Westhaver v. Astrue

Filing 20

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting in part 15 Motion for Order Reversing Decision of Commissioner to the extent that the Commissioners decision is VACATED and REMANDED for further development of the record, a new admin istrative hearing, and any further proceedings consistent with this opinion that may be deemed necessary; denying 18 Motion for Order Affirming Decision of Commissioner (Woodlock, Douglas) (Main Document 20 replaced on 8/26/2011) (Lovett, Jarrett).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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ROGER L. WESTHAVER, JR.,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,
Defendant.

CIVIL ACTION
NO. 09-12032-DPW

MEMORANDUM AND ORDER
August 26, 2011
Roger Westhaver, Jr., appeals the final decision of the
Commissioner of Social Security (the “Commissioner”) denying his
2007 claim for a period of disability and Social Security
Disability Insurance (“SSDI”).
order affirming his decision.

The Commissioner has moved for an
After consideration of the record

before me, I must conclude that the ALJ’s decision was not
supported by substantial evidence.

Accordingly,

I will vacate

the Commissioner’s decision, which rested upon the determination
of Westhaver’s residual functional capacity in the absence of
reliable expert opinion, and remand the case for further
development of the record, a new administrative hearing, and any
additional proceedings that may be deemed necessary.
I. BACKGROUND
A.

Medical History
Westhaver, who was born on November 6, 1965, was in a motor
1

vehicle collision on May 27, 2005.

(R. at 86.)

As a result, he

sustained a posterior fracture dislocation of the left hip, a
left tibial plateau fracture, and a left patella fracture.
at 149.)

He underwent surgery to repair the fractures and

reconstruct his left hip and pelvis on May 27 and May 30.
147–53.)

(R.

(R. at

As he recovered from the surgeries, his range of motion

in the left knee increased from seventy degrees on June 14, 2005,
to 120 degrees by September 13, 2005.

(R. at 142–45.)

During

the same time, he also increased weight bearing, reaching fifty
percent weight bearing with a Bledsoe brace by September 13,
2005, at which point his physician stated that Westhaver could
begin full weight bearing and had no more restrictions as to
strengthening or range of motion.

(R. at 142.)

At the one-year

status appointment, Westhaver had “excellent range of motion,”
“anatomic reduction [wa]s maintained[, t]he joint space [wa]s
normal[, and there was n]o change in position of the hardware [in
the hip].”

(R. at 140.)

Westhaver, however, did report

continued lower back pain.

(R. at 140–41, 172.)

Due to the 2005 injuries, Westhaver could not resume working
as a pressman for the Boston Herald.

(R. at 22.)

Although he

reported that he subsequently tried to work as a plumber’s
assistant, he could not continue because of the pain.
22.)

(R. at

The records contain reports of sporadic employment as a

construction laborer doing odd jobs, but with no consistency.
2

1.

Physical Impairments

Westhaver has a long history of treatment for hip and knee
pain.

Following his 2005 injuries, he was prescribed the

narcotic painkiller percocet.

(R. at 172–78.)

At that time his

primary care physician was Dr. Guy Spinelli, whose office
recorded a number of emergency and office visits at which
Westhaver complained of pain in his knee and hip and requested
pain medication.

(R. at 155–78.)

On November 30, 2006, he

requested additional painkillers, was given percocet, and was
told of concerns regarding his continued use of narcotic
painkillers and possible addiction.

(R. at 170–71.)

The record indicates that Westhaver again sought medical
assistance in August 2007, when he began treatment for knee pain
at the Quincy Medical Center Pain Clinic.

(R. at 381–403.)

An

MRI on August 14, 2007, revealed a complex tear in the medial
meniscus of his right knee.

(R. at 402.)

On August 22, 2007,

Westhaver presented with knee pain at the emergency room, was
given percocet, and was told to follow up with an orthopedist.
(R. at 399–401.)

At that time, he was limping and using crutches

due to the left knee and hip injuries but had a normal range of
motion.

(R. at 399.)

The examining doctor questioned whether

the current right knee pain was due to overuse in compensation
for the left knee and hip.

(R. at 399.)

After missing an

appointment with the orthopedist, Westhaver again visited the
3

emergency room on September 1, 2007. (R. at 39–98.)
motrin and instructions to see the orthopedist.

He was given

(R. at 398.)

On October 3, 2007, Westhaver underwent a right knee
arthroscopy, partial medial meniscectomy, and a patellofemoral
chondroplasty to address a right knee medial meniscal tear and
patellofemoral chondromalacia.

(R. at 393–95.)

An MRI and x-

rays taken January 24, 2008, revealed that three injured areas —
left hip, left knee, and right knee — were healing well.
385–87.)

(R. at

However, there was evidence of “moderately severe

degenerative disease of the left hip with mild superior joint
space narrowing.”

(R. at 386.)

Westhaver’s right knee continued to cause him pain, and he
visited Manet Community Health Center three times — on December
11, 2007, January 24, 2007, and February 8, 2007 — seeking
percocet or other painkillers.

(R. at 328–35.)

On February 19,

2008, an orthopedist at Quincy Medical Center concluded that he
was a “poor candidate for interventional pain and/or neuropathic
medications.”

(R. at 382.)

Although he continued to complain of

chronic right knee pain and was guarding his knee and walking
with an antalgic gait, he had a “good range of motion of the
knee.”

(R. at 382.)

The othopedist recommended that he seek a

second opinion “to see if he has something anatomically fixable
as he has [no] signs of neuropathic pain at this juncture.”
at 382.)
4

(R.

