UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jason V. Hudon

v. Civil No. 14-cv-569-JL Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Jason V. Hudon has appealed the Social Security

Administration’s (“SSA”) denial of his application for a period

of disability and disability insurance benefits. An

administrative law judge at the SSA (“ALJ”) ruled that, despite

Hudon’s severe impairments (osteoarthritis with osteoporosis,

mild degenerative disc disease, fibromyalgia, history of

substance abuse, and depression), he retains the residual

functional capacity (“RFC”) to perform a full range of sedentary

work, and, as a result, is not disabled. See

(a). The Appeals Council later denied Hudon’s request

for review, see

§ 404.968(a), with the result that the ALJ’s

decision became the final decision on Hudon’s application, see

id. § 404.981. Hudon then appealed the decision to this court,

which has jurisdiction under

(g) (Social

Security). Hudon has moved to reverse the decision, see L.R. 9.1(b),

challenging it as unsupported by substantial evidence. He argues

that, in making his RFC determination, the ALJ (1) failed to

properly evaluate the medical opinion of his treating

rheumatologist, (2) failed to properly evaluate Hudon’s

subjective complaints, and (3) substituted his own judgment for

medical opinion as to Hudon’s mental condition. The Acting

Commissioner of the SSA has cross-moved for an order affirming

the ALJ’s decision. See L.R. 9.1(e). After careful

consideration, the court agrees with the Acting Commissioner that

the ALJ committed no error, and therefore grants the Acting

Commissioner’s motion to affirm (and denies Hudon’s motion to

reverse) the ALJ’s decision.

I. Applicable legal standard

The court limits its review of a final decision of the SSA

“to determining whether the ALJ used the proper legal standards

and found facts upon the proper quantum of evidence.” Ward v.

Comm’r of Soc. Sec.,

(1st Cir. 2000). The

court will uphold the ALJ’s decision if it is supported by “such

evidence as a reasonable mind might accept as adequate to support

a conclusion.” Richardson v. Perales,

(1971)

(quotations omitted). Though the evidence in the record may

support multiple conclusions, the court will still uphold the

2 ALJ’s findings “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 Heath & Human Servs.,

(1st Cir. 1991).

II. Background

In assessing Hudon’s request for disability benefits, the

ALJ engaged in the requisite five-step process. See

. He first concluded that Hudon had not engaged in

substantial gainful activity since the alleged onset of his

disability on January 28, 2010. At the second step, he

determined that Hudon suffers from several severe impairments:

osteoarthritis with osteoperosis, mild degenerative disc disease,

fibromyalgia, history of substance abuse (albeit in remission)

and depression. The ALJ then found that Hudon’s impairments did

not meet or “medically equal” the severity of one of the

impairments listed in the Social Security regulations. See

(d), 416.925, and 416.926. Then, the ALJ

concluded that Hudon retained the RFC to perform a full range of

sedentary work with a few nonexertional limitations --

specifically, that he must “avoid hazards” and “is limited to

simple, repetitive, one to two step tasks.” Admin. R. at 17.

After finding that Hudon could not perform his past relevant work

as an installer of drywall, see

, the ALJ

3 continued to step five, where he concluded that Hudon could

perform other jobs that exist in significant numbers in the

economy. Therefore, the ALJ found, Couture was not disabled

within the meaning of the Social Security Act.

III. Analysis

Hudon has leveled three challenges at the ALJ’s decision.

First, he contends that the ALJ erred in discounting the opinion

of his treating rheumatologist, Dr. John Yost, which the ALJ

afforded “little weight” when Hudon contends it should have

received more weight. Second, Hudon argues that the ALJ erred in

evaluating the credibility of his subjective complaints.

Finally, Hudon suggests that, in the absence of a complete

record, the ALJ improperly substituted his own judgment for

medical opinion when crafting Hudon’s mental RFC. Finding none

of these arguments persuasive for the reasons discussed below,

the court affirms the ALJ’s decision.

