Johnson v. US Social Security Administration, Commissioner

Filing 10

ORDER denying 6 Motion to Reverse Decision of Commissioner; granting 8 Motion to Affirm Decision of Commissioner. Clerk to enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Mark L. Johnson
v.

Civil No. 11-cv-245-JD
Opinion No. 2011 DNH 188

Michael Astrue, Commissioner,
Social Security Administration
O R D E R
Mark L. Johnson seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Commissioner of the Social
Security Administration, denying his application for social
security disability insurance benefits and supplemental security
income under Title II and Title XVI.

Johnson challenges the

decision, contending that the Administrative Law Judge (“ALJ”)
failed to properly assess the medical opinions in determining his
residual functional capacity.

The Commissioner moves to affirm

the decision.

Background1
Johnson filed applications for benefits, alleging a
disability beginning on March 16, 2007, due to degenerative disc

1

The background information is taken from the parties’ joint
statement of material facts, which are summarized only to the
extent necessary for this decision. See LR 9.1.(b)(2).

disease, depression, cerebral hemorrhage, and Barrett’s
esophagus.

Following a hearing before an ALJ, his applications

were denied on October 7, 2009.

The Decision Review Board,

however, vacated the decision and remanded the case to the ALJ
for further proceedings.

A second hearing was held on November

8, 2010, and the ALJ again denied Johnson’s application.

When

the Decision Review Board failed to complete a timely review, the
ALJ’s decision became the final decision of the Commissioner.

A.

Medical Records Pertaining to Physical Impairment

Johnson had a history of back pain that began to worsen in
November of 2006.

An x-ray on November 7, 2006, showed

degenerative disc disease with disc space narrowing at L4 to S1
of the lumbar spine area.

An MRI done three days later also

showed an L3-L4 disc protrusion with L3 disc disease.
On January 15, 2007, Johnson began back pain treatment with
Dr. Jan Slezak at Interventional Spine Medicine.
neurological examination was normal.

His

Dr. Slezak recommended

epidural steroid injections for his pain.

At first, the

injections reduced Johnson’s pain significantly.

By March of

2007, however, Johnson reported that he did not think the
injections were helping.

Although his distal neurovascular

2

examination was “grossly intact,” Johnson decided that he wanted
to proceed with surgery.
Dr. Glenn S. Lieberman concluded that surgery was
appropriate based on the MRI results and recommended a discectomy
on the left side at L3-L4.
2007.

The procedure was done on March 16,

Johnson reported that the radicular symptoms were gone

although he still had significant pain in his back.
infection was treated with antibiotics.

A wound

On April 23, 2007, Dr.

Liberman cleared Johnson for full duty work, and Johnson did not
return for his follow-up appointment in May.
On November 17, 2007, Johnson went to the emergency room
because of back pain.

Examination showed that his back was not

tender but that he did have a decreased range of motion.

An x-

ray showed moderate degenerative changes in his lumbar spine.
was diagnosed with a lumbar spasm and strain.

He

He was seen again

on November 21 for back pain, and the examination showed no
abnormalities except a mildly limited range of motion in the
lumbar area.
On the same day, Susan Thienon, ARNP, completed a functional
capacity assessment.

Thienon found that Johnson could do up to

four hours of sedentary work for three days in a week with
certain accommodations.

She indicated that Johnson would require

an ability to change position every fifteen to twenty minutes,

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could not lift or carry any weight, could push or pull ten to
twenty pounds occasionally, and had several postural limitations.
Thienon further indicated that her assessment was based on
Johnson’s current condition and that she expected him to improve
over the next one to three months.
An MRI of the lumbar area on November 29, 2007, showed
multiple level degenerative disc disease with space narrowing,
loss of disc signal intensity, and a mild disc bulge.

On

December 6, 2007, a note was made that the MRI showed no evidence
of cord or nerve compression or disc herniation.
At an appointment on February 7, 2008, Dr. Lieberman
recommended steroid injections rather than surgery to treat
Johnson’s back pain.

On February 27, 2008, a neurological

examination showed pain at forty-five degrees of flexion and at
eighty degrees on straight-leg raising while sitting.

Dr. Slezak

gave Johnson a steroid injection on March 7, 2008, but Johnson
reported on April 10 that the injection did not help and that he
wanted to try chemical pain management.

At a mental status

examination on April 22, 2008, Johnson’s gross motor skills
appeared to be intact, but he sat stiffly and seemed to have
significant pain when he got up from his chair at the end of the
examination.

