UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Cathy Stoumen Johnson
v. Civil No. 13-cv-525-JL Opinion No. 2015 DNH 051 Commissioner, Social Security Administration
ORDER ON APPEAL
Cathy Stoumen Johnson has appealed the Social Security
Administration’s denial of her application for a period of
disability and disability insurance benefits. An administrative
law judge at the SSA (“ALJ”) ruled that, despite Johnson’s severe
impairments (major depressive disorder and generalized anxiety
disorder), she retains the residual functional capacity (“RFC”)
to perform jobs that exist in significant numbers in the national
economy, and, as a result, is not disabled. See 20 C.F.R.
§ 404.1505(a). The Appeals Council later denied Johnson’s
request for review, see id. § 404.968(a), with the result that
the ALJ’s decision became the final decision on Johnson’s
application, see id. § 404.981. Johnson then appealed the
decision to this court, which has jurisdiction under 42 U.S.C.
§ 405(g) (Social Security).
Johnson has filed a motion to reverse the decision. See
L.R. 9.1(b)(1). She argues that, in ruling that she was not
disabled, the ALJ improperly discounted the opinions of her treating physicians in favor of those of non-treating sources.
As a result, Johnson maintains, the ALJ erroneously found neither
that Johnson suffered from a listed impairment--which would have
led to a finding that she was disabled without regard to her RFC,
20 C.F.R. § 404.1520(d)--nor that she lacked the RFC to perform
jobs existing in significant numbers in the national economy, id.
at 404.1505(a). The Acting Commissioner of the SSA has cross-
moved for an order affirming the ALJ’s decision, see L.R. 9.1(d),
defending the ALJ’s handling of the opinion evidence. As
explained fully below, the court agrees with the Commissioner,
and therefore grants her motion to affirm (and denies Johnson’s
motion to reverse) the decision.
Treating source opinions
Johnson claims that the ALJ erred by giving only limited
weight to the opinions of three of her treating doctors: Dr.
Dominic Candido, her pyschologist; Dr. Adam Schwarz, her primary
care physician; and Dr. Danielle Dahle, her psychiatrist. As
Johnson points out, an ALJ must give controlling weight to the
opinions of a treating physician “[i]f [the ALJ] find[s] that a
treating source’s opinion on the issue(s) of the nature and the
severity of [the claimant’s] impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
2 evidence in [his] case record.” 20 C.F.R. § 404.1527(c)(2). In
declining to give controlling weight to the opinions of Drs.
Candido, Dahle, or Schwarz, the ALJ found these opinions “neither
consistent with nor supported by the evidence of record,
including the treating source’s own treatment notes.” Johnson
argues that this finding lacks substantial evidence to support it
as to any of the doctors in question. The court disagrees.
Dr. Candido. As the ALJ noted, Candido opined that Johnson
“had severe limitations in attention and concentration” as well
as that her “symptoms preclude occupational functioning due to
her difficulty with sustained mental effort, novel tasks, and
high demands.” Candido had expressed these opinions on an
“Attending Physician’s Statement of Disability” form he had
completed for submission to an insurance company in late April
2012. He also indicated on the form that Johnson had “no
ability” to do a number of other things, including “perform
repetitive or short-cycle work,” “work alone or apart in physical
isolation from others,” “perform effectively under stress,” or
“deal with people,” as well as “minimal ability to perform a
variety of duties[,] work under specific instructions, or
demonstrate reliability and consistency.”
In giving Candido’s opinions “little weight,” the ALJ
pointed out that his “notes show that [Johnson] at times had
clear or remarkably clear mental status”--the ALJ elaborated
3 elsewhere in the opinion that “many of Dr. Candido’s notes are
illegible, but those that are legible reflect clear or remarkably
clear mental status, as well as reports of improved mood.” The
ALJ also observed that, on the very same form on which Candido
had indicated his opinions as to Johnson’s severe limitations, he
had also noted that her “panic was less intense and less
frequent, her dissociative states were fewer in number, and her
mood was less depressed” (though her “concentration and memory
remained problematic”). The ALJ also relied on Johnson’s “own
report that she can complete simple tasks of two to three steps,”
as she stated on the “Function Report” she submitted to the SSA
in support of her application.
