Allard v. Astrue

Filing 20

Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER.In view of the foregoing, it is hereby ORDERED that: 1. Plaintiff's Motion to Reverse or Remand the Decision of the Commissioner of Social Security (Docket No. 14) is DENIED. 2. Defendant's Motion to Affirm the Commissioner's Decision (Docket No. 17) is ALLOWED.(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
WAYNE J. ALLARD,
Plaintiff.

)
)
)
)
)
)
)
)
)

v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Defendant.

C.A. No. 10-10143-MLW

MEMORANDUM AND ORDER
WOLF, D.J.

August 24, 2011

I. INTRODUCTION
Plaintiff Wayne J. Allard has filed a motion pursuant to 42
U.S.C. §405(g) to reverse or remand the final decision of defendant
Michael

J.

Astrue,

Administration,

the

denying

Commissioner
his

of

the

Social

Security

application

for

Social

Security

Disability Insurance Benefits. Defendant has filed a motion to
affirm the decision. For the reasons described below, plaintiff's
motion to reverse or remand is being denied, and defendant's motion
to affirm the decision is being allowed.
II.

FACTS AND PROCEDURAL HISTORY
Plaintiff filed an application for Social Security Disability

Insurance Benefits on March 20, 2007. See Administrative Record
("AR") at 7. He alleges a disability arising from neck and back
injuries caused by a September 23, 2004 automobile accident. See
id. at 10. Defendant denied plaintiff's application on June 20,
2007, and, after reconsideration, again on August 26, 2008. See id.
at 64-66, 75-77.

An administrative hearing was held before Administrative Law
Judge ("ALJ") Sean Teehan on July 17, 2009. See id. at 7. On
September 2, 2009, the ALJ denied plaintiff's application, finding
that he did not meet the requirements of the five-step sequential
evaluation

process

for

determining

whether

an

individual

is

disabled and, therefore, was not disabled. See id. at 9-12. The
sequential

evaluation

was

performed

pursuant

to

20

C.F.R.

§404.1520. See id. at 8. Steps one through five address whether:
(1) the claimant is engaging in substantial gainful activity; (2)
the claimant has a medically determinable impairment that is severe
or a combination of impairments that is severe; (3) the claimant's
impairment or combination of impairments meets or medically equals
the criteria listed in 20 C.F.R. §404 Subpart P, Appendix 1; (4)
the claimant's residual functional capacity allows him or her to
perform the requirements of his or her past relevant work; and (5)
the claimant is able to perform any other work. See id. at 8-9.
The ALJ found that plaintiff satisfied steps one and two
because he was not engaged in substantial gainful activity and
suffered

from

the

following

severe

impairments:

C4-5

disc

protrusion, cervical degenerative disc disease with no significant
foraminal stenosis, cervical spondylosis, and mild supraspinatus
and infraspinatus tendinosis. See id. at 9. At step three, the ALJ
determined that these impairments did not meet or medically equal
any impairments listed in 20 C.F.R. §404, Subpart P, Appendix 1,

2

and, therefore, did not automatically render plaintiff disabled.
See id. at 10. At step four, the ALJ found that plaintiff's
residual functional capacity permitted him to perform his past
relevant work as a stock clerk in a thrift store.1 See id. at 12.
Accordingly, the ALJ did not reach step five, and plaintiff was
determined to be not disabled. See id. at 12-13.
The ALJ's decision became final when it was affirmed by the
Decision Review Board on November 29, 2009. See id. at 1-3.
Plaintiff timely filed the instant petition on January 29, 2010,
contending that the ALJ erred by failing to give proper weight to
the opinions of his treating physician and a vocational expert. On
February 24, 2011, defendant filed a motion to affirm the ALJ's
decision.
III. DISCUSSION
"Judicial review of Social Security administrative decisions
is authorized by 42 U.S.C. §405(g)." Seavey v. Barnhart, 276 F.3d
1, 9 (1st Cir. 2001). The court's review is "limited to determining

