Lee v. Astrue

Filing 18

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - Based on the foregoing, the Commissioners motion to affirm is GRANTED and Lees motion to reverse or remand is DENIED.So ordered.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
Daniel Lee,
)
)
Plaintiff,
)
)
v.
)
Civil Action No. 10-10708-DJC
)
Michael J. Astrue, Commissioner,
)
Social Security Administration,
)
)
Defendant.
)
____________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

July 14, 2011

Introduction
Plaintiff Daniel Lee (“Lee”) filed a claim for disability insurance benefits (“SSDI”) with the

Social Security Administration. Pursuant to the procedures set forth in the Social Security Act, 42
U.S.C. §§ 405(g), 1383(c)(3), Lee now brings this action for judicial review of the final decision of
Defendant Michael J. Astrue, Commissioner of the Social Security Administration (“the
Commissioner”), issued by an Administrative Law Judge (“ALJ”) on October 30, 2009, denying
Lee’s claim. The Decision Review Board (“the Board”) selected the ALJ’s decision for review but
failed to act on the claim within the requisite time period. Accordingly, the ALJ’s decision is the
final decision of the Commissioner. 20 C.F.R. § 405.420(a)(2); see Lappen v. Astrue, No. 0911857-WGY, 2011 WL 2424273, at *1 (D. Mass. June 17, 2011).
Before the Court are Lee’s Motion to Reverse or Remand the ALJ’s decision and the
Commissioner’s Motion to Affirm that decision. In his motion, Lee claims that the ALJ erred in

1

denying his claim because: i) the ALJ ignored relevant evidence and consequently failed to evaluate
Lee’s carpal tunnel syndrome (“CTS”); and ii) the ALJ impermissibly accorded little weight to the
opinion of Lee’s treating psychologist, and, thus, there was no substantial evidence to support the
ALJ’s mental residual functional capacity (“RFC”) findings. Because the ALJ was not required to
evaluate any limitations stemming from Lee’s CTS and because there is substantial evidence in the
record to support the ALJ’s mental RFC findings, the Commissioner’s final decision is AFFIRMED.
II.

Factual Background
Lee was 48 years old when he ceased working on July 28, 2005. See R. 88.1 He had

previously worked in construction. R. 25. In his April 24, 2007 application for SSDI with the
Social Security Administration (“SSA”), R. 7, 88-95, he alleged disability due to a back injury and
high blood pressure. R. 102.
III.

Procedural Background
Lee filed claims for SSDI with the SSA on April 24, 2007, asserting that he was unable to

work as of July 28, 2005. R. 7. After initial review, his claims were denied on December 17, 2007.
R. 55-57. His claims were reviewed by a Federal Reviewing Official and again denied on August
19, 2008. R. 49-54. On August 28, 2008, Lee filed a timely request for a hearing before an ALJ
pursuant to SSA regulations. R. 63-64. A hearing was held before an ALJ on August 13, 2009. R.
20. In a written decision dated October 30, 2009, the ALJ determined that plaintiff did not have a
disability within the definition of the Social Security Act and denied Lee’s claims. R. 7-17.
Although the ALJ notified Lee that the SSA’s Decision Review Board selected his claim for
review, R. 1, the Board did not complete its review of Lee’s claim during the requisite time period.

1

Citations to the administrative record in this case, Docket No. 9, shall be to “R. __.”
2

R. 1. Accordingly, the ALJ’s decision is the Commissioner’s final decision. 20 C.F.R. §
405.420(a)(2); Lappen, 2011 WL 2424273, at *1.
IV.

Discussion
A. Legal Standards
1. Entitlement to Disability Benefits
A claimant’s entitlement to SSDI turns in part on whether he or she has a “disability,”

defined in the Social Security context as an “inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. §§ 416(i), 423(d)(1)(a); 20 C.F.R. § 404.1505; Mota v. Astrue, No. 09-11817RWZ, 2010 WL 4780477, at *1 (D. Mass. Nov. 16, 2010). The inability must be severe, rendering
the claimant unable to do his or her previous work or any other substantial gainful activity which
exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511; Mota,
2010 WL 4780477, at *1.
The Commissioner must follow a five-step process when he determines whether an
individual has a disability for Social Security purposes and, thus, whether that individual’s
application for benefits will be granted. 20 C.F.R. § 416.920; Mota, 2010 WL 4780477, at *2. All
five steps are not applied to every applicant; the determination may be concluded at any step along
the process. Id. First, if the applicant is engaged in substantial gainful work activity, then the
application is denied. Id. Second, if the applicant does not have, or has not had within the relevant
time period, a severe impairment or combination of impairments, then the application is denied. Id.
Third, if the impairment meets the conditions for one of the “listed” impairments in the Social

3

Security regulations, then the application is granted. Id. Fourth, if the applicant’s “residual
functional capacity” (“RFC”) is such that he or she can still perform past relevant work, then the
application is denied. Id. Fifth and finally, if the applicant, given his or her RFC, education, work
experience, and age, is unable to do any other work, the application is granted. Id.
2. Standard of Review
This Court has the power to affirm, modify, or reverse a decision of the Commissioner upon
review of the pleadings and record. 42 U.S.C. § 405(g); Coughlin v. Astrue, No. 09-30217-KPN,
2010 WL 4225380, at *1 (D. Mass. Oct. 20, 2010). Such review, however, is “limited to
determining 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 and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996)). The ALJ’s findings of fact are
conclusive when supported by substantial evidence. 42 U.S.C. § 405(g); Phillips v. Barnhart, No.
02-11115-RWZ, 2003 WL 21877761, at *1 (D. Mass. Aug. 8, 2003). Substantial evidence exists
“if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate
to support [the Commissioner’s] conclusion.” Rodriguez v. Sec’y of Health and Human Servs., 647
F.2d 218, 222 (1st Cir. 1981).
However, the ALJ’s findings of fact “are not conclusive when derived by ignoring evidence,
misapplying the law, or judging matters entrusted to experts.” Nguyen, 172 F.3d at 35 (citations
omitted). Thus, if the ALJ made a legal or factual error, Manso-Pizarro, 76 F.3d at 16, the court may
reverse or remand such decision to consider new, material evidence or to apply the correct legal
standard. See 42 U.S.C. § 405(g).