Johnson had another injection in May.

4

Dr. Matt Masewic reviewed Johnson’s medical records and
provided a residual functional capacity assessment on March 5,
2008.

Based on his review, Dr. Masewic thought that Johnson

could lift, carry, push, or pull twenty pounds occasionally and
ten pounds frequently; could sit, stand, or walk for about six
hours in an eight-hour work day; and could occasionally climb,
balance, stoop, kneel, crouch, and crawl.

Dr. Masewic also wrote

that Johnson’s allegations of pain were not credible based on his
review of the evidence.
In August of 2008, Johnson reported he was not taking any
medication for pain.
2008.

He had another injection in September of

At an appointment on September 30, Johnson’s gait was

normal, but he reported occasional pain in both legs.
another injection on October 14, 2008.

He had

He did not go to his

follow-up appointment with Dr. Lieberman on October 24, 2008.

He

was treated at the emergency room on November 15, 2008, for back
pain due to back spasm.
In December of 2008, Johnson had a radiofrequency
denervation procedure of the left lumbar facet joint and reported
that the pain decreased to zero.2

Johnson also saw Dr. Robert

Mathes for back pain and a tingling sensation in both legs.

2

His

The parties did not provide a definition for the procedure.
See LR 9.1(b)(2).
5

gait was stiff but other tests had normal results.

He was

diagnosed with chronic low back pain, restless leg syndrome, and
serotonin deficiency.
On December 22, 2008, and February 18, 2009, Johnson saw Dr.
Frank Graf for orthopedic consultative examinations that were
arranged by Johnson’s counsel for purposes of his social security
application.

Dr. Graf noted Johnson’s history of chronic back

pain and his recent intracranial hemorrhage because of excessive
ibuprofen use.

In Dr. Graf’s opinion, Johnson had a failed back

surgery, multi-level degenerative disc disease and facet joint
changes, persistent musculoskeletal pain, depression, and
cerebrovascular hemorrhage.

Because of his back impairment, Dr.

Graf found that Johnson met and equaled the criteria for the
impairment listing at 20 C.F.R. Part 404, Subpart P, Appendix 1,
§ 1.04.

Dr. Graf also found that Johnson’s mental impairment met

the requirements for the listing at § 12.04.

Dr. Graf’s

conclusion was that Johnson had been disabled since September of
2006.
Johnson was admitted to the hospital on February 5, 2009,
because of a headache that began on January 29.

On examination,

Johnson was pleasant, cooperative, alert, oriented, and with no
deficits or abnormalities.

Following a CT scan of the brain, he

was diagnosed with a right caudate hemorrhage that was suspected

6

to have been caused by overuse of anti-inflammatory drugs.

On

follow up, Johnson continued to have a mild headache, but he
remained neurologically intact.

His examination was otherwise

normal in all areas, including a normal gait.

He was instructed

not to lift, carry, push, or pull any weight and not to use antiinflammatory medications.

His last follow-up appointment was on

February 23, when he was told that he could return to normal
activities.
On March 24, 2009, Johnson saw Physician’s Assistant Kelly
Doherty for follow-up after the radiofrequency denervation
procedure.

Johnson reported that he still had back pain and was

disappointed with the lack of relief from the procedure.
neurological examination was normal.

His

A spinal MRI was done on

April 3, 2009, which showed broad disc bulges at L2-3, L3-4, and
L4-5; small disc protrusion at L5-S1; and moderate to severe
joint disease.
Johnson had a gastroesophageal junction biopsy on September
11, 2009.

The results did not show cancer, and he was advised to

continue to monitor his reflux disease.
Johnson saw Dr. Minh T. Tran on November 5, 2009, for an
evaluation of his back problems.

Dr. Tran noted that Johnson’s

gait was not antalgic, meaning that his gait was normal and did
not indicate pain.

Johnson’s pain increased with lumbar range of

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motion but his strength and sensation were normal.

His straight

leg raise test was normal except that it increased his back pain.
Dr. Tran assessed persistent low-back pain with multilevel
degenerative disc disease and referred Johnson for a “lumbar
unloader brace.”

Dr. Tran also noted that Johnson was

financially unable to pursue additional therapy.

B.

Medical Records Pertaining to Mental Impairment

The New Hampshire Disability Claims Adjuster referred
Johnson for a consultative mental examination with Stefanie L.
Griffin, Ph.D., which was done on April 22, 2008.

The purpose of

the examination was to assess Johnson’s claim of functional loss
caused by depression, memory problems, and social interaction
issues.