1

As defendant acknowledges, the ALJ's step-four finding is
in tension with his step-one finding. At step four, the ALJ found
that plaintiff could perform his past relevant work - namely, a
stock clerk position plaintiff had held from April, 2006, until
September, 2006. See AR at 9, 25, 133. However, at step one, the
ALJ found that plaintiff had not engaged in substantial gainful
activity since September 23, 2004. See id. at 9. This tension
does not require reversal or remand, however, because it
represents, at most, harmless error insofar as it indicates only
that the ALJ had alternate grounds for denying plaintiff's
application. See Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 656
(1st Cir. 2000).
3

whether the ALJ deployed the proper legal standards and found facts
upon the proper quantum of evidence." Nguyen v. Chater, 172 F.3d
31, 35 (1st Cir. 1999) (citing Manso-Pizarro v. Sec'y of Health &
Humam Servs., 76 F.3d 15, 16 (1st Cir. 1996)).
A reviewing court must affirm the ALJ's decision if it is
supported by "substantial evidence" in the record. 42 U.S.C.
§405(g); see also Rodriguez Pagan v. Sec'y of Health & Human
Servs., 819 F.2d 1, 3 (1st Cir. 1987). "Substantial evidence" means
"more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The ALJ is entitled
to weigh the evidence and to resolve conflicts in the medical
evidence and testimony. See Rodriguez Pagan, 819 F.2d at 3. The ALJ
may also consider questions of demeanor and credibility, and his or
her conclusions regarding demeanor and credibility are entitled to
deference by a reviewing court. See Crespo v. Sec'y of Health &
Human Servs., 831 F.2d 1, 7 (1st Cir. 1987).
A.

The Opinion of Plaintiff's Physician

Plaintiff

contends

that

the

ALJ

erred

by

not

giving

controlling weight to the opinion of his treating physician, Dr.
Roger Kinnard, regarding plaintiff's residual functional capacity.
This contention is mistaken.
An ALJ must evaluate every medical opinion he or she receives,

4

"[r]egardless of its source," unless a treating physician's opinion
is given controlling weight. 20 C.F.R. §416.927(d). "[T]reating
physicians' opinions are ordinarily accorded deference in Social
Security

disability

proceedings."

Richards

v.

Hewlett-Packard

Corp., 592 F.3d 232, 240 n.9 (1st Cir. 2010). This is because
treating

physicians

are

best

situated

to

offer

"a

detailed,

longitudinal picture . . . and may bring a unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations." 20
C.F.R. §416.927(d)(2). However, for a treating physician's opinion
to be given controlling weight, it must be well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and must be consistent with other substantial evidence in the
record. See 20 C.F.R. §416.927(d)(2); Silva-Valentin v. Comm'r of
Soc. Sec., 74 F. App'x 73, 74 (1st Cir. 2003) (unpublished); Haidas
v. Astrue, C.A. No. 08-11274-MLW, 2010 WL 1408618, at *2 (D. Mass.
Mar. 31, 2010).
In this case, the ALJ did not err by declining to give to Dr.
Kinnard's opinion the controlling weight ordinarily due to the
opinion of a treating physician. On May 27, 2009, having reviewed
plaintiff's medical and surgical records, Dr. Kinnard completed a
physical residual functional capacity assessment of plaintiff. See
AR at 336. Dr. Kinnard concluded that plaintiff could frequently

5

lift ten pounds, could stand or walk for fewer than two hours in
the course of an eight-hour workday, could sit for fewer than six
hours in the course of an eight-hour workday, and was limited in
using his arms to push or pull. See id. Dr. Kinnard also concluded
that plaintiff could never climb, stoop, crouch, or crawl, could
only occasionally balance or kneel, and had limited reaching
ability. See id. at 337-38. Dr. Kinnard summarized his conclusions
by

expressing

the

opinion

that

plaintiff

required

"sedentary

conditions." Id. at 337.
However, as the ALJ noted, although Dr. Kinnard had treated
plaintiff for several months following the September 23, 2004
automobile accident that caused plaintiff's impairments, he was no
longer plaintiff's treating physician when he offered his May 27,
2009 opinion regarding plaintiff's residual functional capacity.
See AR at 11. Indeed, the last date on which Dr. Kinnard actually
examined or treated plaintiff appears to have been about January 5,
2005. See id. at 194-95. A treating physician is one who has an
"ongoing

treatment

relationship"

with

a

patient.

20

C.F.R.