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B. Before the ALJ
1.

Medical History

The record before the ALJ included extensive evidence about Lee’s medical history,
including diagnoses and treatment, particularly in regard to the conditions upon which Lee relied
in claiming a disability in his application for SSDI benefits. Although Lee initially alleged that only
his back pain and high blood pressure limited his ability to work, R. 102, the ALJ also evaluated
evidence concerning Lee’s hand impairments and depression with anxiety. R. 7-17.
a.

Back Pain

Medical records from Northwest Health Center demonstrate that Lee injured his back while
working as a window installer on July 27, 2005. R. 186, 200. An MRI scan from July 29, 2005
revealed a tiny disc protrusion and degenerative changes in his spine, but no significant narrowing
of the spinal column. R. 198. By September 26, 2005, Lee reported that his lower back pain had
resolved, and he needed a release from his doctor to go back to work. R. 191. On November 2,
2006, however, Lee reported lower back pain after completing roofing work for his sister-in-law.
R. 182.
Medical records from Urgent Medical Care and Landmark Medical Center indicate that on
February 24, 2007, Lee exacerbated his back pain while lifting a door at Home Depot. R. 161-62,
167. An MRI exam from March 19, 2007 revealed degenerative changes in the lower lumbar spine
and spinal disc deterioration. R. 171-72. Lesser degenerative changes were seen elsewhere in the
lumbar spine. R. 172.
On October 12, 2007, Dr. Youssef Georgy, a non-treating physician, performed a physical
RFC assessment, which revealed that Lee could occasionally lift twenty pounds, frequently lift ten

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pounds, stand or walk for a total of six hours in an eight-hour workday, and sit for a total of six
hours in an eight-hour workday. R. 207. The RFC assessment also reported that Lee can
occasionally stoop and crouch, but could frequently climb, balance, kneel, and crawl. R. 208. Dr.
Georgy assessed no limitations in Lee’s environmental, visual, or communicative abilities. R. 20910.
Treating physicians at Summa Health System performed another physical RFC assessment
on June 1, 2009. R. 455-60. This RFC assessment revealed some physical limitations, but the
physicians noted that Lee did not fully participate in testing and that Lee’s demonstrated physical
function “should not be used to project actual work capacity since he may be able to function at a
level higher than willing.” R. 458-60.
b.

Partial Contracture of the Fifth Finger of the Right Hand

The medical history concerning Lee’s hand problems is not well-documented. Medical
records from Northwest Health Center reveal that, on July 31, 2007, Lee was diagnosed with right
hand numbness and finger contracture (shortening of the muscles in the hand). R. 252-53. Lee was
diagnosed with CTS on September 21, 2007 and referred for a CTS evaluation, but there is no
evidence that such evaluation occurred. R. 250-51.
On September 14, 2007, Dr. Thomas McGunigal performed a consultative examination of
Lee, reporting that Lee’s fifth digit (pinky) on his right hand had limited range of motion, but that
there was “full range of motion in all other joints of the hands.” R. 204. Dr. McGunigal also
reported that the Phalen signs2 were negative and Lee’s motor power was limited in the right thumb;

2

Phalen’s maneuver is a diagnostic test for CTS. Dorland’s Illustrated Medical
Dictionary (“Dorland’s”) 1117 (31st ed. 2007).
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otherwise, motor power was normal in the wrists and hands. R. 204. Lee was diagnosed with lower
back pain, right CTS, and finger contracture primarily affecting the fifth digit of his right hand. R.
205.
Dr. Georgy’s physical RFC assessment from October 12, 2007 reported that Lee had limited
function in his gross manipulation and that he should avoid frequent hand motions. R. 209. This
RFC assessment revealed no other limitations in Lee’s manipulative functions. R. 209.
c.

Depression with Anxiety and Poly-substance Abuse

Regarding Lee’s mental impairments, much of the medical records concerning Lee’s
depression with anxiety involve primarily his attempts at detoxification and subsequent withdrawal
symptoms. R. 13. On March 4, 2007, providers at Landmark Medical Center reported that Lee’s
psychiatric status was normal. R. 168.
On May 2, 2007, a provider at Northwest Health Center diagnosed Lee with hypertension,
anxiety, and depression. R. 175. A July 11, 2007 report from Northwest states that Lee had
“recently been diagnosed with anxiety and depression” and that he had been referred to counseling
and started on medication. R. 201. Lee appeared multiple times at Northwest in July through
September 2007 to receive treatment for, among other things, depression. R. 250-253. According
to a Northwest provider, Lee seemed depressed and anxious, but his mood, affect, and insight were
all stable and appropriate, and he was oriented. R. 250-253.
On November 14, 2007, Dr. James Curran, a psychologist, reported that Lee was alert, had
good hygiene, maintained appropriate eye contact, and established good rapport. R. 214. Lee’s
speech was also normal, and he had no articulation problems; however, he was “not spontaneous and
did not answer questions.” R. 217. There was “no evidence of any thought disorder.” R. 217.