At this point, Westhaver changed his primary care physician
to Dr. Barbara Masley at Harvard Vanguard Medical Associates,
where he began consulting with a pain management specialist, Dr.
Harriet Scheft, and an orthopedist, Dr. Louis Bley.

(R. at 378.)

After an initial consultation on March 19, 2008, Dr. Bley
remarked that he was “somewhat at a loss as to explain his pain.”
(R. at 372–75.)

On April 16, 2008, Dr. Bley examined a December

2007 MRI revealing no evidence of a new tear in the right knee
but noted some articular chondral fissuring on the undersurface
of the kneecap.

(R. at 369.)

He noted that Westhaver requested

narcotics on this occasion and at the initial evaluation.
369.)

(R. at

He gave Westhaver the first of a series of three synvisc

injections in the right knee.

(R. at 369.)

One week later, Dr.

Bley discussed with Westhaver concerns regarding the “multitude
of complaints, which are different from last visit to this
visit,” making meaningful analysis difficult.

(R. at 366–68.)

Dr. Bley also observed that Westhaver walked with a heel-to-toe
gait with no marked antalgia and that his range of motion was
symmetric side to side.

(R. at 367.) On May 2, 2008, Westhaver

received his third synvisc injection from Dr. Bley, who observed
that Westhaver “appears to ambulate quite freely.”

(R. at 363.)

Dr. Bley stated that he was “skeptical that [he is] going to be
able to provide him a dramatic relief of his symptoms.

I think

he has multifactorial problems including some somatic and some
5

psychological.

He is clear to continue his activities as

tolerated from an orthopedic perspective.”

(R. at 363.)

Westhaver did not see Dr. Bley again until July 18, 2008, when
Dr. Bley determined that Westhaver “has some chondromalacia of
his knees bilaterally, [but] otherwise is quite functional.”

(R.

at 341.)
Dr. Scheft’s pain management treatment was similarly
unsuccessful.

At her initial consultation, she noted that

Westhaver had a history of alcohol abuse, though he had been
sober for sixteen years, and had some history of cocaine use.
(R. at 375–78.)

On March 24, 2008, she prescribed tramodol but

would not provide an open-ended opiod prescription due to past
addictions.

(R. at 371–72.)

After the synvisc injections failed

to provide relief, on May 8, 2008, Dr. Scheft prescribed 15mg of
morphine for one month and again discussed the risks of opiod
addiction.

(R. at 361.)

On May 22, 2008, Westhaver told Dr.

Scheft that the morphine relieved the pain and that “he has been
able to work without problem.”

(R. at 359.)

He visited the emergency room on June 1, 2008, however,
seeking morphine because his hip and knee hurt after helping a
friend move and he was out of morphine medication.

(R. at 355.)

Dr. Masley, the examining physician, observed that he appeared to
be in no acute distress, had full range of motion in the neck and
trunk, full range of motion with some pain in the hip and knee,
6

and had full strength in the lower extremities.
He was given percocet and naprosyn.

(R. at 354–58.)

(R. at 358.)

On June 5,

2008, Dr. Scheft told Westhaver she would only prescribe two
weeks worth of opiods at a time.

(R. at 352–54.)

On June 25, 2008, Westhaver was in another motor vehicle
accident.

(R. at 349.)

He presented at the scene with pain in

his head, neck, and lower back but “all extremities [exhibited]
full range of motion.”

(R. at 351.)

He received percocet and

was released from the emergency room.

(R. at 352.)

On July 2,

2008, Dr. Scheft reminded Westhaver that his treatment with
opiods would be “time limited” and discussed “working at job not
requiring excessive stress on his knee and hip, and utilizing
non-opiod meds — he really has not made much of an effort to do
any of it during the time [they] ha[d] been working together.”
(R. at 346.)

She also reported: “I do not recommend continuing

him on chronic opiod therapy.

I do want to continue to follow

him for mood and impulse control disorders and non-opiod
[treatment] for pain.” (R. at 346.)

On August 7, 2008, Dr.

Scheft recorded that Westhaver was not taking the prescribed
naprosyn (for pain) or Wellbutrin (for depression) and had
received a morphine prescription from Dr. Masley, “which he knows
I do not agree with.”

(R. at 337.)

She also reported that

Westhaver “wants to stop coming to see me.

7

Doesn’t think I

understand the problems and depressed mood he is experiencing.”
(R. at 337.)
On August 26, 2008, Westhaver sought help from Dr. Robert
DiTullio regarding pain in his lower back sustained in the June
25, 2008, motor vehicle collision.

(R. at 495.)

Dr. DiTullio’s

medical history notes the 2005 accident, continuing pain in his
left hip and right knee, and a previous hepatitis C diagnosis.
(R. at 495.)

Although Dr. DiTullio’s writing is difficult to

read, it appears he concluded that Westhaver is “totally disabled
from work.”

(R. at 495.)

After a second visit on September 16,

2008, and after receiving the results from a September 22, 2008,
MRI, Dr. DiTullio diagnosed Westhaver with L4–L5 [herniated
discs] and “mild to mod[erate] central sp[inal] stenosis” and
“L5-S1 small central and right [herniated discs] contacting both
S1 n[erve]-roots.”

(R. at 493.)

Dr. DiTullio saw Westhaver once

more, on October 21, 2008. (R. at 493.)
Around the same time, Westhaver changed his primary care
physician to Dr. Jonathan Parr at Brigham & Women’s Hospital.
(R. at 424–26.)
pain.

