Hudon v. US Social Security Administration, Acting Commissioner

Filing 12

///ORDER granting 10 Motion to Affirm Decision of Commissioner; denying 8 Motion to Reverse Decision of Commissioner. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jason V. Hudon
v.

Civil No. 14-cv-569-JL
Opinion No. 2016 DNH 019

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.
§ 404.1505(a).

See 20 C.F.R.

The Appeals Council later denied Hudon’s request

for review, see id. § 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 42 U.S.C. § 405(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.”
Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).

Ward v.
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, 402 U.S. 389, 401 (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., 955

F.2d 765, 769 (1st Cir. 1991).
II.

Background
In assessing Hudon’s request for disability benefits, the

ALJ engaged in the requisite five-step process.
§ 416.920.

See 20 C.F.R.

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.
C.F.R. §§ 416.920(d), 416.925, and 416.926.

See 20

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 20 C.F.R. § 404.1565, 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.”
20.

Admin. R. at

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.”

Id.

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, 2015 DNH 59, 7 (citing

20 C.F.R. § 416.927(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.

5

20 C.F.R.

§ 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.”

20 C.F.R. § 404.1527(d)(2).

The ALJ may, however,

discount an opinion that is not so supported.

See, e.g., Carrion

v. Colvin, 2014 DNH 174, 6-8 (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.”

20 C.F.R. § 404.1527(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, 1996 WL 374188, 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, 2010 DNH

190, 22-23 (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
15.

Mem. at

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., 955 F.2d 765, 769 (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, 1996 WL
374186 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, 947 F.2d 990, 997 (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, 895 F.2d
1, 17 (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, 1996 WL 374188, 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, 2015 DNH 142, 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., 829 F.2d 192, 195
(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.”
v. Astrue, 2011 DNH 5, 30-31 n.29.
to have committed this error.

Delafontaine

Here, the ALJ does not appear

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 20 C.F.R. § 416.945.

well within the ALJ’s purview.

Evangelista v. Sec’y of HHS, 826

F.2d 136, 144 (1st Cir. 1987).

11

This is

Second, while the ALJ has “a duty to develop an adequate
record from which a reasonable conclusion can be drawn,”
Heggarty, 947 F.2d at 997 (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, 944 F. Supp. 121, 130
(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, 2014 DNH

226, 16.
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 42 U.S.C. § 405(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