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Additionally, Lee performed well in cognitive testing, was oriented to date, and had followed his
wife’s directions to drive to Dr. Curran’s practice, although Lee did not know the address. R. 217.
His insight and judgment, however, appeared “somewhat limited,” and he “appeared quite
depressed.” R. 217. Dr. Curran assessed severe major depressive disorder, severe post-traumatic
stress disorder, and alcohol abuse. R. 218. Lee reported to Dr. Curran that he had already been
depressed for approximately four or five years, and that he drinks approximately twelve beers a day
and smokes cannabis occasionally. R. 217. (In an earlier exam with Dr. McGunigal on September
14, 2007, Lee revealed that he drinks approximately thirty beers a week. R. 203). Finally, Dr.
Curran concluded that there was no evidence of any obsessive-compulsive disorder, generalized
anxiety, or panic disorder. R. 217.
On December 10, 2007, Dr. Phillips, a non-examining state-agency psychologist, completed
a Psychiatric Review technique form (“PRTF”), which reported that Lee suffered from depression,
anxiety, and alcohol dependence. R. 220-32. However, Dr. Phillips reported that Lee’s disorders
caused either no or only mild functional limitations on Lee’s activities of daily living, social
functioning, concentration, persistence, and pace. R. 230. Furthermore, Dr. Phillips reported that
there had been no episodes of extended decompensation due to Lee’s mental impairments. R. 230.
Dr. Phillips concluded that Lee’s impairments were severe but that insufficient medical evidence
supported their existence and severity prior to May 1, 2007. R. 232. Dr. Phillips also reported that
Lee had a history of poly-substance abuse. R. 232. Finally, Dr. Phillips reported that Lee’s
impairments, with comprehensive treatment, would not persist at severe levels beyond May 1, 2008.
R. 232.
In November and December 2007, a Northwest Health Center provider diagnosed Lee with

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depression and hypertension and urged Lee to consider stopping alcohol. R. 247-49. Lee appeared
well-oriented, and his mood, affect, and insight were all appropriate and stable. R. 247-49. In
January 2008, a Northwest provider reported that Lee had reduced depression and anxiety. R. 24445. Lee also stated that he felt “much better on Wellbutrin,” that had been prescribed for his
depression. R. 244-45. Lee presented again to Northwest complaining of increased depression and
anxiety on February 21, 2008. R. 240-41. He reported that his wife had thrown away his Vicodin
and that he was attempting to “cut down” on alcohol. R. 241.
Lee underwent detoxification on February 28, 2008, R. 255, 287, and presented to the
Landmark Medical Center emergency room on March 7, 2008 with withdrawal symptoms, including
altered mental state, tremors, and hallucinations. R. 255. Lee was admitted for these symptoms on
March 8, 2008; by March 16, 2008, his condition had stabilized, and Dr. Sayed Sayeed, a Landmark
physician, described him as oriented and attentive with normal speech. R. 289. Dr. Sayeed
diagnosed Lee with chronic alcoholism and mild memory impairment, “chiefly for immediate
recall.”

R. 289.

On admission to the emergency room, Lee had reported that he drank

approximately ten to fifteen beers a day for over twenty years. R. 262. He reported comparable
daily consumption–12-16 cans of beer a day–to Dr. Sayeed on March 16, 2008. R. 289.
A psychiatric consultation assessment performed by Dr. Kahr from March 10, 2008 reported
that Lee made good eye contract, was cooperative, and that his speech was coherent and relevant.
R. 285. Lee stated that his primary care physician told him that he would die if he did not stop
drinking. R. 285. Dr. Kahr concluded that Lee suffered from alcohol dependence and psychosis,
but that Lee was no longer in alcohol withdrawal. R. 286. Finally, Dr. Kahr reported that Lee’s
“extreme anxiety and auditory hallucinations probably [were] secondary to the severity of his

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alcoholism . . . .” R. 286.
Treatment notes from Dr. Deihl from February 2008 through April 2008 describe Lee’s
depression and anxiety associated with his alcoholism, as well as his efforts to decrease his alcohol
consumption, maintain sobriety, and attend Alcoholics Anonymous (“AA”) meetings. R. 304-10.
Lee also reported that he was getting out of the house more to do yard work, but felt tired and had
little motivation. R. 311. By May, however, Lee had begun drinking again and returned for
detoxification. R. 312-13. Dr. Deihl’s mental RFC assessment from July 11, 2008, four months
after he had started treating Lee, reported that Lee had a “severe” impairment in every category of
mental functioning. R. 339-40. This mental RFC assessment also reported that Lee was “unable
to maintain sustained employment for the foreseeable future.” R. 340. In the same time frame of
July 2008, however, Dr. Deihl noted that Lee was “doing well in terms of getting out” and that he
had managed “several yard projects.” R. 543. Lee had a “harder time interesting [him]self to get
out of [the] house” but had opportunities to fish, golf, and talk with friends. R. 543.
2.

ALJ Hearing

At the August 13, 2009 administrative hearing, the ALJ heard testimony from two witnesses:
Lee and vocational expert (“VE”) Michael Orr.
a.

Lee’s Testimony

Lee testified that he had worked in construction for the fifteen years before he left work due
to his alleged disability. R. 25. He resumed work briefly at the end of 2005 until January of 2006,
but was then laid off because he needed time off for doctors appointments. R. 25-26. Lee testified
that he is currently unable to perform any kind of work because he suffers from back pain, trouble
breathing, and depression, and cannot open or bend his right hand. R. 25, 27-28, 34-37, 39-40.

