UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jeffrey Johnson

v. Case No. 16-cv-375-PB Opinion No.

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

(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

(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.,

(1st

Cir. 2000). I defer to the ALJ’s findings of fact, as long as

those findings are supported by substantial evidence.

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.,

(1st Cir. 1991) (per curiam)

5 (quoting Rodriguez v. Sec’y of Health & Human Servs.,

(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,

(1st Cir. 1999)

(per curiam). The ALJ determines issues of credibility and

draws inferences from evidence in the record. Irlanda Ortiz,

. The ALJ, and not the court, must resolve

conflicts in the evidence.

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.,

(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.,

(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,

, 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

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.

(c)(2); see Foley v.

Astrue, No. 09-10864,

, *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,

(quoting SSR 96–2p,

, 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,

. 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,

(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,

(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,

(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.,

(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.

(c); see Berrios-Lopez,

13

.

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

(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,

; Abubakar v.

Astrue, No. 11-cv-10456,

, 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

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.

. However, the ALJ is

not required to accept the claimant’s assertion of pain

wholesale. Shaw v. Sec’y of Health & Human Servs.,

, 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.

(c); see Avery

v. Secretary of Health & Human Servs.,

(1st

Cir. 1986).

Here, the ALJ evaluated Johnson’s level of pain by

16 considering a number of the factors set out in

(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,

. 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,

(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.,

(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.,

(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,

(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.

19