In attacking the ALJ’s handling of Candido’s opinions,
Johnson complains that “the ALJ indifferently dismisse[d] the
treatment notes as illegible,” rather than “[c]ontacting
[Candido] and asking for clarification.” But Johnson had been
represented by counsel for nearly a year by the time of the
hearing before the ALJ, so her attorney, by all rights, should
have been the one ensuring that the medical records he presented
in support of his client’s claim were legible. See Faria v.
Comm’r of Soc. Sec., 187 F.3d 621 (table), 1998 WL 1085810, at *1
(1st Cir. Oct. 2, 1998).
Offering her own interpretation of certain of Candido’s
notes in her motion, Johnson also argues that they in fact
4 contain “frequent notations” at odds with the ALJ’s observation
that they reflect favorably on her mental status. But, however
accurately Johnson may have deciphered the notes, the joint
statement of material facts--which Johnson, through counsel,
agreed to as “all facts pertinent to the resolution of the case,”
L.R. 9.3(d)--contains no support for her interpretation. To the
contrary, the statement describes Candido’s treatment notes as
“largely illegible,” and, aside from describing the note of
Johnson’s initial visit with Candido as documenting a “report of
panic,” says nothing further about them but that they “document
treatment approximately bi-weekly to twice weekly.”
On this record, the ALJ did not err in finding that what
Johnson admits are Candido’s “largely illegible” notes failed to
support his opinions as to her severe limitations--nor, for that
matter, in declining to do what Johnson’s counsel, both before
the ALJ and on appeal to this court, likewise declined to do.1
See Carrion v. Colvin, 2014 DNH 174, 7-8.
1 Johnson also remarks that “the ALJ was (with all due respect, miraculously) able to read the portions of the notes he could take in the light least favorable to her,” but “was apparently unable to read” the notations that allegedly support Johnson’s disability claim. Again, Johnson’s counsel also did not endeavor to read Candido’s treatment notes, at least not when preparing the joint statement of facts, but, in any event, the note on which the ALJ specifically relied in rejecting Candido’s opinions was an entry on the insurance form, which was printed in block lettering. That the ALJ could read that but not what Johnson herself calls the “largely illegible” cursive handwriting from Candido’s treatment notes is hardly “miraculous.”
5 Johnson also argues that, even though (as just referenced)
she “met twice a week with [Candido] dating back to February
2011,” any “[c]onsideration or even mention of this longstanding
treatment relationship is missing from the ALJ’s analysis”
(italicization omitted). It is true that SSA regulations direct
an ALJ, in weighing the opinion of a treating source, to
consider--among several other factors--the “[l]ength of the
treatment relationship and the frequency of the examination.” 20
C.F.R. § 404.1527(c)(2)(i). As this court has observed, though,
§ 404.1527(c) “lists factors for the ALJ to consider in deciding
how much weight to give any medical opinion, [but] it stops short
of ‘requiring an ALJ’s decision to expressly apply each of the
six relevant factors.’” Chapin v. Astrue, 2012 DNH 177, 9
(quoting Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)).
Instead, the rule simply requires the ALJ to “give good reasons
in . . . [his or her] decision for the weight [he or she] gives
[a] treating source’s opinion.” 20 C.F.R. § 404.1527(c)(2).
Notwithstanding its omission of any reference to the length
or intensity of Candido’s treating relationship with Johnson, the
ALJ’s decision gave the requisite “good reasons” for giving
Candido’s opinions little weight. In addition to the fact that
those opinions found little if any legible support in Candido’s
records, the ALJ also expressly relied on the conflict, noted
supra, between Johnson’s statement in the Function Report that
6 she could “complete simple tasks of two to three steps” and
Candido’s view that Johnson’s “severe limitations in attention
and concentration” left her with “no ability” to do even
“repetitive or short-cycle work.” Johnson’s motion to reverse
does not address this conflict, which the ALJ was free to take
into account in evaluating Candido’s opinions. See Scanlon v.
Astrue, 2013 DNH 088, 17-18 (“[i]n assessing whether a treating
source’s opinion is consistent with the record, an ALJ is of
course free to consider the claimant’s contrary statements”).
The ALJ’s decision to give Candido’s opinion little weight was
both sufficiently explained and sufficiently supported.