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Additionally, Lee’s attorney testified that Lee’s hand problems are not “well documented.” R. 28.
Concerning Lee’s physical limitations due to his back problems, Lee testified that he could
lift approximately ten to fifteen pounds if he “[doesn’t] do it much,” and he has no trouble sitting
“as long as [he] can move once in awhile . . . .” R. 33. Lee also testified that he can be on his feet
for about an hour before feeling back pain; by the time he finishes grocery shopping, his pain usually
starts. R. 33. Lee testified that none of his medications cause any side effects, and that he takes
ibuprofen approximately four or five times a week for his back pain. R. 36. Lee has approximately
four “bad days” a week due to his back pain when he has to lie down or sit for a couple of hours.
R. 38.
With respect to Lee’s right hand problems, Lee testified that he hurt his right hand fifteen
years ago when he fell off a wall at work, causing his fourth and fifth fingers to contract. R. 34.
Consequently, Lee has difficulty turning off lights and opening the refrigerator at his sister’s house
because he cannot open his right hand fully. R. 34. However, Lee testified that there is nothing that
he ordinarily did with his right hand in the past that he has had to stop doing or do with his left hand,
such as eating and writing. R. 35. Regarding Lee’s CTS, Lee stated that he is not sure what CTS
is and that he maybe had electrical testing for CTS years ago when he hurt his hand. R. 35. No
doctors, however, have recommended that Lee receive surgery or wear a brace on his hand or wrist.
R. 35-36.
In addition to his hand and back problems, Lee stated that he cannot work due to his
depression, which escalated after the death of his first wife in 2001. R. 39. Consequently, Lee has
presented for hospitalization due to suicidal thoughts and acts, such as taking medication with
alcohol. R. 40. Lee further testified that his depression has caused him to lose all ambitions and will

11

to care for himself, and he does not like leaving the house unless he has to. R. 40. Generally, Lee
does not like leaving his house because he “[does not] care for crowds, for people,” and feels safe
at home. R. 41.
Lee also testified that he has a history of alcohol abuse since he was a teenager, but that he
has never lost a job because of his drinking and continued drinking throughout his career in
construction. R. 39. Lee’s longest period of sobriety is approximately sixteen days. R. 39. Lee also
testified to smoking a pack of cigarettes a day and abusing Vicodin. R. 29. Lee stated at the hearing
that he is no longer taking any medication that is not prescribed to him, but he consumed alcohol
approximately four or five days prior to the hearing. R. 30-31. He testified that now he only drinks
alcohol on the weekends and when he goes camping. R. 31.
Regarding Lee’s daily activities, Lee testified that he spends much of his day watching TV,
on the computer, or sitting outside. R. 31. Lee also washes dishes for his sister, cooks, does
laundry, and mows the lawn along with his sister. R. 32. Lee does not vacuum or sweep, and he
no longer drives because he lost his first wife in a car accident and thus no longer “like[s] to drive.”
R. 32. Instead, Lee’s sister drives him to his doctors appointments. R. 33. Lee only visits his sister
and goes camping with her; otherwise, he does not associate with any one else. R. 33.
b.

VE’s Testimony

The VE, Michael Orr, testified that he was present during Lee’s testimony and had an
opportunity to review the documents pertaining to Lee’s age, education, and past work. R. 42. He
stated that Lee’s past work in construction involved very heavy and unskilled work as well as
medium and skilled work. R. 42. The ALJ posed the following hypothetical to the VE:
Mr. Orr, I’d like you to consider a hypothetical claimant of the same
age and education and work background as this claimant. With a
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residual functional capacity for a range of work that is [sic] elements
of light and sedentary. The claimant would be able to stand or walk
up to six hours in an eight hour day as in light work; would be able
to lift a maximum of 20 pounds occasionally; and 10 pounds or less
frequently. With his dominant right hand used alone, it would be
limited to sedentary levels of lifting or carrying or forced exertion. .
. . [T]o the extent that activities require fingering or fine manual
dexterity, the claimant with the dominant right hand would be limited
to activities that could be performed with the thumb and index and
middle finger. R. 43. The claimant would also be limited to
unskilled work tasks performed over an eight-hour workday. He
would require work breaks every two hours. These limitations would
rule out the claimant’s past work and any transferability of acquired
work skills. Is that correct? R. 44.
The VE responded that these limitations would prevent Lee from performing any of his past relevant
work, and there would be no transferability of acquired work skills. R. 44. However, the VE
testified that there were jobs in the national economy that Lee could perform, including messenger
or courier, press machine tender, machine operator, and security personnel. R. 45. The VE clarified
that these are all light unskilled jobs. R. 45. The VE further testified that if the same hypothetical
claimant were limited to sedentary exertion, he or she could still find work as, among other things,
security personnel, machine operators, quality control inspectors, and production inspectors. R. 4546. According to the VE, if the same hypothetical claimant’s limitations in concentration were at
the moderately severe level, then employment would be precluded. R. 46.
3.