There he continued to seek treatment for chronic

He presented at urgent care on September 15, 2008,

complaining of pain in his left hip.

(R. at 424–26.)

He told

the attending physician that he had been prescribed morphine and
percocet in August, and, after confirming with Harvard Vanguard,
the physician renewed his prescriptions for one month.
8

(R. at

424–26.)

The physician also noted that there was “[n]ot much”

restriction of movement, full range of motion in both knees, and
“[n]o obvious tenderness.”

(R. at 424–26.)

Dr. Parr examined

Westhaver on September 29, 2008, noting depression, chronic
pain, but “full [range of motion], normal strength
bilaterally[, n]ormal sensation to light touch bilat LE[, and
n]egative straight leg raise bilaterally.”

(R. at 418.)

Dr.

Parr interpreted a recent pelvis x-ray as showing mild
osteoarthritis of both hips and a calcified lesion overlying the
left coccyx.

(R. at 419.)

He indicated that he would continue

the morphine and tramadol prescriptions at the next renewal. (R.
at 419.)
By October 30, 2008, Dr. Parr began expressing a desire to
switch Westhaver to a non-opiod pain-management program.
443.)

(R. at

On November 14, 2008, a toxicology report revealed that

Westhaver was not taking the prescribed tramadol and morphine,
but had taken oxycodone.

(R. at 437.)

He was prescribed pain

patches and a psychiatric evaluation to determine whether he
should remain on opiods.

(R. at 437.)

On November 24, 2008, Dr.

Parr began transitioning Westhaver off opiods.

(R. at 435.)

On November 7, 2008, Dr. Gregory Brick, an orthopedic
surgeon, examined Westhaver.

(R. at 440–42.)

Westhaver

complained of left hip pain and reported “only some lower back
pain and no radiation of the pain or no numbness into the lower
9

extremities.”

(R. at 440.)

A comparison of x-rays of the lumbar

spine showed “some degenerative changes . . ., L4–L5, L5–S1 with
some mild disk degeneration” and a hip x-ray “showed mild
arthritis.”

R. at 441.)

Dr. Brick concluded: “We do not think

he has major pain coming from the hip currently and no surgical
intervention is rendered at the time.”
2.

(R. at 441.)

Mental Impairment

The first reports of Westhaver’s depression appear in 2006.
(R. at 155–78.)

One of Dr. Spinelli’s colleagues prescribed

antidepressants (Celexa) on March 2, 2006, when Westhaver
presented with depression and anxiety due to trouble with his
marriage.

(R. at 168–69.)

Following this visit, Dr. Spinelli

continued to monitor Westhaver’s depression, at one point
changing his prescription to bupropion, until October 2006.

(R.

at 155–65.)
The next evidence in the record of depression occurs in Dr.
Scheft’s notes of a July 22, 2008, visit, when Westhaver reported
depressive symptoms due to a breakup with his girlfriend,
frustration with pain, and inability to find a job.
339–40.)

(R. at

He was prescribed the antidepressant Wellbutrin.

(R.

at 339–40.)
Westhaver visited urgent care at Brigham & Women’s Hospital
on September 18, 2008, reporting that he was “overwhelmed,” and
noting a number of “real-world” problems.
10

(R. at 423.)

He began

seeing a social worker and reported anxiety and depression due to
financial, family, and legal problems.

(R. at 416–17, 421–22.)

The social worker reported on September 30, 2008, that Westhaver
was “scattered,” “very distressed,” and “unable to focus and
forgot what he was supposed to do” regarding his legal
proceedings.

(R. at 416.)

Although he was not taking the

prescribed Wellbutrin at the time, he was at some point switched
to Celexa.
3.

(R. at 419, 435.)

Medical Opinions

There are few comprehensive medical opinions in the record.
Rather, the bulk of the record consists of visit reports and MRI
and x-ray results.
In a letter dated November 9, 2006, Dr. Spinelli (at the
time, Westhaver’s primary care physician) stated that, as a
result of the 2005 injuries, Westhaver “is permanently unable to
do his job at the Boston Herald.

Currently, he has pain and

limited mobility in the left hip and knee and these disabilities
prevent him from doing his job which requires lifting, and other
labor intensive activities.”

(R. at 231.)

On June 20, 2007, Dr. Sumner Stone completed a DSS
psychiatric assessment based on a review of the record as it was
at that time.

(R. at 313–25.)

He concluded that there was

insufficient evidence to determine whether there was a medical
impairment.

(R. at 313.)

In his brief notes, he observed that
11

depression appeared in the medical records, but that Westhaver
failed to appear at two scheduled consultative examinations, one
medical and one psychiatric.

(R. at 325.)

Dr. DiTullio wrote two letters, dated September 29, 2008,
and October 16, 2008, in which he stated that Westhaver is
“totally disabled from gainful employment” due to radiculopathy
and herniated discs at L4–L5 and L5–S1 that are “evident
clinically and by MRI.”

(R. at 490–91.)

These injuries arose,

he reported, from a motor vehicle accident on June 24, 2008.

(R.

at 490.)
Dr. DiTullio also completed a two-page residual functional
capacity (“RFC”) evaluation on January 25, 2009, as amended
January 27, 2009.

(R. at 500–01.)

On the first page, in a

series of checklists, Dr. DiTullio indicated that Westhaver could
sit, stand, and walk each for a total of one hour per day; could
occasionally lift and carry six to ten pounds; cannot push or
pull arm or leg controls; could occasionally bend and reach but
cannot squat, crawl, or climb; and had moderate environmental
limitations.

