Hodgson v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Elizabeth Hodgson,
f/k/a Elizabeth Shreve
v. 	Case No. 18-cv-87-PB
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration
REPORT AND RECOMMENDATION
Pursuant to 42 U.S.C. § 405(g), Elizabeth Hodgson moves to
reverse the Acting Commissioner’s decision to deny her
applications for Social Security disability insurance benefits,
under Title II of the Social Security Act, 42 U.S.C. § 423, and
for supplemental security income under Title XVI, 42 U.S.C. §
1382. (Doc. No. 10). 	The Acting Commissioner, in turn, moves
for an order affirming her decision. 	(Doc. No. 14). 	Those
motions are before this magistrate judge for a report and
recommendation. 	For the reasons that follow, the decision of
the Acting Commissioner, as announced by the Administrative Law
Judge (“ALJ”) should be affirmed.
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.
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Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). 	It
“review[s] questions of law de novo, but defer[s] to the
Commissioner’s findings of fact, so long as they are supported
by substantial evidence,” id., that is, “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). 	“Substantial-evidence review is more
deferential than it might sound to the lay ear: though certainly
‘more than a scintilla’ of evidence is required to meet the
benchmark, a preponderance of evidence is not.” 	Purdy v.
Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (quoting Bath Iron
Works Corp. v. U.S. Dep’t of Labor, 336 F.3d 51, 56 (1st Cir.
2003)).
Thus, though the evidence in the record may support
multiple conclusions, the court will still uphold the 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 Health & Human Servs.,
955 F.2d 765, 769 (1st Cir. 1991). 	Ultimately, the court “must
uphold a denial of social security . . . benefits unless ‘the
[Acting Commissioner] has committed a legal or factual error in
evaluating a particular claim.’” 	Manso-Pizarro v. Sec’y of
Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per
curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
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II. Background1
The ALJ invoked the requisite five-step sequential
evaluation process in assessing Hodgson’s request for disability
and disability insurance benefits. 	See 20 C.F.R. §§ 404.1520.
After determining that she met the Social Security Act’s insured
status requirements and had not engaged substantial gainful
activity after the alleged onset of her disability on November
15, 2009, see 20 C.F.R. §§ 404.1571 et seq., 416.971 et seq.,
the ALJ analyzed the severity of Hodgson’s impairments. 	At this
second step, the ALJ concluded that Hodgson had the following
severe impairments: personality disorder (borderline),
polysubstance abuse, and post-traumatic stress disorder (PTSD).
(Admin. R. at 34-35).
At the third step, the ALJ found that Hodgson’s severe
impairments did not meet or “medically equal” the severity of
one of the impairments listed in the Social Security
regulations. 	(Id. at 36); see 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, and 416.926.
After reviewing the medical evidence of record, medical
opinions, and Hodgson’s own statements, the ALJ concluded that
Hodgson retained the residual functional capacity (RFC) to
1 The court recounts here only those facts relevant to the
instant appeal. 	The parties’ more complete recitation in their
Joint Statement of Material Facts (Doc. No. 13) is incorporated
by reference.
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perform a full range of work at all exertional levels, but with
the following non-exertional limitations:
She has the ability to understand, remember and carry
out 1-to-3-step instructions during the course of a
normal 8-hour workday and 40-hour work week, with
normal breaks every two hours. 	She can maintain
routine interaction with coworkers and routine
collaboration with supervisors, but her contact with
the public should be limited to brief and routine
interaction.
(Id. at 38).
The ALJ found that, even limited in this manner, Hodgson
would be able to perform her past work as a goat herder. 	In the
alternative, the ALJ found that Hodgson could perform other jobs
that exist in the national economy, such as cleaning and kitchen
help. 	(Id. at 44-46). 	The ALJ accordingly found that Hodgson
was not disabled within the meaning of the Social Security Act
during the relevant time period. 	(Id. at 46); 20 C.F.R. §§
404.1520(f), 416.920(f).
III. Analysis
Hodgson challenges the ALJ’s decision on three grounds: 1)
that the ALJ failed to correctly weigh opinion evidence; 2) that
the ALJ improperly assessed Hodgson’s RFC; and 3) that the ALJ
improperly assessed Hodgson’s credibility with respect to the
severity of her symptoms. 	The court addresses them in turn.