Drs. Dahle and Schwarz. Dahle, a psychiatrist who saw
Johnson once in July 2011 and three more times between January
and July 2012, completed two forms in July 2012 indicating that,
due to her depression and anxiety, she suffered from a number of
limitations. Among other things, Dahle opined that, due to her
depression, Johnson had “moderate difficulties in social
functioning and maintaining concentration, persistence or pace,”
and that due to her anxiety, she faced “moderate restriction of
activities of daily living” and “marked difficulties in
maintaining social functioning, persistence, or pace.”
In August 2012, Schwarz, Johnson’s primary care physician,
completed the same “Depression” and “Anxiety” questionnaires as
Dahle, indicating even more serious findings. Schwarz opined
7 that, due to Johnson’s depression, she faced “marked difficulties
in social functioning and maintaining concentration, persistence
or pace” and that, due to Johnson’s anxiety, she faced “marked
restriction of activities of daily living and marked difficulties
in concentration, persistence, or pace.”2
The ALJ found that, while Dahle’s “opinion regarding
[Johnson’s] depression and its impact on her ability to function
is largely consistent with [Dahle’s] own treatment notes and with
the remainder of the evidence of record,” her “opinion regarding
[Johnson’s] anxiety is, however, not given significant weight as
it is not consistent with the evidence of record.” The ALJ
observed that Dahle’s view of Johnson’s anxiety-related
limitations was inconsistent with Dahle’s treatment notes, which
“show that [Johnson] presented with intact attention,
2 Both Dahle and Schwarz also opined that Johnson faced “repeated episodes of decompensation” and that “even a minimal increase in mental demands or change in environment would cause [Johnson] to decompensate”--and, further, identified a “current history of one or more years’ inability to function outside a highly supportive living environment with an indication of continued need for such arrangement.” But Johnson, in her motion to reverse, does not argue that the ALJ should have credited these opinions, so the court need not address them. In any event, they lack support in the record--which, as the Commissioner points out, reveals but one episode of decompensation and no inability to function outside a “highly supportive living arrangement” (such as an inpatient facility). It is worth noting, however, that these doctors’ willingness to indicate limitations so drastic that Johnson herself has not seen fit to defend them in court does not speak particularly well of the credibility of their other opinions.
8 concentration, and memory.” The ALJ also expressly relied on
Johnson’s own “reported level of functioning.”
As to Schwarz’s opinions, the ALJ likewise gave them
“limited weight as [they are] not supported by or consistent with
the evidence of record.” The ALJ explained that Schwarz’s
“opinion of the impact depression has upon [Johnson’s]
functioning . . . is not consistent with his own treatment
notes,” which “indicate that [she] did not present with any signs
or symptoms of depression.” The ALJ further explained that
Schwarz’s notes “describe [Johnson’s] anxiety as mild to moderate
in intensity. This is not consistent with his opinion of
moderate to marked functional limitations, or an inability to
function adequately outside the home.” Finally, as he had in
giving little weight to Dahle’s opinions of Johnson’s anxiety-
related limitations, the ALJ observed again that Johnson “engages
in a wide range of activities, both in and out of the home.”
In challenging the ALJ’s handling of Dahle’s and Schwarz’s
opinions, Johnson disputes his characterizations of their
treatment notes, pointing to observations of tearfulness and
similar symptoms, an anxious mood, or merely “fair” insight.
Despite these entries, the court believes that the ALJ
supportably found that, as a whole, Dahle’s and Schwarz’s notes
do not support their opinions that Johnson suffered from
9 moderate or marked restriction of activities of daily living and
marked difficulties in maintaining social functioning,
persistence, or pace.
In any event, in discounting those opinions, the ALJ also
relied on Johnson’s “reported level of functioning,” which
included “a wide range of activities, both in and out of the
home.” As the ALJ found, Johnson described her own activities as
regularly preparing vegetarian meals from scratch (taking up to
two hours per day), cleaning the house daily “without
encouragement or help,” walking or swimming for exercise every
day, running multiple errands in one trip “without any reported
difficulty,” and “an active social life that involves physical
activities” including kayaking and tennis with friends.