(R. at 500.)

He gave no analysis and cited to no

objective medical evidence other than his diagnosis of L4–L5
herniated discs with “mild to moderate central spinal stenosis”
and “L5–S1, herniated discs contacting both S1 nerve roots.”
at 501.)

(R.

Dr. DiTullio observed that depression aggravated the

presence of pain but did not reference any pain in or medical
12

history of fractures of the hip or knees.
concluded that Westhaver was disabled.
B.

(R. at 501.)

He

(R. at 501.)

Procedural History
On February 17, 2007, Westhaver filed an application for a

period of disability SSDI claiming disability beginning May 27,
2005.1

(R. at 86.)

Following the accident, Westhaver received

long term disability insurance until September 2006.

(R. at

22–23, 86.)
The state agency and Federal Reviewing Officer issued
decisions unfavorable to Westhaver on June 22, 2007, and July 16,
2008, respectively.

(R. at 53, 42–49.)

Both decisions noted

that Westhaver had failed to attend scheduled and/or requested

The application actually seeks “a period of disability
and/or all insurance benefits for which I am eligible under Title
II and Part A of Title XVIII of the Social Security Act.” (R. at
86.) The application further states: “I became unable to work
because of my disabling condition on May 27, 2005. I am not
still disabled. My disability ended in September 2006. . . . I
do not want to file for SSI.” However, Westhaver, the Social
Security Administration, and the Administrative Law Judge all
appear to have proceeded as if Westhaver is seeking SSDI and is
currently disabled. In fact, the medical evidence cited by the
ALJ in his decision almost exclusively addresses Westhaver’s
impairments as of 2008 and the testimony of Westhaver and the
vocational expert also address his current condition and
capabilities. (R. at 10, 13–15.) This apparent anomaly is
likely due to the fact that the torn meniscus procedure on
Westhaver’s right knee (October 3, 2007) and the motor vehicle
accident that triggered his lower back pain (June 25, 2008) took
place after Westhaver applied for a period of disability.
Because I will remand this case on other grounds, I need only
highlight the discrepancy here and will proceed as did the
parties on the basis that Westhaver seeks disability benefits for
the period beginning May 27, 2005, and thereafter.
1

13

medical and psychiatric consultative examinations.

(R. at 53,

46, 48.)
1.

Hearing Testimony

A hearing was held before an Administrative Law Judge
(“ALJ”) on May 11, 2009.

(R. at 20.)

With respect to the extent

of his current pain, Westhaver testified that his knee and hip
were still painful, always “achy,” and sometimes “stabbing.”
at 24.)

(R.

He also reported that, following the June 2008 accident,

he had discomfort in his neck and a “dull pain” or “constant
pressure” in his low back.

(R. at 25.)

In order to relieve the

pain, Westhaver stated that he moves around a lot during the day,
changing positions, going for walks, and, every couple of days,
must lay down on the ground for approximately fifteen minutes.
(R. at 26–27.)

He also takes pain medication.

(R. at 29.)

He

testified that he could sit or stand for approximately twenty
minutes at a time, finds bending and going up stairs difficult,
and can grab and lift things that are not too heavy.
He uses a cane to walk when necessary.

(R. at 33.)

(R. at 32.)
Westhaver

also stated that he still feels depressed and anxious, although
he does socialize occasionally.

(R. at 29–30.)

The ALJ posed three hypothetical questions to the vocational
expert, Ruth Baruch.

(R. at 36–38.)

First, he asked:

Please consider a hypothetical individual whose age
ranges from 40 to 43. Possessing a GED, and three
years of . . . community college. The same training
and work experience as Mr. Westhaver. Exertional
14

impairment puts him into the light exertional level.
And the following nonexertional impairments that he may
only occasionally climb, balance, stoop, kneel, crouch
or crawl. And that as a result of his depression, he
should not be in a job requiring frequent contact with
the public. . . . [In] the world of unskilled work.
. . . At either the light or sedentary level.
(R. at 37–38.)

Ms. Baruch listed four existing jobs — inspector,

hand packager, bench assembler, and mail sorter — that such an
individual could perform.

(R. at 38.)

Next, Ms. Baruch

confirmed that if one were to assume Dr. DiTullio’s RFC
assessment were accurate, Westhaver would be unable to work.
at 39.)

(R.

Ms. Baruch also concluded that, assuming Westhaver’s

testimony was entirely credible, he would not be able to work.
(R. at 39.)
2.

The ALJ’s Decision

On June 16, 2009, the ALJ issued an opinion unfavorable to
Westhaver.

(R. at 7.)

He found that Westhaver had not engaged

in substantial gainful employment since the alleged onset date of
May 27, 2005.

(R. at 9–10.)

He found three medically

determinable severe impairments: residual fractures in the hip
and knee, depression, and substance abuse.

(R. at 10.)

Although

there was no “formal evaluation by a psychiatrist or psychologist
leading to any diagnosis or treatment” in the record, “based on
claimant’s testimony as well as his history of medical trauma and
the medical record that mentions some difficulty (albeit without
making a specific diagnosis), the [ALJ] grant[ed] the claimant
15

the benefit of the doubt and f[ound] that he has some symptoms
that in conjunction with his chronic pain and the effects of
treatment could constitute ‘severe’ impairment.” (R. at 11.)
The ALJ next found that none of the identified severe
impairments met or medically equaled one of the impairments
listed in 20 C.F.R. Part 404, Subpart P, App. 1.

(R. at 10.)