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A. Opinion evidence
Hodgson first argues that the ALJ erred by not properly
weighing her treating psychiatrists’ opinions. 	Under the
relevant regulations in effect at the time Hodgson filed her
claim,
[T]he opinion of a treating source is entitled to
controlling weight if it “is well-supported by
medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the
other substantial evidence in [a claimant's] case
record.” 	20 C.F.R. § 404.1527(c)(2). 	When an ALJ
does not give controlling weight to the opinion of a
treating source, he must still determine how much
weight to give that opinion by considering these
factors: (1) the length of the treatment relationship
and the frequency of examination; (2) the nature and
extent of the treatment relationship; (3) the
supportability of the opinion; (4) the consistency of
the opinion with the record as a whole; (5) the
specialization of the source offering the opinion; and
(6) any other relevant factors. See § 404.1527(c)(2)-
(6). . . . . . Finally, an ALJ must give “good reasons
in [his] decision for the weight [he] give[s] [a
claimant's] treating source's opinion.” 20 C.F.R. §
404.1527(c)(2).”
Crandlemere v. Berryhill, 2017 DNH 192, 16-17.
1. 	Drs. Sowden and McWilliams
Two of Hodgson’s treating psychiatrists, Dr. Gillian Sowden
and Dr. Geraldine McWilliams completed a Mental Medical Source
Statement. 	They rated Hodgson as “seriously limited” (meaning
having noticeable difficulty 11% to 15% of the time). 	They
specifically opined that she would be unable to: 1) “complete a
normal workday and work week without interruptions from
psychologically based symptoms”; 2) “perform at a consistent
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pace without a reasonable number and lengths of rest periods”;
and 3) “get along with coworkers.” 	They also predicted that
Hodgson’s would be unable to meet competitive standards in
accepting supervisors’ instruction and criticism and dealing
with normal work stress. 	Finally, they stated that Hodgson’s
symptoms would likely cause her to miss more than four days of
work per month. 	(Admin. R. at 1306-11).
The ALJ assigned Drs. Snowden’s and McWilliams’s opinion
partial, rather than controlling, weight. 	After he noted that
the RFC reflected the providers’ opinion that Hodgson is
seriously limited in her ability to interact with the general
public and could not handle skilled or semiskilled work, the ALJ
found that their opinions that Hodgson:
would be unable to meet competitive standards for
accepting instructions and criticism, deal with work
stress, travel to unfamiliar places, use public
transportation, and that the claimant would be absent
from work for more than four days per month are
inconsistent with the objective medical records that
show that claimant was taking part time community
college classes, caring for a young child, working
part time, and participating in other activities, and
medical records that indicated only mild limitations.
The claimant reported that she drives and can go out
alone, shop in stores daily, goes to AA/NA meetings
three times per week. (Exhibit B4E, B18E).
(Admin. R. at 44).
Hodgson argues that the ALJ only selectively cited medical
records and she points to evidence she claims conflicts with the
ALJ’s findings. (Clmt. Mem., Doc. 10-1, at 12-14.) 	For example,
she notes reports of having difficulties concentrating, an
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increase in PTSD symptoms and needing emotional and medical
support. (Id. at 13; Admin. R. at 1221-25). 	While such evidence
might be adequate to demonstrate that the ALJ could have reached
other, supportable conclusions, it does not demonstrate that the
ALJ’s assessment of this evidence was unreasonable. 	See Gillen
v. Colvin, 2017 DNH 037, 15-16 (“Claimant’s argument is best
construed as invitation to the court to reweigh the evidence
before the ALJ, but that is an invitation the court must
decline.”)
Ultimately, the ALJ accepted much of Drs. Sowden’s and
McWilliams’s opinion. 	He limited Hodgson to simple, 3-step
tasks with only brief public interaction. 	(Admin. R. at 38).
