his allegations.” Tr. 27. After considering “the medical
evidence of record as a whole,” the ALJ found “that, while there
is evidence of record to support a finding that the claimant . .
4 . was credibly limited to the performance of simple tasks, there
is a lack of evidence to warrant any further reduction of his
mental residual functional capacity.” Tr. 27.
At step five, after considering the opinion of a vocational
expert based on a hypothetical question, the ALJ determined that
Johnson could work in a “light exertion” job, as a price marker,
housekeeper, or small products assembler. Tr. 34. The ALJ then
denied Johnson’s claim for SSDI. Tr. 34.
III. STANDARD OF REVIEW
I am authorized under 42 U.S.C. § 405(g) 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. That review is limited,
however, “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). I defer to the ALJ’s findings of fact, as 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)
5 (quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d
218, 222 (1st Cir. 1981)).
If the ALJ’s factual findings are supported by substantial
evidence, they are conclusive, even where the record “arguably
could support a different conclusion.” Id. at 770. If,
however, the ALJ “ignor[ed] evidence, misappl[ied] the law, or
judg[ed] matters entrusted to experts,” her findings are not
conclusive. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)
(per curiam). The ALJ determines issues of credibility and
draws inferences from evidence in the record. Irlanda Ortiz,
955 F.2d at 769. The ALJ, and not the court, must resolve
conflicts in the evidence. Id.
III. ANALYSIS
Johnson argues that the ALJ erred in determining his RFC by
failing to properly evaluate his severe mental impairments,
failing to give proper weight to the opinions of various
physicians, including his “treating source,” and failing to
properly consider Johnson’s pain complaints. Doc. 10-1 at 3.
Johnson also argues that the ALJ erred in relying on an opinion
of a vocational rehabilitation expert that he could perform
other work because the opinion failed to take account of
Johnson’s severe mental impairments. Doc. 10-1 at 5. The
6 Acting Commissioner responds by claiming that the ALJ’s rulings
were proper because the ALJ fully considered Johnson’s mental
impairments and pain complaints, properly weighed the opinions
of all of the physicians involved, and included all of his
functional limitations in the hypothetical question he posed to
the vocational expert.
A. Severe Mental Impairments
Johnson first challenges the ALJ’s determination that his
RFC allowed him to “carry out short and simple instructions
without special supervision; to maintain attention,
concentration, persistence, and pace throughout the course of a
normal 8-hour workday and 40-hour workweek; to interact
appropriately with peers and supervisors; and to accommodate
change.” Tr. 21-22.
In determining Johnson’s RFC, the ALJ noted that Dr.
Juliana Read had performed a psychological evaluation of Johnson
in which she determined that he had “concentration and memory
deficits,” along with major depressive disorder, post-traumatic
stress disorder, obsessive compulsive disorder, and alcohol
abuse. Tr. 18. Although the ALJ took account of Johnson’s
impairments, he nevertheless supportably determined that they
only slightly limited his RFC. Tr. 18. The record contains
ample evidence to support this determination. First, the ALJ
7 noted that while Johnson claimed he had “significant
difficulties during the period under review maintaining focus
and concentration and completing tasks,” Dr. Read opined that
Johnson was still “capable of maintaining attention,” able to
perform “simple tasks,” and “capable of interacting
appropriately and communicating effectively with others.” Tr.
20, 27, 29. Second, the ALJ noted that when Johnson underwent
an assessment at the Mental Health Center of Greater Manchester,
the assessor did not mention that he had impaired concentration.
Tr. 20-21. Third, the ALJ noted that Dr. Gus Emmick, Johnson’s
primary care physician, said that Johnson had “some mild
limitation in social functioning,” but “no limitation in his
ability to understand, remember and carry out instructions.”
Tr. 30. Fourth, the ALJ noted that Dr. Christopher Braga said
that Johnson had some symptoms of anxiety and depression, but
that his mental health symptoms were “fairly well controlled.”
Tr. 28. Fifth, the ALJ noted that Dr. Michael Schneider
determined that Johnson had “ongoing symptoms of anxiety and
depression,” but “was able to maintain adequate attention as
well as to understand, remember and carry out short and simple
instructions and to complete a normal workweek.” Tr. 32.