In

considering whether Westhaver’s depression was severe, the ALJ
considered the “paragraph B” criteria listed in 20 C.F.R.
§ 404.1520a(b) and found no restriction of daily activities;
moderate difficulties in social functioning causing “some
difficulty [sic] frequent contact with the general public”;
moderate difficulties in concentration, persistence, or pace; and
no episodes of decompensation of extended duration.

(R. at 12.)

The ALJ concluded that Westhaver’s difficulties with
concentration, pace, or persistence “could cause moderate
limitations on the claimant’s ability to understand, remember or
carry out detailed instructions,” but that Westhaver “retains the
capacity to sustain attention for extended (two-hour) periods and
to keep to a regular work schedule.”

(R. at 12.)

The ALJ next determined that Westhaver retains the RFC to
perform light work “except that the claimant should not have to
more than occasionally balance, stoop, kneel, crouch or crawl[,
and] as per his assertions, must avoid frequent contact with the
general public.”

(R. at 12.)

In determining the RFC, the ALJ
16

relied on his analysis of the paragraph B factors, the medical
records, and Westhaver’s testimony regarding his pain and how
long he could sit, stand, and walk.

(R. at 13.)

He concluded

that Westhaver was a “sincere witness,” but “his assertions, when
viewed in the context of the specific objective signs, symptoms
and laboratory findings, cannot be accepted as credible to the
extent alleged.”

(R. at 13.)

Thus, in determining the RFC, the ALJ relied heavily on the
2008 medical reports of the treating and examining physicians at
Brigham & Women’s Hospital.

(R. at 13.)

He noted that these

physicians stated that Westhaver “had no limitations with respect
to range of motion or any focal deficits with respect to
strength, sensation or reflexes” and no “spasm or significant
tenderness.”

(R. at 13.)

The ALJ also noted that radiographic

reports showed that there was only “mild arthritis in the hips
and mild degenerative changes in the lumbar spine.”

(R. at 13.)

Because Dr. DiTullio’s report, stating that Westhaver is totally
disabled, was inconsistent with the Brigham & Women’s Hospital
physicians’ notes, the ALJ rejected Dr. DiTullio’s conclusions
regarding Westhaver’s disability and functional limitations.

(R.

at 13.)
Given this RFC, the ALJ found that Westhaver could not
perform his past work of laborer, pressman, or plumber’s
assistant, which all required medium to very heavy work.
17

(R. at

14.)

The ALJ then examined Westhaver’s age, education, and the

abovementioned RFC to determine that Westhaver could perform some
light work but his “ability to perform all or substantially all
of the requirements of this level of work has been impeded by
additional limitations.”

(R. at 14.)

He relied on the

vocational expert’s responses to his hypotheticals posed during
the hearing to determine “the extent to which these limitations
erode the unskilled light occupational base.”

(R. at 14.)

He

adopted the vocational expert’s opinion that Westhaver could
perform the work of inspector, hand packager, bench assembler,
and mail sorter.

(R. at 14–15.)

Westhaver “not disabled.”

Consequently, the ALJ found

(R. at 15.)

The decision of the ALJ

became final decision of the Commissioner.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I may enter a judgment “affirming,
modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a
rehearing.”

In undertaking this review, the Commissioner’s

factual findings are treated as conclusive so long as they are
“supported by substantial evidence.”

42 U.S.C. § 405(g).

Thus,

I must 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.”

18

Ortiz v. Sec’y of Health &

Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam)
(citation omitted).
Although I must defer to the ALJ’s credibility findings
“even if the record arguably could justify a different
conclusion,” Rodriguez Pagan v. Sec’y of Health & Human Servs.,
819 F.2d 1, 3 (1st Cir. 1987) (per curiam) (citation and
quotation marks omitted), I “may review conclusions of law . . .
and invalidate findings of fact that are ‘derived by ignoring
evidence, misapplying the law, or judging matters entrusted to
the experts.’”

Musto v. Halter, 135 F. Supp. 2d 220, 225 (D.

Mass. 2001) (quoting Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.
1999) (per curiam))(additional citations omitted).
III. DISCUSSION
An individual is disabled if he is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which 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.”

42 U.S.C.

§ 423(d)(1)(A).
The Social Security Administration (“SSA”) has established a
five-step sequential inquiry to determine whether a claimant is
disabled and thereby eligible for disability benefits.
C.F.R. §§ 404.1520.

See 20

The ALJ must determine (1) whether the

claimant is engaged in substantial gainful activity; (2) whether
19

the claimant has a severe impairment or a combination of
impairments that is severe; (3) whether the impairment or
impairments fall within the listings in 20 C.F.R. Part 404,
Subpart P, App. 1; (4) if the impairment or impairments do not
fall within the listings, whether the claimant has the residual
functional capacity to perform past relevant work; and (5)
whether the impairment prevents the claimant from doing any other
work considering the claimant’s RFC, age, education, and work
experience.

Id.

In making this determination, the ALJ must

consider the record as a whole, but is “not at liberty to
substitute his own impressions of an individual’s health for
uncontroverted medical opinion.”

Carillo Marin v. Sec’y of

Health & Human Servs., 758 F.2d 14, 16 (1st Cir. 1985) (per
curiam).
An individual seeking disability benefits “bears the initial
burden of establishing through credible evidence, that he was
disabled within the meaning of the Social Security Act.”

Musto,

135 F. Supp. 2d at 220; see also Goodermote v. Sec’y of Health &
Human Servs., 690 F.2d 5, 7 (1st Cir. 1982).

However, at step 5

of the inquiry, “the burden shifts to the Secretary to show the
existence of other jobs in the national economy that the claimant
can nonetheless perform.”