Findings of the ALJ

Following the five-step process, 20 C.F.R. § 416.920, at step one, the ALJ found that Lee
did not engage in substantial gainful activity during the period from his alleged onset date of July
28, 2005 through his date last insured (“DLI”) of December 31, 2007. R. 9. The ALJ noted that Lee
returned to work for two months in 2006, after the alleged disability onset date, but that this work
activity did not rise to the level of substantial gainful activity. R. 9. Lee does not dispute the ALJ’s
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findings at step one.
At step two, the ALJ found that Lee had the following severe impairments: partial
contracture of the fifth finger of the dominant right hand, back pain, depression with anxiety, and
poly-substance abuse. R. 10. Lee does dispute the Commissioner’s determination regarding Lee’s
severe impairments, stating that the ALJ failed to evaluate Lee’s alleged CTS. (Pl. Br. 8). The ALJ
did not address Lee’s alleged CTS in his opinion, listing Lee’s partial contracture of the fifth finger
of his right hand as the only severe hand impairment. R. 10.
At step three, the ALJ found that, through the date last insured, Lee did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 10. Lee does not dispute the ALJ’s
findings at step three.
Before reaching his step four determination, the ALJ determined Lee’s residual functional
capacity, finding that, through the date last insured, Lee “had the [RFC] to perform light work as
defined in [20 C.F.R. § 404.1567(b)] except [Lee] is limited to sedentary tasks that can be performed
with the use of the thumb, index, and middle fingers with his dominant right hand as he cannot
perform five finger grasping or gripping with his right hand and he has a moderate limitation in his
ability to sustain concentration and attention, limiting him to unskilled work tasks.” R. 11.
Consequently, at step four, the ALJ determined that Lee cannot perform any of his past relevant
work in construction because such work requires at least medium exertional lifting. R. 15. Lee
disputes the ALJ’s RFC assessment, arguing that the ALJ improperly rejected the opinions of a
treating psychologist, Dr. Deihl, and, thus, the ALJ’s mental RFC findings are not supported by
substantial evidence. (Pl. Br. 10). The ALJ gave little weight to Dr. Deihl’s assessment that Lee

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cannot sustain employment due to his mental impairments, because the ALJ determined that Dr.
Deihl’s opinion did not provide a supporting rationale and Dr. Deihl had only been treating Lee for
four months at the time of the assessment. R. 13. Consequently, the ALJ relied on another mental
RFC assessment as well as other parts of the record to conclude that Lee suffered only a moderate
limitation in his ability to sustain concentration and attention. R. 7-17. Lee does not, however,
dispute the ALJ’s findings at step four, namely, that Lee is precluded from performing his past
relevant work.
At step five, the ALJ found that despite Lee’s physical and mental impairments, Lee is able
to perform other work that exists in significant numbers in the national economy. R. 15. As a result,
the ALJ did not find Lee disabled at any time prior to the expiration of Lee’s insured status. R. 7-17.
Lee disputes this finding, arguing that had the ALJ not rejected Dr. Deihl’s medical opinion, the ALJ
would have found that Lee’s mental RFC precludes any kind of employment.
C.

Lee’s Challenges to the ALJ’s Findings

Lee contends that the ALJ erred by (1) ignoring Lee’s diagnosis of CTS and thus failing to
include any CTS-related limitations in the ALJ’s hypothetical questions to the VE; and (2) rejecting
the opinions of a treating psychologist, Dr. Deihl, which stated that Lee had severe limitations in all
areas of mental functioning and could not sustain employment for the foreseeable future, R. 339-40.
Lee’s first challenge relates to the ALJ’s determination at step two; Lee argues that the ALJ ignored
evidence of Lee’s CTS and did not evaluate Lee’s functional limitations due to his CTS. The second
challenge relates to the ALJ’s mental RFC determination and findings at step five; Lee asserts that
the ALJ improperly rejected Dr. Deihl’s mental assessment of Lee and thus erred in determining that
Lee had only moderate limitations in his ability to sustain concentration and attention, which allow

15

Lee to still perform jobs that exist in significant numbers in the national economy.
1.

Lee’s Carpal Tunnel Syndrome

Lee argues that the ALJ impermissibly ignored any evidence or diagnosis of CTS at step two
and did not properly inquire into whether Lee’s CTS resulted in any limitations. (Pl. Br. 8-9). He
further argues that, as a result, the ALJ improperly failed to include CTS-related limitations in his
hypothetical questions to the vocational expert and thus did not include such limitations in the ALJ’s
RFC findings. (Pl. Br. 9).
At step two, the ALJ must determine whether a claimant suffers from “a severe impairment
that significantly limits the claimant’s physical or mental ability to do basic work activities.” White
v. Astrue, No. 10-10021-PBS, 2011 WL 736805, at *6 (D. Mass. Feb. 23, 2011) (internal quotations
omitted) (quoting Bowen v. Yuckert, 482 U.S. 137, 141-42 (1987)). A claimant carries the burden
at step two to prove that he or she suffers from such a “severe impairment.” White, 2011 WL
736805, at *6 (internal quotations omitted) (quoting Bowen, 482 U.S. at 141-42). To meet this
burden, a claimant must use “objective medical evidence” to demonstrate that his or her condition
meets the above standard of severity. White, 2011 WL 736805, at *6 (internal quotations omitted)
(quoting 20 C.F.R. §§ 404.1520, 404.1529). Here, Lee has not met this burden, and the ALJ was
not required to evaluate any alleged limitations associated with Lee’s CTS.
Lee points to only three instances in the record that document Lee’s CTS. First, Dr.
McGunigal, from the Rehabilitation Hospital of Rhode Island, examined Lee and assessed that Lee
suffers from lower back pain, right CTS, and bilateral contracture affecting the right fifth finger.
R. 205. Dr. McGunigal’s report, however, does not provide any evaluation of Lee’s functional
abilities, and “[a] mere diagnosis of a condition ‘says nothing about the severity of the condition.’”