Dr. Yost’s opinion1

Hudon first alleges that the ALJ erred by giving “little

weight” to the opinion of Dr. Yost, his treating rheumatologist,

1 In evaluating Hudon’s RFC, the ALJ had two medical opinions at his disposal -- those of Dr. John Yost, Hudon’s treating rheumatologist, and Dr. Khwaja Hussein, Hudon’s treating physician. The ALJ afforded limited weight to both physicians’ opinions. Hudon only contests the ALJ’s treatment of Dr. Yost.

4 as to Hudon’s residual functional capacity. The administrative

record contains two assessments by Dr. Yost of Hudon’s ability to

do work-related physical activities -- one dated December 7,

2011, and the other dated July 19, 2012. In the latter opinion,

Dr. Yost concluded that Hudon could “lift and carry less than

five pounds and has the ability to sit for two to three hours and

stand for one or two hours in an eight-hour workday” and that

Hudon was “unable to walk without interruption.” Admin. R. at

20. The ALJ afforded Dr. Yost’s opinion little weight, however,

upon finding that said opinion was “not supported by his own

treatment notes or the evidentiary record as a whole.”

Hudon faults the ALJ for failing to give greater weight to Dr.

Yost’s opinion because he was Hudon’s treating rheumatologist,

and because he had access to the treatment records of several

other physicians in forming his opinion.

The ALJ weighs the medical opinions “based on the nature of

the medical source’s relationship with the claimant, the

consistency of the opinion with the other record evidence, the

medical source’s specialty, and other factors that may be brought

to the ALJ’s attention.” Grant v. Colvin,

(citing

(c)). The ALJ generally gives more weight to

the opinion of a source who examined the claimant, and may give

controlling weight to the claimant’s treating source. 20 C.F.R.

5 § 404.1527(c). The ALJ should defer to a treating physician’s

opinion insofar as it is “well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [his] case

record.”

(d)(2). The ALJ may, however,

discount an opinion that is not so supported. See, e.g., Carrion

v. Colvin,

(upholding ALJ’s decision to reject

treating physician’s opinions as unsupported when claimant failed

cite supporting record evidence). When the ALJ does so, he must

“give good reasons . . . for the weight [he] give[s] to [the]

treating source’s opinion.”

(d)(2). The

mandate to give “good reasons” means that the ALJ’s order “must

contain specific reasons for the weight given to the treating

source’s medical opinion, supported by evidence in the case

record, and must be sufficiently specific to make clear to any

subsequent reviewers the weight the adjudicator gave to the

treating source’s medical opinion and reasons for that weight.”

Social Security Ruling (“SSR”) 96–2p, Policy Interpretation

Ruling Titles II and XVI: Giving Controlling Weight to Treating

Source Medical Opinion,

, at *5 (S.S.A. 1996).

Here, the ALJ gave good reasons for his treatment of Dr.

Yost’s opinion. The ALJ devalued Dr. Yost’s opinion upon finding

it inconsistent with Dr. Yost’s own treatment notes.

6 Specifically, he cited Dr. Yost’s observation that Hudon’s

reported symptoms and functional limitations were

disproportionate to some fibromyalgia tender points found during

examination; that Hudon reported marked improvement of those

symptoms after taking a prescribed medicine; and that Dr. Yost’s

musculoskeletal examination of Hudon showed a “full motion of

bilateral wrists, hands, knees, shoulders, and elbows with no

large or peripheral joint synovitis.” Admin. R. at 20. The ALJ

specifically discounted the December 7, 2011 opinion because Dr.

Yost noted in the margin that Hudon’s functional limitations were

“difficult to assess without a formal functional capacity

evaluation,” Admin R. at 359, suggesting that he had not

performed such an evaluation before completing that opinion. The

ALJ here certainly made clear the weight he afforded Dr. Yost’s

opinion and the reasons for it. Cf. Costa v. Astrue,

(ALJ erred by completely ignoring medical source

opinion).