§§404.1502 (emphasis added). To give controlling weight to Dr.
Kinnard's May 27, 2009 opinion under these circumstances would
defeat the purpose of the treating physician rule codified in 20
C.F.R. §416.927(d).
When,

as

here,

a

treating

physician's

opinion

is

not

controlling, an ALJ must look to the following factors to determine

6

the weight properly given to the opinion: (1) the length of the
treatment relationship and the frequency of examination; 2) the
nature and extent of the treatment relationship; 3) the relevant
evidence in support of the medical opinion; 4) the consistency of
the medical opinions reflected in the record as a whole; and 5)
whether the physician is a specialist in the area in which he or
she renders his or her opinions. See

20 C.F.R. §416.927(d).

However, the First Circuit has implicitly held that it is not
necessary for an ALJ to expressly address each of these factors.
See Morales v. Comm'r of Soc. Sec., 2 F. App'x 34, 36 (1st Cir.
2001) (unpublished); Ramos v. Barnhart, 119 F. App'x 295, 296 (1st
Cir. 2005) (unpublished); see also Haidas, 2010 WL 1408618, at *3;
Dietz v. Astrue, C.A. No. 08-30123-KPN, 2009 WL 1532348, at *7 (D.
Mass. May 29, 2009). Moreover, "[t]he law in [the First Circuit]
does not require ALJs to give greater weight to the opinions of
treating

physicians"

than

to

the

opinions

of

non-treating

physicians. Arroyo v. Sec'y of Health & Human Servs., 932 F.2d 82,
89 (1st Cir. 1991); Tremblay v. Sec'y of Health & Human Servs., 676
F.2d 11, 13 (1st Cir. 1982). An ALJ is entitled to choose between
conflicting evidence. See Vazquez-Rosario v. Barnhart, 149 F. App'x
8, 10 (1st Cir. 2005) (unpublished); Evangelista v. Sec'y of Health
& Human Servs., 826 F.2d 136, 141 (1st Cir. 1987); Burgos Lopez v.
Sec'y of Health & Human Servs., 747 F.2d 37, 41 (1st Cir. 1984).
In this case, having declined to give to Dr. Kinnard's opinion

7

controlling weight, the ALJ also did not err by not giving to it
"much weight" at all. AR at 11. As the ALJ noted, Dr. Kinnard's May
27, 2009 opinion is inconsistent with other medical evidence in the
record,

including

Dr.

Kinnard's

own

observations

and

recommendations made while still treating plaintiff immediately
following his September 23, 2004 automobile accident. See id. at
11. For example, on October 26, 2004, Dr. Kinnard observed that,
while

plaintiff's

impairments

temporarily

precluded

him

from

resuming his work in a hotel laundry, plaintiff was only partially
disabled and could perform light work. See id. at 190-91. Dr.
Kinnard reiterated this observation on January 5, 2005. See id. at
195.
Of course, as plaintiff points out, the degenerative nature of
his impairments could explain any inconsistencies between Dr.
Kinnard's earlier observations and his May 27, 2009 opinion.
However, the other medical evidence in the record reflects few
signs of actual degeneration and, indeed, much of the other
evidence in the record contradicts Dr. Kinnard's May 27, 2009
opinion.
A September 25, 2004 physical examination conducted by Dr.
Colleen M. Collins revealed that plaintiff had full range of motion
of his left shoulder, back, and neck, without spinal or paraspinal
tenderness,

see

id.

at

197,

as

did

a

follow-up

examination

conducted by Dr. John Vanderpool on October 20, 2004, see id. at

8

202-03. After reviewing the results of an MRI and reexamining
plaintiff on November 12, 2004, Dr. Vanderpool cautioned that heavy
lifting "may exacerbate [plaintiff's] discomfort" but that light
work was possible. Id. at 205. On December 15, 2004, Dr. Vanderpool
"anticipat[ed] that there should be some improvement over the
course of the next month to month and a half," and "expect[ed] an
eventual full recovery . . . without any expectation of significant
limitation or loss of function." Id. at 207. Throughout 2005 and
2006, plaintiff continued to see Dr. Vanderpool periodically,
complaining of occasionally severe neck and shoulder pain and
receiving from Dr. Vanderpool notes temporarily excusing him from
work. See id. at 229-243, 282. However, it does not appear that Dr.
Vanderpool ever revised his opinion regarding plaintiff's overall
fitness for light work.
On June 5, 2006, plaintiff was examined by Dr. Robert A
DiTullio, who found plaintiff to have C4 to T5 tenderness and left
shoulder tenderness. See id. at 221. Dr. DiTullio also reported
that plaintiff had a weak grip in his left (dominant) hand and that
plaintiff's left shoulder showed signs of atrophy, but noted that
sensory testing of plaintiff's upper and lower extremities was
normal and that plaintiff generally had good range of motion. See
id. at 221-22. Dr. DiTullio offered a "[g]uarded" prognosis and
diagnosed plaintiff with (1) a traumatic C4-5 herniated disc, with
continuing

radiculopathy

into

the

9

left

upper

extremity;