These references demonstrate that the ALJ considered the
opinions on Johnson’s mental limitations from each of the
8 physicians in the record, and weighed each according to the
opinion’s consistency with the evidence and the opportunity of
the doctor to evaluate Johnson. After weighing the various
opinions, the ALJ determined that Johnson’s medical history
“fails to reveal evidence of medically documented findings
and/or a treatment history consistent with such a high level of
anxiety or depression that the claimant would be unable to
maintain a schedule,” and that he has, “no limitation in his
ability to understand, remember, and carry out instructions.”
Tr. 32. Nevertheless, the ALJ took into account Johnson’s
mental limitations, by noting in the RFC that Johnson could
“carry out short and simple instructions without special
supervision.” Tr. 21-22. Given that the ALJ properly
considered and weighed all the relevant evidence, I do not
second-guess his conclusion. See Gonzalez-Garcia v. Sec’y of
Health & Human Servs., 835 F.2d 1, 3 (1st Cir. 1987).
The fact that the ALJ found that Johnson had two severe
mental impairments at step two and that he suffered from
moderate limitations in his ability to maintain concentration,
persistence, or pace at step three does not call his RFC
determination into question. See Tr. 17; see also McDonald v.
Sec’y of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir.
1986) (stating that the step-two inquiry is a “de minimis
9 policy, designed to do no more than screen out groundless
claims.”). Although an ALJ’s step-four determination of the
claimant’s RFC must take into account his mental and physical
limitations, it does not need to “translate severe impairments
into the RFC.” Duncan v. Colvin, No. CIV-15-1200, 2017 WL
1274392, at *3 (W.D. Ok. Feb. 17, 2017). Here, because the ALJ
considered Johnson’s mental impairments when formulating his
RFC, and included the limitation that he could only carry out
“short and simple instructions,” his RFC determination is not
inconsistent with his evaluation of Johnson’s mental impairments
at steps two and three. See id.
B. Weight of Medical Sources
Johnson next claims that the ALJ committed further error
when determining his RFC by giving too little weight to the
opinion of his “treating source,” Dr. Gus Emmick, and another
examining physician, Dr. Gerard Hevern, while giving too much
weight to the opinion of a non-examining physician, Dr. Burton
Nault.
1. Dr. Emmick
Johnson argues that the ALJ improperly discounted the
opinion of his “treating source,” Dr. Emmick, without giving
“good reasons” for doing so. The Acting Commissioner responds
by claiming that Dr. Emmick was not a “treating source” and,
10 even if he were, the ALJ had “good reasons” to discount his
opinion.
An ALJ must give a “treating source’s” opinion “controlling
weight” if that opinion is well-supported and consistent with
substantial evidence. 20 C.F.R. § 404.1527(c)(2); see Foley v.
Astrue, No. 09-10864, 2010 WL 2507773, *8 (D. Mass. June 17,
2010). Even if a treating source’s opinion does not satisfy
these requirements, “it may be ‘entitled to deference.’”
Douglas v. Colvin, 2016 DNH 176, 17 (quoting SSR 96–2p, 1996 WL
374188, at *4 (July 2, 1996)). Further, if the ALJ rejects the
opinion of a treating source, the ALJ must give “good reasons”
for his determination, which must be “both specific and
supportable.” Jenness v. Colvin, 2015 DNH 167, 15. If, on the
other hand, it is not possible to “determine whether the medical
opinion evidence was considered [by the ALJ] and implicitly
discredited or instead was simply overlooked,” I must remand.
Kenerson v. Astrue, 2011 DNH 074, 12 (internal quotations
omitted). As long as the ALJ satisfies this standard, I will
uphold his decision to discount a treating source’s opinion.
Costa v. Astrue, 565 F.Supp.2d 265, 271 (D. Mass. 2008).
Although I agree with Johnson that Dr. Emmick was a
“treating source,” I nevertheless conclude that the ALJ had
“good reasons” to give his opinion less than controlling weight
11 because it was contradicted by other evidence in the record,
including Johnson’s own testimony and the testimony of other
physicians. See Rodriguez, 819 F.2d at 3.
Dr. Emmick stated that Johnson could not stand for more
than two hours, could not lift more than ten pounds, and could
not stand or sit for long periods of time. Tr. 29. These
opinions, however, are contradicted by Johnson’s own testimony
during which he admitted that he could lift up to 25 pounds, use
his hands without limitation, and could bend, kneel, squat, and
climb stairs. Tr. 29-30; 294; 501-515. Johnson also testified
that he had tapered off or discontinued much of his treatment
for the injuries that Dr. Emmick had observed. Tr. 25-26, 664.