Sherwin v. Sec’y of Health & Human

Servs., 685 F.2d 1, 2 (1st Cir. 1982).

20

The ALJ here found that

Westhaver’s claim failed at this last step, where the ALJ bears
the burden.
Westhaver appeals the ALJ’s decision, arguing that it was
not supported by substantial evidence because: (1) the ALJ
improperly discounted the only RFC assessment in the record and,
consequently, determined the RFC based on his own lay
interpretation of the raw medical evidence, and (2) the ALJ
relied on the opinion of a vocational expert that was based on an
erroneous hypothetical.
C.

The ALJ’s RFC Determination
Westhaver argues that the ALJ’s RFC determination was

improper because he disregarded the uncontroverted opinion of Dr.
DiTullio — the only RFC evaluation in the record — and instead
based his RFC on his own analysis of the medical evidence.
Westhaver further maintains that, if the ALJ found Dr. DiTullio’s
evaluation unsubstantiated, the ALJ had a duty to contact Dr.
DiTullio to further investigate the discrepancies in the record.
After reviewing the ALJ’s decision and the record, I must
conclude that although the ALJ did not err in disregarding Dr.
DiTullio’s brief and conclusory RFC assessment, the ALJ’s own RFC
assessment was not itself based on substantial evidence.
1.

Assessing RFC at Step 4

In step 4 of the five-step analysis, the ALJ must “consider
[his] assessment of [the claimant’s] residual functional capacity
21

and . . . past relevant work” to determine whether the claimant
can still perform his past work.

20 C.F.R. § 414.1520(e)(4)(iv).

“RFC is an administrative assessment of the extent to which an
individual’s medically determinable impairment(s), including any
related symptoms, such as pain, may cause physical or mental
limitations or restrictions that may affect his or her capacity
to do work-related physical and mental activities.”

Ruling 96-

8p, Titles II and XVI: Assessing Residual Functional Capacity in
Initial Claims, 1996 WL 374184, at *2 (S.S.A. July 2, 1996).

The

RFC represents “not the least an individual can do despite his or
her limitations or restrictions, but the most.”

Id. at *1.

An

ALJ assesses RFC “based on all of the relevant evidence in the
case record, including information about the individual’s
symptoms and any ‘medical source statements’ — i.e., opinions
about what the individual can still do despite his or her
impairment(s) — submitted by an individual’s treating source or
other acceptable medical sources.”

Id. at *2.

If the ALJ’s RFC assessment used in step 4 of the inquiry is
not supported by substantial evidence, the ALJ cannot meet his
burden on step 5 because the vocational expert’s conclusion that
Westhaver could perform jobs existing in the national economy
would then be based on an unsupported RFC.

See Coggon v.

Barnhart, 354 F. Supp. 2d 40, 61 (D. Mass. 2005) (“In order to
rely on a vocational expert’s testimony, a hearing officer must
22

base her hypothetical on a substantially supported assessment of
the claimant’s functional limitations.” (citing Rose v. Shalala,
34 F.3d 13, 19 (1st Cir. 1994))).
2.

Dr. DiTullio’s Medical Opinion and RFC Assessment

Westhaver correctly points out that the SSA “[g]enerally
. . . give[s] more weight to opinions from [a claimant’s]
treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s).”
20 C.F.R. § 404.1527(d)(2).

However, “[w]hen a treating doctor’s

opinion is inconsistent with other substantial evidence in the
record, the requirement of ‘controlling weight’ does not apply.”
Shaw v. Sec’y of Health & Human Servs., 25 F.3d 1037, 1994 WL
251000, at *3 (1st Cir. 1994) (per curiam); see also Green v.
Astrue, 588 F. Supp. 2d 147, 154 (D. Mass. 2008) (“[T]he hearing
officer may choose not to give [a treating physician’s medical
opinion] controlling weight if the hearing officer finds that it
is inconsistent with other substantial evidence in the record.
”).
Moreover, a treating physician’s conclusion regarding
disability or RFC (as opposed to, e.g., conclusions on functional
limitations), cannot be controlling because that is an ultimate
decision reserved for the Commissioner.

See 20 C.F.R.

§ 404.1527(e)(1)–(2) (“Opinions on some issues, such as [opinions
23

that a claimant is disabled and RFC], are not medical opinions
. . ., but are, instead, opinions on issues reserved to the
Commissioner.”); Ruling 96-5p, Titles II and XVI: Medical Source
Opinions on Issues Reserved to the Commissioner, 1996 WL 374183,
at *2 (S.S.A. July 2, 1996) (“[T]reating source opinions on
issues that are reserved to the Commissioner are never entitled
to controlling weight or special significance.”).

Dr. DiTullio’s

letter opinions were brief — no more than five sentences each —
and simply listed the diagnoses and a statement that Westhaver
“is totally disabled from any gainful employment.”

Such a

conclusory statement on disability is not entitled to any
deference.

See Shaw, 1994 WL 251000, at *2 (“[The] report

carried the prediction of ‘total disability’ into the statutory
period, but did not specify any functional limitation.

Viewed as

a mixed legal-medical conclusion, it was not binding on the ALJ.”
(citing 20 C.F.R. § 404.1527(d)(2))).

Thus, “[t]o the extent

that [Dr. DiTullio’s] opinion is urged as reflecting an answer to
the statutory question, it was not binding on the ALJ.”