16

White, 2011 WL 736805, at *6 (quoting Higgs v. Bown, 880 F.2d 860, 863 (6th Cir. 1988)).
Additionally, Dr. McGunigal’s report is internally inconsistent; he assessed CTS, but the Phalen test
performed was negative. R. 204. Dr. McGunigal also notes that Lee had a full range of motion in
all the other joints in his hands, and the muscle bulk in Lee’s hands and wrists was normal, except
for minimally reduced strength in Lee’s right thumb. R. 204.
Second, Lee cites to Dr. Georgy’s assessment of Lee’s functional limitations, which relies
on Dr. McGunigal’s CTS diagnosis, and reports that Lee has limited fine finger manipulation and
should avoid frequent hand motions. R. 207-09. Dr. Georgy’s report, however, does not specifically
attribute Lee’s limitation in fine manipulation to CTS. The report is vague as to the cause of Lee’s
hand limitation and does not mention CTS, other than Dr. Georgy’s relying on Dr. McGunigal’s
medical reports in assessing Lee’s physical RFC. R. 207. Additionally, it appears that Lee’s fine
manipulation limitations are likely caused by Lee’s finger contracture – which the ALJ cited as a
severe impairment at step two – as Dr. Georgy assessed no other limitations in Lee’s manipulative
functions. R. 7-17, 209. The ALJ even states in his opinion that “the contracture of [Lee’s] right
pinky finger prevents him from using that finger for fine manipulations.” R. 12.
Finally, Lee cites to an RFC assessment performed in June 2009 at Summa Health Systems
that reports that Lee is limited to an hour of activities involving use of his hands. R. 457. However,
this RFC assessment was performed beyond the date last insured of December 31, 2007, and, to
obtain SSDI, a claimant must demonstrate that his or her disability was present during the period
in which he or she had insured status. See 42 U.S.C. § 423(c); 20 C.F.R. §§ 404.101, 404.130404.131; SSR 83-20, Titles II and XVI: Onset of Disability, 1983 WL 31249, at *1 (S.S.A. 1983).
This RFC assessment provides no indication of Lee’s RFC from the date of the alleged onset of

17

Lee’s disability through the date last insured (“DLI”) of December 31, 2007. Furthermore, the RFC
assessment reports that Lee “did not fully participate in testing,” and that his demonstrated physical
function should “not be used to project actual work capacity since he may be able to function at a
level higher than willing.” R. 458.
Consequently, Lee did not meet his evidentiary burden through “objective medical
evidence” demonstrating that Lee’s CTS “significantly” limits his ability to do basic work activities.
See 20 C.F.R. §§ 404.1520, 404.1529. Lee’s attorney admitted at the hearing that Lee’s hand
problems are not “otherwise well documented” apart from Dr. McGunigal’s notes and the physical
capacity evaluation discussed above. R. 28. Accordingly, the ALJ was not required to consider
Lee’s CTS at step two, and Lee’s step two challenge is unavailing as a matter of law.
While the ALJ was not required to consider Lee’s CTS, the ALJ did evaluate and accurately
capture all of Lee’s hand limitations. Although the ALJ did not refer to CTS by name in his opinion,
he did review the entire record, R. 7-17, and a transcript of the hearing demonstrates that he fully
inquired into Lee’s functional limitations regarding Lee’s right hand. The ALJ’s findings are
supported by substantial evidence.
At the hearing, Lee made it clear that he only has problems in his right hand, R. 43, and that
he has partial contracture in only his fourth and fifth fingers. R. 33-34. This partial contracture
causes some pain and limits Lee’s ability to carry certain things or carry out certain actions, such
as opening up a refrigerator or turning off a light switch, because he cannot completely flatten his
hand. R. 34. Moreover, Lee stated that he continues to do everything he used to do with his right
hand, despite his impairments, such as eating and writing. R. 35. Lee also testified that he does not
know what CTS is and that no doctor has ever recommended that he wear a brace on his hand or

18

wrist or undergo surgery. R. 35-36. This testimony clearly indicates that Lee’s hand impairments
cause primarily intermittent pain and contraction. The hearing transcript also demonstrates that the
ALJ thoroughly inquired into Lee’s hand limitations.
Given Lee’s own statements and the general lack of evidence regarding Lee’s CTS, the
ALJ’s hypothetical question to the VE, which specified that Lee’s dominant right hand “would be
limited to activities that could be performed with the thumb and index and middle finger,” R. 43,
accurately captured all of Lee’s hand limitations. An ALJ must complete the RFC assessment based
on “all the relevant medical and other evidence in the case record,” Resendes v. Astrue, No. 0911044-NG, 2011 WL 669090, at *11 (D. Mass. Feb. 17, 2011) (internal quotations omitted) (quoting
20 C.F.R. § 404.1520(e)), including claimant’s testimony, reports of claimant’s activities, claimant’s
courses of treatment, and medical tests and opinions of treating physicians, Nguyen, 172 F.3d at 31,
34. Here, the ALJ followed the above regulations, and his failure to mention CTS at step two
implies not that he ignored Lee’s diagnosis of CTS, but that he determined that Lee’s CTS has little
or no effect on Lee’s functional abilities. Substantial evidence supports this determination. Thus,
Lee’s argument regarding his alleged severe CTS lacks merit.
2.

The ALJ’s Discrediting of Dr. Deihl’s Medical Report

Lee also contends that the ALJ’s finding that Lee has only a moderate limitation in his ability
to sustain concentration and attention is not supported by substantial evidence, because the ALJ did
not grant Dr. Deihl’s medical opinion significant probative value. (Pl. Br. 10). Generally, an ALJ
“must give more weight to the opinions from the claimant’s treating physicians, since these sources
are likely to be the medical professionals most able to provide a detailed, longitudinal picture of the
claimant’s medical impairments.” Rodriguez v. Astrue, 694 F.Supp.2d 36, 42 (D. Mass. 2010)

19

(internal quotations omitted) (quoting 20 C.F.R. § 416.927(d)(2)). However, if the treating
physician’s medical opinion is internally inconsistent or inconsistent with other substantial evidence
in the record, the ALJ may “downplay” the treating doctor’s assessment. Arruda v. Barnhart, 314
F.Supp.2d 52, 72 (D. Mass. 2004); see Coggon v. Barnhart, 354 F.Supp.2d 40, 50-56 (D. Mass.
2005) (“‘the [ALJ] may reject a treating physician’s opinion as controlling if it is inconsistent with
other substantial evidence in the record, even if the evidence consists of reports from non-treating
doctors’”) (quoting Castro v. Barnhart, 198 F.Supp.2d 47, 54 (D. Mass. 2002). Inconsistencies
between a treating physician’s opinion and other evidence in the record are for the ALJ to resolve.
Costa v. Astrue, 565 F.Supp.2d 265, 271 (D. Mass. 2008) (citing Rodriguez v. Sec’y of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).
a.