Dr. Griffin diagnosed a major depressive disorder and a

pain disorder.

Based on the effects of Johnson’s disorders, Dr.

Griffin thought he would have mild to moderately reduced
understanding and memory, social functioning, concentration, and
adaptation to work situations.
Michael Schneider, Psy.D., reviewed Johnson’s records
pertaining to mental impairments and completed a psychiatric
review technique form on May 2, 2008.

Dr. Schneider found that

Johnson’s mental impairments caused moderate limitations in his
daily living activities, ability to maintain social functioning,

8

and ability to maintain concentration, persistence, or pace.

Dr.

Schneider provided a residual functional capacity assessment that
Johnson was able to understand, remember, and carry-out short and
simple instructions without special supervision; to maintain
adequate attention and complete a normal work week; and to
interact appropriately and accommodate changes in the workplace
as long as supervisors were not overly critical.
Johnson had a follow-up appointment regarding depression
with Ms. Thienon on June 26, 2008.

Ms. Thienon’s note indicates

that he was prescribed medication for depression in November of
2007.

Johnson reported improvement but that he still struggled

with depression.

Ms. Thienon increased Johnson’s medication

dose.
Johnson attended seven therapy session at Community Partners
between June and August of 2008.

He was diagnosed with dysthymic

disorder, meaning a chronically depressed mood that has lasted
for at least two years.

During therapy sessions, Johnson was

engaged and reported a reduction in depression and an increase in
communication skills.

He was given a Global Assessment Score of

9

65.3

Johnson did not continue with his therapy sessions after

August.
At an appointment with Ms. Thienon in December of 2008,
Johnson reported that his mood was “really good.”

At another

appointment on August 13, 2009, Johnson said that he had
responded well to the medication, without side effects.

Ms.

Thienon noted that his depression was controlled with medication.
On June 24, 2010, Dr. Thomas P. Lynch did a mental health
evaluation of Johnson.

Dr. Lynch noticed that Johnson’s speech

was excessively slow and soft and that he had limited affect.
Johnson said that his mood was generally edgy and irritated.
Johnson showed no evidence of a thought disorder, and he was
oriented, clear, and alert.

In a mental residual functional

capacity assessment, Dr. Lynch stated that Johnson generally had
mild and moderate mental limitations, with a marked limitation in
his ability to understand and remember complex instructions and
to make judgments on complex work-related decisions.

C.

Hearing

A hearing was held on November 8, 2010.

Johnson testified

that his pain was traveling to his neck, that he was lying down
3

A Global Assessment Score is a psychiatric measure of a
person’s overall functioning. Jelinek v. Astrue, --- F.3d ---,
2011 WL 5319852, at *1 (7th Cir. Nov. 7, 2011). A score of 65
indicates mild symptoms with generally good functioning. Petrie
v. Astrue, 412 Fed. Appx. 401, 406 (2d Cir. 2011).
10

most of the time, and that he got only about two hours of
uninterrupted sleep at a time.

He said that he could drive for

about ten miles comfortably but when he sat too long, his legs
would start to ache and his hands and feet would go numb.
down relieved the symptoms.

Lying

Johnson explained that although he

was suffering from depression, he was not receiving treatment
because he could not afford it other than his appointments with
Ms. Thienon.

Johnson wore a back brace at the hearing, which he

said was uncomfortable, and he said that he had been wearing it
for about a year.
Dr. John D. Axline, an orthopedic surgeon, testified as a
consultative medical expert at the hearing.

Dr. Axline explained

that he had reviewed Johnson’s records and had enough information
to form an opinion.

He testified that none of Johnson’s

impairments met or equaled a condition listed at 20 C.F.R. Part
404, Subpart P, Appendix 1.

In Dr. Axline’s opinion, Johnson

could lift ten pounds frequently and twenty pounds occasionally,
sit for two hours at a time and for six hours total in an eighthour work day, stand for one hour at a time and for four hours in
an eight-hour day, and walk for one hour at a time and for two
hours in an eight-hour day.

He found no other restrictions on

Johnson’s functional capacities.

Dr. Axline said that his

opinion differed from other opinions in the record but he did not
believe the other opinions were supported by the record facts.
11

A vocational expert also appeared by telephone at the
hearing.

In response to several hypothetical questions that

incorporated various limitations and restrictions, the vocational
expert gave her opinion about what work the hypothetical person
could do.