Id. at

*6 n.3 (summarizing 20 C.F.R. § 404.1526(e)(1)).
When a treating physician’s medical opinion or RFC
assessment is not entitled to controlling weight, the ALJ must
next assess the probative value of the opinion by considering a
number of statutory factors: “(1) length of the treatment
relationship and the frequency of examination; (2) nature and
24

extent of the treatment relationship; (3) supportability; (4)
consistency; and (5) specialization.”

Conte v. McMahon, 472 F.

Supp. 2d 39, 48 (D. Mass. 2007) (citing 20 C.F.R.
§ 404.1527(d)(2)).
The ALJ here observed that Dr. DiTullio’s assessment was
inconsistent with those of the Brigham & Women’s Hospital
treating physicians, who found little restriction in movement or
strength.

(R. at 13.)

The ALJ also noted that the assessment

was inconsistent with Dr. DiTullio’s own interpretation of the
MRI (the only objective evidence cited by Dr. DiTullio in support
of his assessment), which he concluded showed only mild to
moderate disc herniation.

(R. at 13.)

The ALJ’s conclusion is

supported by the reports of the Brigham & Women’s Hospital
physicians and especially the two November 2008 reports by
examining physicians who specifically assessed Westhaver’s lower
back pain.

(R. at 437–42.)

Dr. Brick, an orthopedic surgeon,

reported Westhaver “only has some lower back pain and no
radiation of the pain or no numbness into the lower extremities”
and concluded that an MRI revealed “some mild disk degeneration.”
(R. at 440.)

This is sufficient evidence to support a decision

to give Dr. DiTullio’s opinions little weight.
Moreover, Dr. DiTullio’s RFC assessment only addressed his
lower back pain, which, in any event, the ALJ did not find to be
a severe impairment in step 2.

Dr. DiTullio noted that
25

depression aggravated the lower back injury, but did not mention
the hip or knee pain in the RFC assessment.

(R. at 501.)

Nor

did he provide any reasoning or analysis for the identified
functional limitations.

(R. at 500–01.)

Dr. DiTullio saw

Westhaver only four times over the span of one month, according
to the record, and provided no analysis of the hip and knee
injuries that purportedly underlie Westhaver’s disability claim.
He did not conduct a mental RFC assessment.

Consequently, even

though it is the only RFC assessment as such in the record, Dr.
DiTullio’s assessment cannot be considered sufficient to support
a finding of disability.
Thus, the ALJ’s decision to give Dr. DiTullio’s RFC
assessment and brief letters little weight is supported by
substantial evidence.

However, by disregarding Dr. DiTullio’s

RFC assessment, the ALJ disregarded the only expert RFC
assessment — however incomplete — in the record.
3.

The ALJ’s RFC Assessment

While an ALJ may make determinations regarding credibility,
“the ALJ [i]s simply not qualified to interpret raw medical data
in functional terms.”

Nguyen, 172 F.3d at 35; see also Berrios

Lopez v. Sec’y of Health & Human Servs., 951 F.2d 427, 430 (1st
Cir. 1991) (per curiam) (“Since bare medical findings are
unintelligible to a lay person in terms of residual functional
capacity, the ALJ is not qualified to assess claimant’s residual
26

functional capacity based on the bare medical record.”).

The

First Circuit “h[as] held, accordingly, that where an ALJ reaches
conclusions about claimant’s physical exertional capacity without
any assessment of residual functional capacity by a physician,
the ALJ’s conclusions are not supported by substantial evidence
and it is necessary to remand for the taking of further
functional evidence.”

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

958 F.2d 445, 446–47 (1st Cir. 1991) (per curiam) (citations
omitted).

This principle also has been extended to mental RFC

determinations.

See Roberts v. Barnhart, 67 Fed. App’x 621,

622–23 (1st Cir. 2003) (per curiam).
There is a narrow exception to the requirement of a reliable
expert functional assessment: “[W]here the medical evidence shows
relatively little physical impairment, an ALJ permissibly can
render a commonsense judgment about functional capacity even
without a physician’s assessment.”

Manso-Pizarro v. Sec’y of

Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996) (per
curiam); see also Gordils v. Sec’y of Health & Human Servs., 921
F.2d 327, 329 (1st Cir. 1990) (per curiam) (holding that the
hearing officer is not precluded from rendering “common-sense
judgments about functional capacity based on medical findings, as
long as [he] does not overstep the bounds of a lay person’s
competence and render a medical judgment”).

Thus, “[i]f th[e]

evidence suggests a relatively mild physical impairment posing,
27

to the layperson’s eye, no significant exertional restrictions,
then [the court] must uphold the ALJ’s finding; elsewise, [the
court] cannot (in the absence of an expert’s opinion).”

Manso-

Pizarro, 76 F.3d at 17–18.
The Commissioner argues that this exception applies to
Westhaver’s case.

I cannot agree.

The medical record

demonstrates a complex interplay of both physical and mental
limitations, as the ALJ himself recognized in his decision.

The

record suggests that there are significant exertional limitations
with respect to weight bearing, bending, sitting, walking, and
lifting.

Accordingly, the ALJ made specific findings regarding

the amount of weight Westhaver can lift (light work) and the
amount of time he could work without rest (2 hours).

These

conclusions require more than a layperson’s capabilities.