See Wilson v. Colvin, 2014 DNH 100, 26 (noting that an ALJ may
consider the absence of treatment for a particular injury as a
factor in determining whether the claimant’s allegations of
injury are credible).
The ALJ’s decision to discard Dr. Emmick’s opinions is also
supported by the opinions of other examining physicians. Dr.
Ralph Wolf examined Johnson in April, 2012, and found no issues
with Johnson’s spine. Tr. 17. Dr. Wolf also noted that Johnson
could sit and walk comfortably. Tr. 17. Dr. Gerard Hevern, who
also examined Johnson, noted that he could “do almost all the
tasks around the house.” Tr. 590. Finally, the ALJ found that
12 the record did not contain “medically documented objective
findings” to support Dr. Emmick’s opinions about Johnson’s
physical limitations. See Tr. 29-30. This evidence
collectively provides ample support for the ALJ’s decision to
discount Dr. Emmick’s opinions.
2. Dr. Hevern
Johnson also claims that the ALJ improperly discounted the
testimony of Dr. Hevern, who examined him in person. See Tr.
552-553. The Acting Commissioner argues that the ALJ applied
the factors required to evaluate the weight given to a medical
opinion of an individual who is not a “treating source,” and
properly discounted Dr. Hevern’s opinion because it was contrary
to other evidence in the record. See Berrios-Lopez v. Sec’y of
Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991).
When weighing the testimony of a physician who is not the
claimant’s “treating source,” an ALJ must consider the examining
relationship, treatment relationship (including length of the
treatment relationship, frequency of examination, and nature and
extent of the treatment relationship), supportability of the
opinion by evidence in the record, consistency with the medical
opinions of other physicians, whether the doctor is evaluating a
claimant in an area of the doctor’s expertise, and any other
relevant factor. 20 C.F.R. § 404.1527(c); see Berrios-Lopez,
13 951 F.2d at 431.
Here, the ALJ gave Dr. Hevern’s testimony “little weight”
because his opinion was unsupported by the evidence in the
record, inconsistent with the medical opinions of Dr. Nault, Dr.
Goodarzi, and Dr. Wolf, and inconsistent with Johnson’s own
testimony. Tr. 30. Dr. Hevern diagnosed Johnson with many of
the same physical ailments that the other doctors did – a
“severe right leg injury,” deep vein thrombosis in his right
leg, post-traumatic stress disorder, and “probable cognitive
impairment.” Tr. 573. He also believed, however, that these
symptoms would only limit Johnson by giving him a “decreased
range of motion of his right hip and right knee” and “decreased
range of motion of his right shoulder.” Tr. 573. Although the
ALJ credited these portions of his opinion which are consistent
with the other physicians’ opinions in the record, he
permissibly rejected Dr. Hevern’s conclusory opinion that
Johnson was “totally disabled,” because such an opinion is not a
medical opinion, but rather is a legal conclusion, which is left
to the ALJ to decide. See 20 C.F.R. § 404.1527(d)(1) (“A
statement by a medical source that you are ‘disabled’ or ‘unable
to work’ does not mean that we will determine that you are
disabled.”)
14 3. Dr. Nault
Johnson argues that the ALJ gave more weight than he should
have to the testimony of Dr. Burton Nault, who did not
physically examine Johnson at any point, but merely reviewed his
medical records. The Acting Commissioner argues that the ALJ
was entitled to give greater weight to the opinion of Dr. Nault,
a non-treating physician, because it was consistent with both
other medical evidence in the record and with Johnson’s own
testimony. See Berrios-Lopez, 951 F.2d at 431; Abubakar v.
Astrue, No. 11-cv-10456, 2012 WL 957623, at *11-*12 (D. Mass.
Mar. 21, 2012).
Dr. Nault opined that Johnson was unsuited for heavy labor
because he was limited in his ability to lift and carry objects.
Tr. 31-32. Dr. Nault noted, however, that Johnson was not
completely barred from physical labor and could perform “lifting
and carrying at up to the medium exertion level.” Tr. 31- 32.
The ALJ was entitled to rely on this opinion because it was
consistent with the medical testimony from Dr. Wolf, Dr.
Schneider, and Johnson’s own testimony. Tr. 17, 29-30, 294,
501-515, 590.
C. Pain Complaints
Johnson next argues that the ALJ failed to evaluate his
pain complaints using all of the factors listed in 20 C.F.R. §
15 404.1529, and instead only considered one of those factors: that
Johnson was not actively undergoing treatment for his physical
injuries. The Acting Commissioner responds by claiming that the
ALJ properly evaluated Johnson’s pain complaints by considering
them in light of his documented physical injuries, his treatment
history, and the activities in which he was able to continue to
participate.