Rather than arguing that the reasons given by the ALJ fail

to satisfy the “good reasons” requirement, Hudon instead contends

that Dr. Yost’s opinion should be given greater weight because it

is consistent with other record evidence. First, Hudon argues

that the notes of Hudon’s endocrine specialist, Dr. Turco,

“provided valuable insight regarding possible alternate

etiological explanations for conditions that are not easily 7 explained by objective testing.” Mem. at 14. Notably, Hudon

does not point to any notes or opinion by Dr. Turco that would

appear inconsistent with the ALJ’s RFC determination. Hudon’s

reliance on the consistency of his subjective complaints to

several providers, see Mem. at 15, likewise does not undercut the

ALJ’s conclusion. As the court explains infra, the ALJ did not

err in discounting the credibility of Hudon’s subjective

complaints.

Finally, Hudon argues, Dr. Yost’s opinion should be given

greater weight because he had the benefit of a “longitudinal view

of the medical record,” including MRI results that indicated

potential impingement of a nerve root in Hudon’s spine.2 Mem. at

15. Notably, Dr. Yost did not list the MRI results as a basis

for his opinion. Though the MRI results comport with Dr. Yost’s

opinion and may thus support another conclusion than the one at

which the ALJ arrived, the court still affirms the ALJ’s findings

where, as here, “a reasonable mind, reviewing the evidence in the

2 Hudon also alludes to the argument that the ALJ erred in concluding that Hudon did not have an impairment that meets the severity of one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 104A (listing 1.04A) because this MRI shows a potential impinged nerve root in the spine. See Mem. at 15. But, as the Commissioner correctly observes, the relevant listing requires not only evidence of a compressed nerve root, but also evidence of “limitation of motion of the spine, [and] motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss . . . .” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 104A (listing 1.04A). And, as the Commissioner also correctly observes, Hudon has not pointed to any such evidence here. 8 record as a whole, could accept it as adequate to support [the

ALJ’s] conclusion.” Irlanda Ortiz v. Sec’y of Heath & Human

Servs.,

(1st Cir. 1991).

Here, the ALJ adequately explained his reasons for

discounting Dr. Yost’s opinions and those reasons are supported

by substantial evidence. The court therefore finds no error.3

Hudon’s subjective complaints

Hudon fires his next broadside at the ALJ’s evluation of his

subjective complaints of pain and his ability to work. The ALJ

appropriately first considered whether Hudon’s “medically

determinable impairments . . . could reasonably be expected to

produce the symptoms” of which Hudon complained, SSR 96-7p,

Titles II and XVI: Evaluation of Symptoms in Disability Claims:

Assessing the Credibility of an Individual’s Statements,

at *2 (S.S.A. 1996), and concluded that they could.

Admin. R. at 18. He then moved to the next step of evaluating

whether Hudon’s complaints about those symptoms were credible,

3 Hudon’s argument on this front also includes a footnote reminding the court that “[t]he ALJ has a duty to fully develop the record.” Mem. at 16 n.2. It is true to a certain degree. Heggarty v. Sullivan,

(1st Cir. 1991). At the same time, Hudon has a duty to develop his arguments before this court can consider them. See United States v. Zannino,

(1st Cir. 1990) (insufficiently developed arguments are deemed waived). As Hudon has failed to develop his two-sentence argument that the ALJ failed to develop a record on Hudon’s physical RFC, it is deemed waived. 9 SSR 96-7p,

, at *2, and concluded that they were

not.

Citing authority from the Eastern District of Pennsylvania,

Hudon argues that the ALJ committed reversable error at the

second step by failing to address each of the seven factors set

forth in 20 C.F.R. 404.1929(c)(3)(i)-(vii). See Mem. at 17. As

this court has previously observed, however, the ALJ is not

required to make specific findings as to every one of those

factors. Childers v. Colvin,

, 11 n.4. Where, as

here, the ALJ’s assessment of the plaintiff’s credibility is

supported by specific findings, it is entitled to deference.

