UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Cathy Stoumen Johnson

v. Civil No. 13-cv-525-JL Opinion No.

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

(a). The Appeals Council later denied Johnson’s

request for review, see

§ 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

(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,

(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.”

(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.,

(table),

, 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,

.

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.”

(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,

(quoting Oldham v. Astrue,

(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.”

(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,

(“[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,

. 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,

, 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,

, (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,

, 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,

(citing Berrios

Lopez v. Sec’y of HHS,

(1st Cir. 1991)) and

Tremblay v. Sec’y of HHS,

(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.’”

(quoting Tremblay,

). 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.

17