Granting Controlling Weight to Treating Physicians’ Opinions

Dr. Deihl’s opinion was not entitled to controlling weight because it was both internally
inconsistent and inconsistent with other substantial evidence in the record. Despite his assessment
that Lee is severely impaired in every category of mental functioning, R. 339-40, Dr. Deihl reported,
a week after the mental RFC assessment, that Lee was “doing well in terms of getting out” and that
he had managed “several yard projects.” R. 543. He also stated that while Lee had a “harder time
interesting [him]self to get out of [the] house,” he also had opportunities to fish, golf, and talk with
friends. R. 543. These treatment notes clearly contradict Dr. Deihl’s mental RFC assessment, which
states, among other things, that Lee is severely impaired in his ability to perform daily activities and
both simple and complex tasks. R. 339-40.
Lee’s own testimony as well as other medical records do not substantiate the severe
limitations posited by Dr. Deihl. Despite the fact that Lee reported in 2007 that he had been

20

depressed for approximately four or five years, R. 217, Lee had still been able to work until July
2005. R. 7. Moreover, Lee returned to work briefly in December 2005 and January 2006 and
carried out roofing work for his sister-in-law. R. 25-26, 182. The ALJ also correctly noted that Lee
carries out significant activities of daily living, such as mowing the lawn, cooking, camping, grocery
shopping, and leaving the house for doctors and other necessary appointments. R. 31-33. Lee’s
testimony clearly contradicts Dr. Deihl’s assessment that Lee is severely impaired in his ability to
follow instructions, maintain his personal habits, and perform both varied and repetitive tasks. R.
339-40.
Other medical records reveal that Lee was diagnosed and treated for depression, anxiety, and
hypertension on a number of occasions. E.g., 175-76, 217-18, 220-32, 250-53. However, despite
these diagnoses, the record demonstrates that Lee generally had good hygiene, normal speech and
articulation, and was able to maintain eye contact and establish a good rapport with his doctors.
E.g., R. 214-17. Dr. Phillips noted, in November 2007, that there was no evidence that Lee suffered
from obsessive-compulsive disorder, generalized anxiety, or panic disorder. R. 217. Lee also
frequently presented with a normal psychiatric status, and although he often appeared depressed and
anxious, his mood, affect, and insight were generally stable and appropriate, and he was oriented.
E.g., R. 168, 247-49, 250-51. Just days after his DLI of December 31, 2007, Lee reported that he
felt “much better on Wellbutrin.” R. 244-45. Finally, Dr. Phillips’ mental RFC assessment from
December 2007 reported that Lee had severe mental impairments, but that they resulted in at most
mild limitations in terms of Lee’s social functioning, activities of daily living, and ability to maintain
concentration, persistence, and pace. R. 230. Dr. Phillips also reported that there was no evidence
of any episodes of decompensation due to Lee’s impairments. R. 230.

21

Given the evidence above, the ALJ was on firm ground in denying Dr. Deihl’s mental RFC
assessment controlling weight due to its internal inconsistencies and extensive inconsistencies with
other substantial evidence in the record. Although some of the evidence could have supported a
different determination, “[i]t was the duty of the ALJ to resolve [any] conflicts in the evidence,” and
this Court must defer to the ALJ’s judgment as long as it is supported by substantial evidence.
Konigsberg v. Astrue, No. 08-10120-NMG, 2010 WL 1794630, at *7, 10 (D. Mass. Mar. 8, 2010)
(citing Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987)).
b.

Weighing Medical Opinions

If an ALJ decides not to afford a treating physician’s opinion controlling weight, he or she
must evaluate several factors in deciding how to weigh such a medical 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 opinion reflected in the record as a whole; 5) whether the medical provider is a specialist
in the area in which he renders his opinions; and 6) other factors which tend to support or contradict
the opinion. 20 C.F.R. § 404.1527(d). An ALJ may afford little probative value to a treating
physician’s opinion as long as he or she provides a reasonable explanation for doing so and the
contrary finding is supported by substantial evidence. See Shields v. Astrue, No. 10-10234-JGD,
2011 WL 1233105, at *7 (D. Mass. Mar. 30, 2011) (citing Monroe v. Barnhart, 471 F.Supp.2d 203,
211-12 (D. Mass. 2007)).
First, the ALJ correctly notes in his opinion that Dr. Deihl had been treating Lee for less than
four months when he assessed Lee’s mental RFC. R. 13, 337. While treating source opinions are
generally awarded more weight because they often provide a “longitudinal picture” of a claimant’s