But he supportably discounted the opinion that she could handle
no work stress, no interaction with supervisors or that would
miss significant time from work. 	Specifically, he noted that
Hodgson “loved” her full-time work at a dairy farm in 2014, and
that she was able to drive, care for her infant child and home,
and perform volunteer work. (Admin. R. at 60-61, 345, 1183,
1029, 1039). 	In addition, the ALJ also supportably found that
Dr. Sowden’s notes indicated only “mild-moderate” mental
limitations. 	(Admin. R. at 1294).
Hodgson also argues that the ALJ improperly considered her
daily activities. 	She asserts that the record shows that she
was unable to complete two community college classes for one
semester, that she needed help with childcare and that her work
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was “unpaid, unsupervised and minimal/ungainful.” 	(Clmt. Mem.
Doc. No. 10-1, at 14). 	But the record also contains evidence
that Hodgson completed two college classes with A’s. 	(Admin. R.
at 338, 1205, 1292, 1294). 	And, as previously noted, she
reported on several occasions that she cared for her child
without serious difficulty (Id. at 344, 1221, 1225, 1259, 1294),
and that she loved her herding job 	at the dairy farm. 	(Id. at
1029, 1039). 	Against this backdrop, the ALJ did what he was
required to do – provide reasons for not giving controlling
weight to Drs. Sowers and McWilliams.
2. Therapist Judith Bush, ACSW
Hodsgson treated with Judith Bush seven times between May
and July 2016. 	Although her treatment notes were not part of
the record, Hodgson did submit Bush’s one-page opinion letter.
(Admin. R. at 1312). 	The AJL did not mention Bush’s letter, in
which she opined that the “combination of her physical
challenges and mental and emotional conditions make it unlikely
that she could sustain focus to perform routine unskilled work
for a full workday.” Id. 	Hodgson argues that the failure to
consider the Bush letter warrants remand. 	See Nguyen v. Chater,
172 F.3d 31, 35 (1st Cir. 1999) (“Findings are not conclusive,
however, if they are derived by ignoring evidence . . . .”); see
also 20 C.F.R. § 416.927(c) (“Regardless of its source, we will
evaluate every medical opinion we receive.”).
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While the Assistant Commissioner agrees that the ALJ should
have mentioned the Bush opinion, (Doc. No. 14-1, at 6), she
argues that remand is unnecessary. 	The Assistant Commissioner
has the better of this argument. 	Ms. Bush’s vague reference to
“sustain[ing] focus” for a full workday is arguably addressed by
the every-two-hour breaks the ALJ included in Hodgson’s RFC. 	In
addition, Ms. Bush’s conclusory assertion that Hodgson “is
qualified to receive disability benefits,” (Admin. R. at 1213),
is an administrative finding reserved to the Commissioner. 	20
C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). 	As such, the ALJ’s
apparent failure to consider the Bush opinion letter is, at
most, harmless error. See Johnson v. Colvin, No. 1:13-cv-406-
DBH, 2014 WL 5394954, at *3 (D. Me. Oct. 21, 2014) (adopting
rep. & rec.) (finding harmless error where ALJ failed to address
a bare conclusion that the claimant could not work, “[a] matter
that is reserved to the commissioner.”).
3. 	Therapist Hyde and state agency consultants
One of Hodgson’s treating therapists, Hilde Hyde, completed
a mental impairment questionnaire in which she opined that
Hodgson would miss about three days of work per month. 	(Admin.
R. at 1301-04). 	Hyde also noted that Hodgson had no more than
mild restrictions in her activities of daily living, moderate
difficulties in maintaining social function and concentration,
persistence and pace, and no episodes of decompensation within
12 months.
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The ALJ assigned Ms. Hyde’s opinion “some weight” because
it was consistent with her treatment notes and other medical
record regarding some exacerbation of Hodgson’s symptoms.
(Admin. R. at 43). 	But the ALJ rejected Ms. Hyde’s conclusion
about workplace absences because that finding was inconsistent
with non-examining state-agency psychological consultants Joseph
Patalano, Ph.D. and Edward Hurley, Ph.D. (Id. at 43), to whose
opinions the ALJ assigned substantial weight.