Johnson’s motion to reverse does not question the ALJ’s
characterization of any of her reported activities. Nor, more
importantly, does Johnson’s motion address the rather stark
conflict between Dahle’s and Schwarz’s opinions that Johnson
suffers from a moderate or marked “restriction of activities of
daily living” and “marked difficulties in maintaining social
functioning, concentration, persistence or pace,” on the one
hand, and, on the other, her own account of a robust regimen of
daily activities that, frankly, would put a completely healthy,
and much younger, person to shame (Johnson was 62 at the time of
the hearing before the ALJ). As the ALJ defensibly--if not
10 inevitably--reasoned, Johnson’s “ability to participate in these
activities is not consistent with marked limitations, as these
activities show that she can leave the house independently on a
regular basis, sustain the attention and concentration needed to
run errands, attend appointments, and shop,” as well as routinely
“prepare meals using fresh ingredients for sustained periods of
time, and complete household chores.”
Again, in weighing the opinion of a claimant’s treating
doctors as to his or her limitations, an ALJ may properly
consider the claimant’s contrary statements as to her own
abilities. Scanlon, 2013 DNH 088, 17-18. Indeed, “there will be
an obvious inconsistency between [such an] opinion and the other
substantial evidence . . . when a treating source’s report
contains an opinion that the [claimant] is significantly limited
in the ability to do work-related activities, but the opinion is
inconsistent with the statements of the [claimant] about [his or
her] actual activities.” Titles II and XVI: Giving Controlling
Weight to Treating Source Medical Opinions, SSR 96-2p, 1996 WL
374188, at *3 (SSA 1996). In light of the remarkable disparity
between Johnson’s own account of her daily activities and Dahle’s
and Schwarz’s opinions that Johnson was moderately or markedly
restricted in those activities, as well as plagued by marked
difficulties in social functioning and concentration,
persistence, or pace (a disparity which, again, Johnson does not
11 even attempt to address in her motion to reverse) the ALJ did not
err in giving little weight to Dahle’s and Schwarz’s views of
Johnson’s anxiety-related limitations.3
Consulting source opinions
The ALJ found that Johnson retained the RFC “to perform a
full range of work at all functional levels,” but with a number
of “non-exertional limitations,” including: “simple, unskilled
work performed in a low stress environment, which is defined as
limited to no changes in the work setting and little to no need
for use of judgment,” “occasional social interactions with the
general public and coworkers,” and “maintain[ing] attention and
concentration for two-hour increments throughout an eight-hour
workday.” The ALJ based this conclusion on the opinions of two
psychologists who did not treat Johnson: Laura Flashman, who
completed a comprehensive neuropsychological evaluation of her in
August 2011, and William Jamieson, who reviewed Johnson’s case
3 Johnson also charges that, in assessing Dahle’s and Schwarz’s opinions, “the ALJ’s analysis disregards altogether the evidence of repeatedly assessed a [sic] global assessment of functioning, GAF, score [sic] of 41-50, indicating serious symptoms over a protracted period of time.” As this court has repeatedly noted, though, “there is no ‘statutory, regulatory, or other authority requiring the ALJ to put stock in a GAF score in the first place,’” Chapin, 2012 DNH 177, 14, (quoting Kornecky v. Comm’r of SSA, 167 Fed. App’x 496, 511 (6th Cir. 2006)), particularly when those scores indicate functional limitations that are hopelessly at odds with the claimant’s own account of her abilities.
12 for the state Department of Health and Human Services in
September 2011. Johnson argues that the ALJ’s consideration of
this evidence was in error. The court disagrees.
Flashman took the results of her testing to indicate
Johnson’s “generally intact executive functioning across a wide
range of tasks with some evidence of subtle difficulty with
monitoring of task performance.” Flashman also noted, however,
that Johnson “endorsed significant affective distress that might
impact her cognitive functioning to some degree; difficulty
deploying focused attention and working to maximal capacity, as
well as organization and memory functioning, were often
compromised in this context.” While the ALJ observed that
Flashman “did not provide a function-by-function assessment of
[Johnson’s] abilities and limitations,” he nevertheless accorded
Flashman’s “opinion significant weight, as it provided objective
evidence of [Johnson’s] cognitive abilities and limitations.”
Johnson argues that Flashman’s conclusion “that once
emotional distress entered the equation, [] Johnson’s ability to
carry out . . . cognitive functioning would become compromised[]
is precisely the heart of her impairment,” making Flashman’s
opinions “consistent with that of the treating physicians.” It
is true that both Flashman and Johnson’s treating doctors had
found her mood disorders to impact her functioning--but so did
the ALJ, who, as just noted, limited Johnson to working in a “low
13 stress” environment with no more than occasional social
interactions and the need to maintain concentration in only two-
hour increments. Johnson does not endeavor to explain how those
limitations are at odds with any of Flashman’s opinions.