(2)

supraspinatus

and

infraspinatus

tendinosis;

and

(3)

a

lumbar

strain. Id. at 222. He described plaintiff as "totally disabled"
but, without elaboration, cited an "18% impairment of the whole
person as her [sic] permanent partial disability." Id. at 222-23.
On March 2, 2007, plaintiff was examined by Dr. Richard Ozuna,
an orthopaedist who reported that plaintiff's "motor and sensory
exams were normal" and that plaintiff's reflexes were normal, as
well. Id. at 264. Dr. Ozuna described plaintiff's symptoms as
primarily axial and myofascial, noting that he observed no signs of
radiculopathy or myelopathy. See id. at 265. On March 23, 2007, Dr.
Ozuna noted that an MRI of plaintiff's cervical spine revealed mild
disc protrusion at C4-5 with mild impingement of the spinal cord,
mild to moderate central left-side disc protrusion at C5-6, and a
mild disc bulge at C6-7. See id. at 265, 282. On the recommendation
of Dr. Ozuna and his colleague, Dr. James Lee, plaintiff received
two

courses

of

epidural

steroid

injections

but

apparently

experienced no relief from his pain. See id. at 266-68.
On May 24, 2007, having performed a consultative physical
examination, Dr. Hubert Caplan concluded that plaintiff had full
range of motion in his neck "with some complaint of high left
trapezius discomfort and on right lateral flexion there is slight
tenderness in the left trapezius parasternally." Id. at 262. Dr.
Caplan also concluded that plaintiff exhibited no signs of root
compression or radiculopathy. See id. He expressed the opinions

10

that

plaintiff

was

not

"totally

disabled

for

all

gainful

employment" and that plaintiff could perform sedentary or light
work, if certain precautions were taken to avoid straining his
neck. Id. at 263.
Dr. Caplan's opinions are largely consistent with the opinion
of

Dr.

Barbard

Trockman,

who

conducted

a

physical

residual

functional capacity assessment of plaintiff on June 18, 2007. Dr.
Trockman

found

that

plaintiff

could

occasionally

lift

twenty

pounds, could frequently lift ten pounds, was unlimited in his
pushing and pulling abilities, and could stand, walk, or sit for
six hours over the course of an eight-hour workday, although Dr.
Trockman also found that plaintiff was limited in reaching overhead
and could only occasionally balance. See id. at 270-72. In making
these findings, Dr. Trockman referred to plaintiff's near-normal
physical examinations and MRI results, concluding that plaintiff's
complaints of pain were only partially credible. See id. at 271. In
contrast, Dr. Robert Draper, who reviewed plaintiff's medical
records in connection with plaintiff's disability determination,
found plaintiff's complaints of pain to be credible, concluding on
April 17, 2008, that plaintiff's pain was severe and caused
exertional limitations. See id. at 306.
On the basis of this evidence, much of which is detailed in
the ALJ's decision, it was not error for the ALJ to give little
weight to Dr. Kinnard's May 27, 2009 opinion. Although some of the

11

evidence in the record supports Dr. Kinnard's opinion, the majority
of it - including treatment and examination notes made by Dr.
Kinnard while still treating plaintiff in late 2004 and early 2005
- does not. The ALJ was entitled to resolve conflicts in the
record, see Rodriguez Pagan, 819 F.2d at 3, and to disbelieve
plaintiff's subjective complaints of disabling pain in the face of
contrary medical evidence, see Evangelista, 826 F.2d at 141. In
this case, the ALJ's resolution of any conflicts in the record was
adequately supported by substantial evidence and, accordingly, his
step-four

finding

regarding

plaintiff's

residual

functional

capacity was proper and will not be disturbed.
B.

The Opinion of the Vocational Expert

Plaintiff also contends that the ALJ erred by not giving
adequate weight to the opinion of a vocational expert, Paul R.
Blatchford, regarding plaintiff's literacy, education, and overall
employability.

However,

Blatchford's

opinion

would

have

been

relevant only at step five of the ALJ's sequential evaluation
process. See 20 C.F.R. §404.1560(c)(1). Because the ALJ properly
never

reached

that

step,

he

was

not

required

to

consider

Blatchford's opinion.
IV.

ORDER
In view of the foregoing, it is hereby ORDERED that:
1. Plaintiff's Motion to Reverse or Remand the Decision of the

Commissioner of Social Security (Docket No. 14) is DENIED.

12

2. Defendant's Motion to Affirm the Commissioner's Decision
(Docket No. 17) is ALLOWED.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

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