Hodgson argues that the ALJ should have given more weight
to Hyde’s opinion and less to the state consultants. 	The court
finds no error. 	Hodgson incorrectly asserts that the ALJ failed
to give good reasons for giving only “some weight” to Hyde’s
opinion. 	Initially, the court notes that Hyde is an “other
source” under the applicable Social Security regulations, and
thus the ALJ was not required to give “good reasons” for
assigning weight to her opinion. 	20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). 	Nevertheless, as noted above, the ALJ explained
that Hyde’s opinion with respect to absenteeism was inconsistent
with those of Drs. Hurley and Patalano. 	The state agency
consultants concluded that Hodgson “may have episodic problems
with concentration/pace due to episodic increases in
anxiety/depression . . . which temporarily undermine cognitive
efficiency. 	Otherwise from a psych perspective, can sustain
concentration persistence/pace for 2 hour periods over 8 hour
day through typical work week.” (Admin. R. at 117, 132).
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Hodgson next faults the ALJ for crediting the non-examining
consultants’ expertise in Social Security disability
evaluations. (Id. at 43). 	An ALJ is permitted to rely “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, 2011 DNH 091, 9–10 (citing Tremblay
v. Sec’y of Health and Human Servs., 676 F.2d 11, 12 (1st Cir.
1982)). 	Indeed, the ALJ is “required to consider the opinions
of state agency psychological consultants about the nature and
severity of an applicant's impairments because state agency
consultants ‘are experts in the Social Security disability
programs.’” 	Grant v. Colvin, 2015 DNH 059, 8-9, (quoting SSR
96–6p, Titles II and XVI: Consideration of Administrative
Findings of Fact by State Agency Medical and Psychological
Consultants and Other Program Physicians, 1996 WL 374180, at *2
(S.S.A. 1996)).2
Hodgson further argues that the ALJ improperly used only
conclusory language in explaining why he gave substantial weight
to the consultants’ opinions. (Clmt. Mem., Doc. No. 10-1, at
19). 	It is true, as Hodgson asserts, that “[m]ore than a
2 SSR 96-6P has since been rescinded and replaced, but was
in effect when the ALJ issued his decision. See Social Security
Ruling (SSR) 17-2p: Titles II and XVI: Evidence Needed by
Adjudicators at the Hearings and Appeals Council Levels of the
Administrative Review Process To Make Findings About Medical
Equivalence, 82 FR 15263-02 (Mar. 27, 2017).
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conclusory declaration is necessary, particularly [where] . . .
the opinions of the non-examining physician and claimant's
treating physician are so dramatically different.” 	Mendoza v.
Astrue, 2011 DNH 073, 12. 	But the ALJ did not do that here.
First, the consultants’ opinions were not “dramatically
different” from Hodgson’s own treatment providers. 	The only
significant point of disagreement was whether Hodgson’s
“episodic increases” in symptoms would prevent her from working
in two-hour increments over an eight-hour day. 	The nature of
that difference notwithstanding, the ALJ here did more than
conclusorily state that the consultants’ opinions “are well
supported by . . . the record.” 	Cf. Swanburg v. Astrue, 2012
DNH 071, 17. 	He noted the consultants’ expertise, their
detailed explanations, and the fact that their opinions were, in
large part, consistent with those of Hodgson’s providers with
respect to the mild or moderate nature of her symptoms. 	This is
a sufficient explanation of the ALJ’s reasoning.
In her final assertion of error with respect to the state
agency consultants, Hodgson argues that their opinions cannot be
given substantial weight because they pre-dated, and thus did
not consider, the opinions of Sowden, McWilliams, Hyde and Bush.
(Clmt. Mem., Doc. No. 10-1, at 19-20). 	“A state agency
psychologist's opinion based on a review of an incomplete record
may still constitute substantial evidence as long as the more
recent evidence does not show ‘a sustained (and material)
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worsening in Plaintiff's condition.’” 	Grant, 2015 DNH 059, 10
(quoting Phan v. Colvin, 2014 WL 5847557, at *15 (D.R.I. Nov.
12, 2014)). While the latter providers noted psychological
symptoms, they did not indicate that Hodgson’s overall condition
was worsening. 	In fact, Dr. Sowden concluded that Hodgson’s
abilities were “limited, but satisfactory” in such areas as
maintaining regular attendance and attention for two-hour
periods and working with or in proximity to others. (Admin R. at
1308).