Instead, Johnson maintains that the ALJ could not have
simultaneously adopted Flashman’s view while rejecting the
“consistent” view of Johnson’s treating physicians. While,
again, those views were “consistent” in kind insofar as they both
saw Johnson as limited by her mood disorders, they were
inconsistent in degree--nothing in Flashman’s findings suggests
the marked limitations in activities of daily living, or the
marked difficulties in social functioning and concentration,
persistence, or pace, found by Dahle and Schwarz, nor, for that
matter, the total inability to do even “repetitive or short-cycle
work” found by Candido. Johnson does not argue otherwise.
Furthermore, the ALJ did not reject the opinions of Johnson’s
treating physicians because they were inconsistent with
Flashman’s but rather because, as just discussed at length, they
were inconsistent with those physicians’ notes and, moreover,
Johnson’s own account of her capabilities. Johnson has failed to
show, then, that the ALJ erred in either his interpretation or
his use of Flashman’s findings.
Moreover, while, as the ALJ observed, Flashman did not
“provide a function-by-function assessment of [Johnson’s]
14 abilities and limitations,” the ALJ did not rely solely on
Flashman’s opinions in formulating Johnson’s RFC. The ALJ also
relied on the opinions of Jamieson, who--in contrast to the views
of Dahle and Schwarz--found only “mild restriction of activities
of daily living, mild difficulties in maintaining social
functioning, and moderate difficulties in maintaining
concentration, with no repeated episodes of decompensation.”
Jamieson further found that Johnson suffered from no limitations
in understanding, memory, or social interaction, but that she had
“the ability to deal with only simple and routine changes in the
work setting” as well as “some impairment in [her] ability to
maintain persistence to task over extended periods, but this
would not be at an acceptable level.”
Johnson challenges the ALJ’s reliance on Jamieson’s opinions
solely on the ground that his “review in this case occurred in
September 2011, a year before the ALJ decision” and, as a result,
“did not consider the treating source opinions,” rendered in the
spring and summer of 2012.4 As already discussed at length,
though, the ALJ properly found that those opinions (insofar as
4 Johnson also asserts that Jamieson did not “have available any comprehensive reports from her medical specialists (psychiatry and psychology).” But she does not, by citation to the record or otherwise, identify these alleged “comprehensive reports” so, insofar as she means to refer to something other than the forms on which Candido, Dahle, and Schwarz expressed their opinions, the court simply cannot evaluate her argument.
15 they suggested limitations greater than those he incorporated
into his RFC finding) lacked support in--and, indeed, were
contradicted by--the balance of the record. So it was likewise
appropriate for the ALJ to rely on the opinions of a state agency
consultant that “failed” to take those unsupported opinions into
account, at least where, as here, Johnson fails to specifically
identify anything else in the records of her treatment
post-dating Jamieson’s report that undermines his conclusions in
any way. See Comeau v. Colvin, 2013 DNH 145, 18-19, aff’d
without opinion, No. 13-2542 (1st Cir. June 25, 2014). The ALJ
did not err in relying on Jamieson’s opinions.
Conclusion
As this court has observed, an ALJ can rely “exclusively on
the assessments of non-testifying, non-examining physicians” in
adjudicating a claimant’s RFC, and conflicts between those
assessments and other medical testimony “are for the ALJ to
resolve.” Morin v. Astrue, 2011 DNH 091, 9-10 (citing Berrios
Lopez v. Sec’y of HHS, 951 F.2d 427, 431-32 (1st Cir. 1991)) and
Tremblay v. Sec’y of HHS, 676 F.2d 11, 12 (1st Cir. 1982)).
Furthermore, “[t]he ALJ decision to resolve that conflict against
the claimant should be affirmed if “‘that conclusion has
substantial support in the record.’” Id. (quoting Tremblay, 676
F.2d at 12). Because, for the reasons just explained, that is
16 the case here, Johnson’s motion to reverse the ALJ’s decision5 is
DENIED, and the Commissioner’s motion to affirm the decision6 is
GRANTED. The clerk shall enter judgment accordingly and close
the case.
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: March 12, 2015
cc: Karl E. Osterhout, Esq. Daniel McKenna, Esq. T. David Plourde, AUSA
5 Document no. 7. 6 Document no. 12.