See

Gordils, 921 F.2d at 329 (“Although we think it permissible for
the Secretary as a layman to conclude that a ‘weaker back’ cannot
preclude sedentary work, we would be troubled by the same
conclusion as to the more physically demanding light work.”);
Coleman v. Astrue, 726 F. Supp. 2d 36, 46 n.7 (D. Mass. 2010)
(“It would blur the line between common sense and medical
judgment to decipher the lengthy medical record, rampant with
numerous doctor’s notations, to determine that [the claimant] is
capable of frequently lifting ten pounds of weight and walking
and standing a great deal.”).

Westhaver did not present
28

uncomplicated symptoms from which the ALJ could interpret
functionality without expert assistance.
To the extent that the ALJ relied on physicians’
observations regarding Westhaver’s range of motion, strength, and
lack of suitability for surgical intervention, those observations
were raw medical data and not functional assessments.

See

Staples v. Maine, No. 09-440-P-S, 2010 WL 2680527, at *3 (D. Me.
June 29, 2010), aff’d by, 2010 WL 2854439 (D. Me. July 19, 2010)
(“The [ALJ] essentially rejected all of these expert
reports. . . .

Thus, in essence, she crafted the finding of the

plaintiff’s mental RFC from the raw treatment and assessment
evidence of record. . . .

Her mental RFC finding accordingly was

unsupported by substantial evidence.”).
There is also evidence of nonexertional limitations such as
Westhaver’s apparent chronic pain, which the ALJ barely
addressed, chronic opiod use, and “severe” depression.

The ALJ

made a detailed mental RFC assessment, but it “cannot be traced
to, and is unsupported by, any medical expert opinion of record.”
Id. at *5.

As the ALJ himself noted, “there is no evidence of

any formal evaluation by a psychiatrist or psychologist leading
to any diagnosis or treatment.”

(R. at 11.)

Nonetheless, the

ALJ considered Westhaver’s testimony and concluded that he had
severe depression including moderate limitations in (1)
concentration, persistence, and pace, and (2) social
29

interactions.

(R. at 11.)

These conclusions, which the ALJ

included in his RFC assessment by limiting Westhaver to unskilled
work away from the general public (R. at 11–12), were based
solely on his own interpretation of the medical evidence.

Thus,

the ALJ’s mental RFC assessment is not based on substantial
evidence.
Consequently, the ALJ’s RFC assessment in step 4 is not
supported by substantial evidence and I must vacate his decision
and remand the case for further investigation regarding
Westhaver’s physical and mental functional capacities.

Because

the ALJ’s decision at step 4 was not adequately supported, I need
not address Westhaver’s claim of error at step 5.

The ALJ’s

decision will be vacated, and the case remanded.
4.

The Duty to Ensure a Complete Record

A claimant is “responsible for providing the evidence [used]
to make a finding about [his] residual functional capacity.”
C.F.R. § 404.1545(a)(3).

20

“However, before [the ALJ] make[s] a

determination that [a claimant is] not disabled, [the ALJ is]
responsible for developing [a] complete medical history,
including arranging for a consultive examination(s) if necessary,
and making every reasonable effort to help [the claimant] get
medical reports.”

Id.

If there is insufficient evidence to make

a determination on disability, the SSA “will request additional
existing records, recontact your treating sources or any other
30

examining sources, ask you to undergo a consultative examination
at our expense, or ask you or others for more information.”

20

C.F.R. § 404.1527(c)(3).
The SSA here made “every reasonable effort” to acquire a
complete record by requesting and scheduling psychiatric and
medical consultative examinations, which it is authorized to do
under 20 C.F.R. § 404.1517.

(R. at 325.)

The Federal Reviewing

Officer notes that not only did Westhaver fail to appear at these
appointments, but he also “failed to respond to telephone
messages left for him and has not responded to a 10 day deadline
letter.”

(R. at 325.)

There is no evidence in the record

regarding why Westhaver failed to appear or to respond to the
requests.2
Thus, in remanding this case to the ALJ, I am aware that
Westhaver has proved less than cooperative with the SSA in
meeting his burden to provide evidence supporting his claim.

As

the Commissioner observes, it is unfair that Westhaver apparently
The regulations permit rescheduling of a consultative
examination in limited circumstances:
[I]f you have any reason why you cannot go for the
scheduled appointment, you should tell us about this as
soon as possible before the examination date. If you
have a good reason, we will schedule another
examination. We will consider your physical, mental,
educational, and linguistic limitations (including any
lack of facility with the English language) when
determining if you have a good reason for failing to
attend a consultative examination.
20 C.F.R. § 404.1418(a); see also 20 C.F.R. § 404.1418(b)
(listing examples).
2

31

refused to provide required evaluations and yet now seeks remand
for lack of sufficient evidence.

The regulations are clear that

a claimant should not benefit from his own lack of cooperation
with the claims procedures:
If you are applying for benefits and do not have a good
reason for failing or refusing to take part in a
consultative examination or test which we arrange for
you to get information we need to determine your
disability or blindness, we may find that you are not
disabled.
20 C.F.R. § 404.1518(a) (emphasis added).

Consequently, if on

remand Westhaver continues his pattern of failing appear at
scheduled consultative examinations — or fails to provide any
other evidence reasonably requested by the SSA — he does so at
his own peril.

In such a circumstance, failure to appear at a

scheduled consultive examination would be a proper ground for
denial of his claim on this record.
IV. CONCLUSION
For the reasons set forth more fully above, I DENY the
Commissioner’s motion to affirm (Dkt. No. 17), and I GRANT in
part Westhaver’s motion (Doc. No. 15) to the extent that the
Commissioner’s decision is VACATED and REMANDED for further
development of the record, a new administrative hearing, and any
further proceedings consistent with this opinion that may be
deemed necessary.
/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
32