In sum, the court finds that the ALJ’s decision to give
greater weight to the state agency consultants than to Ms. Hyde
is supported by substantial evidence.
B. Claimant’s RFC
Hodgson takes issue with the portion of her RFC finding
that she could “sustain understanding remembering and carrying
out 1 to 3 step instructions during a normal 8 hour workday and
40-hour work week.” 	(Clmt. Mem., Doc. no. 10-1, at 21). 	She
argues that the RFC was not based on substantial evidence
because it was contrary to the opinions concluding that she
would be absent too often to sustain full-time work.
A claimant’s RFC is “not a medical assessment, but instead
is an administrative decision “reserved to the commissioner.”
Brownell v. Berryhill, No. 17-11462-FDS, 2018 WL 3150222, at *11
(D. Mass. June 27, 2018). 	An ALJ is not precluded from
“rendering common-sense judgments about functional capacity
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based on medical findings, as long as [he] does not overstep the
bounds of a lay person's competence and render a medical
judgment.” 	Gordils v. Sec’y of Health & Human Servs., 921 F.2d
327, 329 (1st Cir. 1990).
Here, the ALJ’s RFC acknowledged Hodgson’s limitations by
restricting her interaction with the public and the complexity
of instructions she may be required to follow. 	These
limitations were generally consistent with the bulk of the
opinions provided both by the state agency consultants and
Hodgson’s providers. 	The ALJ was not required to adopt the
providers’ work-absence conclusion. 	See Barrientos v. Sec’y of
Health and Human Servs., 820 F.2d 1, 2–3 (1st Cir.1987)
(permitting the ALJ to resolve an inconsistency between the
medical reports of a treating and non-treating physician in
favor of the non-treating physician). 	The ALJ’s assessment of
Hodgson’s RFC is, therefore, supported by substantial record
evidence.
C. 	Credibility
In rejecting Hodgson’s claim that her mental impairments
were totally disabling, the ALJ found that her statements
concerning the severity of those impairments were not entirely
consistent with other evidence in the record. (Admin. R. at 39).
Hodgson claims that this finding was erroneous. 	The court
disagrees.
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The ALJ is responsible for credibility determinations. 	20
C.F.R. §§ 404.1529, 416.929. The ALJ’s credibility determination
“is entitled to deference, especially when supported by specific
findings.” Frustaglia v. Sec’y of Health & Human Servs., 829
F.2d 192 (1st Cir. 1987). 	Hodgson testified that anxiety and
agitation prevent her from working. (Admin. R. at 39). 	In
finding otherwise, the ALJ properly noted her ability to carry
out activities of daily living, including college attendance,
shopping, housework, driving, caring for her son and doing
volunteer work. 	(Id. at 37, 42). 	The ALJ further noted that
she maintained contact with family members and other employees
and both her volunteer and goat herding positions. (Id. at 37,
39). Finally, the ALJ noted that Hodgson’s treatment providers
generally described good mental functioning in her recent
history, and that Drs. Sowden, Patalano and Hurley all found her
depression to be mild and her limitations no more than moderate.
(Id. at 43).
Although Hodgson accurately cites other records which show
more severe, her claim that the ALJ did not properly consider
them is little more than an invitation to re-weigh evidence,
which the court cannot do. 	Accordingly, the court finds that
the ALJ’s credibility assessment is supported by the record.
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IV. Conclusion
Because the ALJ has not committed a reversible error in
evaluating Hodgson’s claim, her motion for an order reversing
the Acting Commissioner’s decision, (Doc. no. 10), should be
denied; the Acting Commissioner’s motion for an order affirming
her decision, (Doc. no. 14), should be granted; and the clerk of
the court should be directed to enter judgment in accordance
with this order and close the case.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). The 14–day period may be extended upon motion.
Failure to file a specific written objection to the Report and
Recommendation within the specified time waives the right to
appeal the district court’s order. 	See Santos–Santos v. Torres–
Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R. Civ. P.
72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
October 29, 2018
cc: 	Judith Brownlow, Esq.
Janine Gawryl, Esq.
Sarah E. Choi, Esq.
John J. Engel, Esq.
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