Frustaglia v. Sec’y of Health & Human Servs.,

(1st Cir. 1987). Holder offers no further critique of the ALJ’s

credibility assessment, and so no more need be said.

Hudon’s residual functional capacity

Finally, Hudon contends that the ALJ erred in his RFC

determination. Specifically, Hudon asserts that he “did not have

the RFC to perform [substantially gainful activity] on a

sustained basis because of the functional limitations caused by

[his] mental impairments.” Mem. at 18. Hudon argues that Dr.

Yost’s opinion and his subjective complaints, if given the

treatment he contends that they deserve but did not receive,

would support his inability perform such activities. Id. at 20.

For the reasons discussed above, the ALJ did not err in his

10 treatment of Dr. Yost’s opinions and Hudon’s subjective

complaints.

The only argument left to Hudon, then, is that the ALJ erred

in crafting Hudon’s mental RFC by acting as his own medical

expert. As best the court can make out, the essence of Hudon’s

argument is that the ALJ failed to develop the record by seeking

additional records from some of Hudon’s providers. Absent those

records, Hudon contends, the ALJ erroneously drew his own

conclusions about Hudon’s mental RFC. This argument fails for

two reasons.

First, as this court has previously explained, “[s]o long as

an ALJ does not convert raw medical evidence into an RFC

assessment, he has not overstepped his bounds by substituting his

own judgment for that of a medical professional.” Delafontaine

v. Astrue,

, 30-31 n.29. Here, the ALJ does not appear

to have committed this error. As Hudon himself acknowledges, the

ALJ based his conclusions as to the causes of stressors in

Hudon’s life not on raw medical evidence, but on conclusions

drawn by providers at the Dartmouth Hitchcock Clinic and a mental

status exam and psychosocial assessment performed by a counselor,

Richard Slater. See Mem. at 20. The ALJ then evaluated Hudon’s

RFC in light of that evidence. See

. This is

well within the ALJ’s purview. Evangelista v. Sec’y of HHS,

(1st Cir. 1987).

11 Second, while the ALJ has “a duty to develop an adequate

record from which a reasonable conclusion can be drawn,”

Heggarty,

(quotations omitted), to amount to

error, an allegation that the record is incomplete must be

accompanied by a demonstration that the incompleteness prejudiced

the plaintiff, see Mandziej v. Chater,

(D.N.H. 1996). Hudon’s mere speculation that the additional

records from Concord Hospital and one Dr. Patil “may have been

helpful in assessing the plaintiff’s current functional

limitations,” Mem. at 20, does not satisfy this standard.

Indeed, Hudon’s suggestion that the records “may” have assisted

the ALJ, without specific allegations as to how, “indicates that

[Hudon] has not seen them. Thus, it is difficult to see how he

can argue that they are pertinent.”4 Keene v. Colvin,

.

IV. Conclusion

Because the ALJ’s RFC assessment, his assessment of Hudon’s

credibility, and his decision to discount the opinions of Hudon’s

treating rheumatologist were supported by substantial evidence,

and because he adequately explained his decision to weigh the

4 Hudon’s counsel was aware of the absence of those additional records as of the date of the hearing before the ALJ. At counsel’s request, the ALJ held the record open for two weeks to give counsel an opportunity to obtain those records, among others. The ALJ’s opinion then issued some five months later. Hudon’s allegation that it was the ALJ who erred in failing to obtain the records in question is not well-founded. 12 opinion evidence, Hudon’s motion to reverse the SSA’s decision5

is DENIED, and the Commissioner’s motion to affirm it6 is

GRANTED. See

(g). The clerk shall enter judgment

accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: January 26, 2016

cc: Judith E. Gola, Esq. T. David Plourde, Esq.

5 Document no. 8. 6 Document no. 10. 13