The only hypothetical for which she ruled out all work

was if the person could only occasionally carry ten pounds, could
sit for only five to ten minutes at a time, could walk for only
ten minutes, could not work an eight-hour day, could never do
postural activities, and had marked to moderate difficulties with
understanding, remembering, and interacting with supervisors and
peers.

D.

Decision

The ALJ found that Johnson had engaged in substantial
gainful activity since his alleged onset date of March 16, 2007,
when he returned to work at the end of April, 2007, and worked
there until June, 2007, and when he worked as driver for
Northeast Ice Cream until September, 2007.
2007, Johnson had not worked.

Since September 30,

The ALJ found that Johnson had

severe impairments due to degenerative disc disease of the lumbar
spine, depression, and Barrett’s esophagus but that none of his
impairments met or equaled a listed impairment.
Considering Johnson’s impairments, the ALJ determined that
he had a residual functional capacity for light work with
12

restrictions for occasionally doing postural activities.

He also

found that Johnson could understand, remember, and carry out
short and simple instructions, complete a normal work week, and
interact appropriately with supervisors and peers.

The ALJ found

that Johnson could not return to his former work but that other
work existed in the relevant economies that Johnson could do.
Based on those findings, the ALJ determined that Johnson was not
disabled.

Standard of Review
In reviewing the final decision of the Commissioner in a
social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.”
172 F.3d 31, 35 (1st Cir. 1999).

Nguyen v. Chater,

The court defers to the ALJ’s

factual findings as long as they are supported by substantial
evidence.
scintilla.

§ 405(g).

“Substantial evidence is more than a

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”

Astralis

Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev., 620 F.3d 62,
66 (1st Cir. 2010).
Disability, for purposes of social security benefits, is
“the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
13

can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

20 C.F.R. §§ 404.1505(a) & 416.905(a).

The ALJ follows

a five-step sequential analysis for determining whether a
claimant is disabled.

§§ 404.1520 & 416.920.

The claimant bears

the burden, through the first four steps, of proving that his
impairments preclude him from working.
F.3d 606, 608 (1st Cir. 2001).

Freeman v. Barnhart, 274

At the fifth step, the

Commissioner determines whether work that the claimant can do,
despite his impairments, exists in significant numbers in the
national economy and must produce substantial evidence to support
that finding.

Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001).

Discussion
Johnson contends that the ALJ failed to properly assess the
medical opinions in the record.

As a result, Johnson argues, the

Commissioner’s decision is not supported by substantial evidence.
In assessing a claimant’s limitations and impairments, the
ALJ evaluates all of the medical opinions in the record.
404.1527(d) & 416.927(d).

§§

The ALJ attributes weight to a medical

opinion based on the nature of the relationship between the
medical provider and the claimant.

§§ 404.1527(d) & 416.927(d).

An opinion based on one or more examinations is entitled to more
weight than a non-examining source’s opinion, and a treating
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source’s opinion, which is properly supported, is entitled to
more weight than other opinions.

Id.

A treating source’s

opinion on the nature and severity of the claimant’s impairments
will be given controlling weight only if the opinion is “wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.”
§§ 404.1527(d)(2) & 416.927(d)(2).
The ALJ also attributes weight to an opinion based on
whether a medical source provides relevant evidence to support
the opinion, whether the opinion is consistent with the remainder
of the record, the specialization of the medical source, and
other factors including the amount of understanding the medical
source has about the disability benefit system.
& 416.927(d).

§§

404.1527(d)

In addition, the ALJ evaluates the opinion of a

medical expert who is asked to provide an opinion for purposes of
a disability determination using the same considerations.

§§

404.1527(f)(2)(iii) & 416.927(f)(2)(iii).

A.

Opinions About Back Condition

Johnson contends that the ALJ erred in failing to give more
weight to Dr. Graf’s opinion than to Dr. Axline’s opinion.
Johnson argues that Dr. Graf’s relationship with him, which
included a physical examination, weighs in favor relying on his
15

opinion.

He also argues that Dr. Axline’s opinion is

inconsistent with the medical record.
The ALJ explained in his decision that Dr. Graf’s opinion
was given little weight because it was based on a single
examination after he was hired by Johnson’s counsel and because
his opinion was not supported by the record evidence.
Specifically, the ALJ noted that Dr. Graf reported Johnson could
walk for only ten minutes and could not walk more than a block on
an uneven surface while entries in his medical records indicated
that he could walk his dog for a half mile, walk for thirty
minutes, and walk for a mile.