22

impairment, see 20 C.F.R. § 404.1527(d)(2), Dr. Deihl performed Lee’s mental RFC assessment
shortly after he began treating Lee. A four-month period does not provide a “longitudinal picture”
of a claimant’s impairment, especially given the extensive record prior to Dr. Deihl’s mental RFC
assessment that does not support such severe limitations on Lee’s mental abilities. See Dietz v.
Astrue, No. 08-30123-KPN, 2009 WL 1532348, at * 6 (D. Mass. May 29, 2009) (holding that a
treating physician’s medical opinion was entitled to greater deference because the physician had
treated the claimant over a “significant period of time”).
The ALJ also emphasized the lack of supporting rationale in Dr. Deihl’s mental RFC
assessment. R. 13. Generally, the more a treating medical source presents relevant evidence,
“particularly medical signs and laboratory findings,” to support an opinion, or the better an
explanation a source provides for an opinion, the more weight an ALJ should give that opinion. 20
C.F.R. § 404.1527(d)(3); Charon v. Astrue, No. 09-11774-NG, 2011 WL 2268310, at *8 (D. Mass.
June 6, 2011). As the ALJ noted, R. 13, Dr. Deihl does not provide any explanation for his
assessment, and there is no evidence in the record that Dr. Deihl relied on any laboratory findings,
diagnostic tests, or any portion of Lee’s extensive medical record. Without any underlying
explanation for Dr. Deihl’s belief that Lee is severely impaired in every category of mental
functioning, which Dr. Deihl defines as an extreme impairment of ability to function, R. 340, the
ALJ properly emphasized this weakness in Dr. Deihl’s assessment.
Finally, the ALJ noted that Dr. Deihl’s mental RFC assessment is inconsistent with Dr.
Deihl’s subsequent treatment notes. See R. 13. As already stated, shortly after Dr. Deihl performed
the mental RFC assessment, Dr. Deihl reported that Lee was “doing well in terms of getting out” and
that he had managed “several yard projects.” R. 543. He also stated that while Lee had a “harder

23

time interesting [him]self to get out of [the] house,” he also had opportunities to fish, golf, and talk
with friends. R. 543. These subsequent treatment notes undermine Dr. Deihl’s assessment that
Lee’s has an “extreme impairment” of his abilities to pursue his interests, relate to other people,
follow instructions, and perform both varied and repetitive tasks, R. 339-40. See Arruda, 314
F.Supp.2d at 72. Given the evidence above, the ALJ provided adequate reasons for his discrediting
of Dr. Deihl’s mental RFC assessment and assertion that Lee cannot sustain employment for the
foreseeable future.
Further, as this Court has already explained, Dr. Deihl’s medical opinions are inconsistent
with much of the record as a whole. First, Dr. Deihl’s report is an outlier. Compare R. 337-40 with
e.g., R. 214-17, 220-32, 247-49, 250-51. Second, the record supports the bulk of the ALJ’s findings,
e.g., R.168, 214-217, 230, 247-49, 250-51, both as to the medical evidence and as to Lee’s daily
activities. The record indicates that Lee engaged in some employment, performed roofing work for
his sister-in-law, managed several yard projects, and engaged in significant activities of daily living,
including cooking, mowing the lawn, camping, grocery shopping, and leaving the house for doctors
and other necessary appointments. R. 25-26, 31-33, 182, 543. In sum, the bulk of the evidence
supports the ALJ’s findings and not Dr. Deihl’s minority view. See McDougal v. Astrue, No. 0940035-FDS, 2010 WL 1379901, at *10 (D. Mass. Mar. 31, 2010) (holding that if a treating
physician’s opinion is inconsistent or unsupported by the record, the ALJ will not give it significant
weight).3
3

Additionally, the timing of Dr. Deihl’s assessment suggests that if the ALJ had relied
primarily on the assessment to find that Lee was disabled, the ALJ might have erred as a matter of
law. Dr. Deihl performed the assessment in July 2008. R. 337-40. This is well outside the period
of July 28, 2005 through December 31, 2007, the period for which Lee had insured status. R. 9
(ALJ’s determination of the end of Lee’s period of insured status). Dr. Deihl’s assessment refers
to the relevant time period only in a cursory manner. R. 337-40 (stating that the severity of Lee’s
24

V.

Conclusion
Based on the foregoing, the Commissioner’s motion to affirm is GRANTED and Lee’s

motion to reverse or remand is DENIED.
So ordered.
/s/ Denise J. Casper
United States District Judge

mental impairment “likely” had existed “for years” before Dr. Deihl’s assessment but providing no
factual support for this assertion). To obtain SSDI, a claimant must demonstrate that his or her
disability was present during the period for which he or she had insured status. See 42 U.S.C. §
423(c); 20 C.F.R. §§ 404.101, 404.130-404.131, SSR 83-20, Titles II and XVI: Onset of Disability,
1983 WL 31249, at *1 (S.S.A. 1983). Dr. Deihl’s assessment has little relationship to Lee’s period
of insured status, and, as already discussed, is controverted by substantial evidence within the
relevant time period. Under these circumstances, it is possible that Dr. Deihl’s report is legally
insufficient to provide substantial evidence for an ALJ’s findings. See Carillo Marin v. Sec’y of
Health & Human Servs., 758 F.2d 14, 16 (1st Cir. 1985) (noting that although the medical evidence
“lacks precision and focus in light of the . . . relevant time period,” the ALJ could not ignore it where
it was the “only medical evidence before the ALJ” relevant to the period of insured status) (emphasis
in original); see also Resendes v. Astrue, No. 09-11044-NG, 2011 WL 669090, at *13 (D. Mass.
Feb. 17, 2011) (concluding that certain medical evidence was “not . . . sufficient information for the
ALJ to determine whether the ailments [the claimant] suffered in earlier or later years were likely
present [during the period of insured status]” because such evidence could not support “reasonable
conclusions as to [the claimant’s] physical capabilities during the relevant time period”).
25