The ALJ must consider the claimant’s pain complaints when
determining his RFC. 20 C.F.R. § 404.1529. However, the ALJ is
not required to accept the claimant’s assertion of pain
wholesale. Shaw v. Sec’y of Health & Human Servs., 1994 WL
251000, at *2 (D. Mass. June 9, 1994) (finding claimant’s
assertion of pain was unsupported by the other medical
evidence). Instead, when evaluating a claimant’s assertions of
pain, the ALJ must consider the claimant’s subjective symptoms
of pain, whether his daily activities are limited by the pain,
whether there are factors that make the pain worse or better,
whether the claimant is receiving treatment for the pain, and
whether the pain is consistent with the claimant’s other
objective medical evidence. 20 C.F.R. § 404.1529(c); see Avery
v. Secretary of Health & Human Servs., 797 F.2d. 19, 29 (1st
Cir. 1986).
Here, the ALJ evaluated Johnson’s level of pain by
16 considering a number of the factors set out in 20 C.F.R. §
404.1529(c). First, the ALJ noted that Johnson had not received
ongoing treatment for his back pain throughout the period of his
claimed disability. Tr. 17. See Irlanda Ortiz, 955 F.2d at
769. The ALJ also compared Johnson’s pain complaints with his
objectively-measurable underlying symptoms. The ALJ determined
that Johnson’s wrist injury had healed well, and only slightly
limited the use of his wrist. Tr. 17, 416. He next noted that
Johnson’s pain complaints were focused primarily on back pain
that resulted from an injury in 1992, but that his MRIs and
exams by Dr. Wolf showed no problems with his back or spine.
Tr. 17. He noted that Johnson could sit and walk normally. Tr.
17. Johnson himself reported that his pain was improving. Tr.
539. Dr. Heven testified that when Johnson was on the proper
medication, he could do all of his chores around the house. Tr.
25, 590.
Despite these indicators that Johnson’s pain was not too
severe, the ALJ noted that he nonetheless considered Johnson’s
pain complaints when formulating his RFC. Tr. 18 (noting that
he considered all of the claimant’s “non-severe” impairments,
including his statements of pain). Accordingly, the evidence in
the record, including evidence of Johnson’s pain, does not
undermine the ALJ’s determination that Johnson had an RFC
17 suitable for doing “light work.”
D. Vocational Expert
Johnson also argues that the ALJ erroneously based his
determination that Johnson was not disabled on a vocational
expert’s opinion about a hypothetical claimant who did not
possess the same severe mental impairments as he had. See Rose
v. Shalala, 34 F.3d 13, 19 (1st Cir. 1994).
“In order for a vocational expert’s testimony in response
to a hypothetical question to serve as substantial evidence in
support of the conclusion that the claimant can perform other
work, the question must accurately portray a claimant’s physical
and mental impairments.” Ealy v. Comm’r of Soc. Sec., 594 F.3d
504, 516 (6th Cir. 2010). Here, however, the ALJ’s hypothetical
included all of Johnson’s relevant mental impairments. Tr. 75-
76. See Arocho v. Sec’y of Health & Human Servs., 670 F.2d 374,
375 (1st Cir. 1982). The hypothetical included the limitation
that the claimant, “was able to carry out short and simple
instructions without special supervision; maintain attention,
concentration, persistence and pace for a normal eight-hour
workday and 40-hour workweek; able to interact appropriately
with peers and supervisors and accommodate change.” Tr. 76.
This comported with the ALJ’s RFC determination. Tr. 21-22.
Because the ALJ included the exact same mental limitations
18 from Johnson’s RFC in the hypothetical presented to the
vocational expert, the vocational expert’s opinion took into
consideration all of the relevant facts. Cohen v. Astrue, 851
F.Supp.2d 277, 284 (D. Mass. 2012). Therefore, the ALJ properly
relied upon the vocational expert’s opinion that Johnson could
perform certain jobs in the national economy.
IV. CONCLUSION
For the aforementioned reasons, I grant the Acting
Commissioner’s motion to affirm (Doc. No. 11) and deny Johnson’s
motion to reverse (Doc. No. 10). The clerk is directed to enter
judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
October 12, 2017
cc: Daniel W. McKenna, Esq. T. David Plourde, Esq.