The ALJ also noted that Dr. Graf

wrote that Johnson could not lift anything but that he could
carry ten pounds occasionally and stated that Johnson experienced
significant confusion following his cerebral hemorrhage when
Johnson denied confusion.
Further, the ALJ noted that Dr. Axline testified that Dr.
Graf was wrong that Johnson’s back condition would meet the
requirements of the listing at § 1.04 and misinterpreted the
record as to Johnson’s pain with straight leg testing.

Dr.

Axline also testified that Dr. Graf’s limitations were not
supported by his own examination or the record evidence.

The ALJ

did not give Dr. Axline’s opinions any particular weight except
to consider his testimony for purposes of evaluating the weight
to give Dr. Graf’s opinions.
16

Johnson argues that Dr. Axline misinterpreted the record by
acknowledging Johnson’s positive signs for pain but finding that
he is not orthopedically impaired and by ascribing the referral
for a back brace to a nurse practitioner when Dr. Tran made the
referral.

Johnson also cites Dr. Palacio’s statement that

Johnson was disabled because of back problems.

Johnson further

notes that his use of over-the-counter ibuprofen for pain to the
extent of causing a cerebral hemorrhage is significant.
The ALJ gave Dr. Masewic’s opinion great weight for purposes
of determining Johnson’s residual functional capacity.
The ALJ found that Dr. Masewic’s opinions were consistent with
and supported by the record evidence.

The ALJ also noted that

Dr. Masewic is a general practitioner and is familiar with the
social security regulations.

The ALJ’s residual functional

capacity assessment is consistent with Dr. Masewic’s opinion.
Johnson does not challenge the ALJ’s reliance on Dr. Masewic’s
opinion.
Dr. Graf did not have a treating relationship with Johnson,
and his opinions were based on a single examination at the
request of Johnson’s counsel.

As the ALJ explained, Dr. Graf’s

opinions are far more restricted than the record supports.
Although the record can be interpreted to provide some evidence
of greater restrictions than the ALJ found, the record also
includes substantial evidence that supports the ALJ’s findings.
17

The Commissioner resolves such conflicts in the evidence, and
properly did so in this case.

See Rodriguez Pagan v. Sec’y of

Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987).

B.

Opinions about Depression

Johnson asserts that he met the listing for mental disorders
at § 12.04.

He cites the opinion of Dr. Lynch, which he reviews

in detail.

In conclusion, however, Johnson states that he agrees

with Dr. Lynch’s opinion that he has a severe mental impairment
but disagrees with his opinion that Johnson does not meet a
listings level of impairment.

Johnson argues that Dr. Lynch’s

opinions about his impairments are inconsistent with his
conclusion that Johnson does not meet the requirements of §
12.04.

Johnson also discusses Dr. Griffin’s opinion, but without

reference to § 12.04 or the ALJ’s decision.
As such, Johnson does not challenge the ALJ’s assessment of
opinion evidence but instead argues that Dr. Lynch’s conclusion
was wrong.

Johnson cites no opinion that found he met the

listing requirements.

Therefore, Johnson provides no basis to

review the ALJ’s evaluation of the medical evidence pertaining to
depression.

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C.

Opinions about Cerebral Hemorrhage and Barrett’s

Esophagus
Johnson acknowledges that his cerebral hemorrhage and the
condition caused by Barrett’s esophagus were not severe
impairments.

He states that the hemorrhage had only a minimal

impact on his ability to function.

He states, however, that

taken along with his back condition and depression, the
impairments together make him unable to maintain gainful
employment.
Johnson does not address any medical opinion evidence in
this context or otherwise challenge the ALJ’s specific findings.
His conclusory statement that his impairments, taken together,
prevent him from working is insufficient to raise an issue for
review.

See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d

252, 260 (1st Cir. 1999) (“The district court is free to
disregard arguments that are not adequately developed.”); see
also Wall v. Astrue, 561 F.3d 1048, 1066 (10th Cir. 2009);
Charles v. Astrue, 2011 WL 3206443, at *9 (E.D. Tenn. April 20,
2011); Williamson v. Astrue, 2010 WL 2858834, at *10 n.1 (N.D.
Ill. July 16, 2010).

19

Conclusion
For the foregoing reasons, the claimant’s motion to reverse
the Commissioner’s decision (document no. 6) is denied.
Commissioner’s motion to affirm (document no.

The

8) is granted.

The clerk of court shall enter judgment accordingly and
close the case.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
November 15, 2011
cc:

Peter J. Mathieu, Esquire
Gretchen Leah Witt, Esquire

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