Correia Pires v. Social Security Administration

Filing 22

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered denying 14 Motion for Order Reversing Decision of Commissioner; granting 16 Motion for Order Affirming Decision of Commissioner (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
)
)
)
)
)
)
)
)
)
)
)

ARLENE CORREIA-PIRES
Plaintiff,
v.
MICHAEL J. ASTRUE
COMMISSIONER
SOCIAL SECURITY ADMINISTRATION
Defendant.

CIVIL ACTION NO.
10-10724-DPW

MEMORANDUM AND ORDER
July 29, 2011
Plaintiff Arlene Correia-Pires filed this appeal to
challenge of the final decision of the Commissioner of Social
Security (the “Commissioner”) denying her application for Social
Security Disability Insurance (“SSDI”) and Supplemental Security
Income (“SSI”) benefits.

Finding that the record provides

substantial evidence for the denial, I will affirm the decision
of the Commissioner.
I.
A.

BACKGROUND

Plaintiff’s Medical History
1.

Physical Impairments

Mrs. Correia-Pires suffers from a series of physical
impairments.

In July 2004, she was diagnosed with asthma,

migraines, and obesity by her primary care physician, Lucia DiasHoff, M.D.

(Adm. Rec. 246.)

She continued treatment for these

conditions throughout May 2009.

(Id. at 250-82, 286-303, 423-52,
1

505-06.)

In December 2006, Mrs. Correia-Pires sustained a work-

related injury affecting her right knee and hip, and requiring
her to use crutches.

(Id. at 201-02.)

Later that month, she

reported she was “able to bear weight somewhat better than at
her” previous visit, that her right hip was “slightly doing
better,” but that she still continued “with pain with range of
motion of the knee.”

(Id. at 367.)

At that time, Mrs.

Correia-Pires was instructed to discontinue the use of crutches
in favor of a cane.

(Id.)

Shortly thereafter, she was referred

to Dr. David Bullis for purposes of treating osteoarthritis
affecting her right knee.

(Id. at 236.)

In May 2007, Dr. M.A. Gopal assessed Mrs. Correia-Pires’s
physical residual functional capacity.

(Id. at 223-30.)

Upon

examination, Dr. Gopal found that Mrs. Correia-Pires suffered
from right knee arthritis, asthma and obesity.

(Id. at 223.)

With these conditions in mind, Dr. Gopal opined that Mrs.
Correia-Pires could stand or walk for less than 2 hours, sit for
about 6 hours in an 8-hour workday and found she had several
environmental limitations.

(Id. at 224, 227.)

Mrs.

Correia-Pires was told to avoid concentrated exposure to extreme
heat or cold, humidity, fumes, odors, gases, poor ventilation and
hazards.

(Id. at 227.)

Approximately two months later, in July 2007, Dr. Harry
VonErtfelda, M.D., performed an independent medical evaluation

2

of Mrs. Correia-Pires for worker’s compensation purposes.
at 231-34.)

(Id.

Dr. VonErtfelda noted that Mrs. Correia-Pires had a

right knee strain and arthritis, was “markedly overweight” and
walked with a cane.

(Id. at 233.)

He nevertheless opined that

she was “capable of working doing sedentary work only,” so long
as it did not include “long periods of walking or standing.” (Id.
at 234.)

Consistent with this opinion, Dr. Bullis noted in July

2007 that “[s]he could go back to work at this time for sitting
work type position.”

(Id. at 243.)

Dr. Bullis recommended in September 2007 that Mrs. CorreiaPires undergo “a right knee arthroscopy with chondroplasty
surgery to try and smooth out her cartilage.”

(Id. at 244.)

Another physician, Dr. Anthony Caprio, examined Mrs. CorreiaPires in April 2008, and confirmed Dr. Bullis’s recommendation
that she would benefit from a right knee arthroscopy.
304.)

(Id. at

He also observed that “she cannot go back to work with a

cane, but she can do deskwork with a cane.”

(Id.)

Correia-Pires underwent the surgery in July 2008.

Mrs.
(Id. at 391-

92, 394-95.)
In April 2009, Dr. Dias-Hoff completed a Medical Source
Statement regarding Mrs. Correia-Pires’s ability to do workrelated activities.

(Id. at 419-20.)

In her report, Dr. Dias-

Hoff noted that Mrs. Correia-Pires was unable to sit for more
than one hour, and to walk and stand for more than 15 minutes in

3

an 8-hour workday.

(Id. at 419.)

The total hours combined that

Mrs. Correia-Pires was able to sit, stand, and walk during an 8hour workday was limited to 3 hours, according to Dr. Dias-Hoff.
(Id.)

Finally, Dr. Dias-Hoff noted that Mrs. Correia-Pires was

subject to several environmental limitations, preventing her from
being exposed to extreme cold and heat, humidity, wetness, dust,
and fumes.

(Id. at 420.)

Later in April 2009, Mrs. Correia-Pires was treated for low
back pain and knee osteoarthritis by Dr. Parakrama Ananta and
referred to Denise Bryer for physical therapy.

(Id. at 473-74.)

In May 2009, Mrs. Bryer observed that Mrs. Correia-Pires’s
sitting tolerance was limited to one hour and that her knee
restricted her ability to stand or walk.

(Id. at 493.)

She also

noted her difficulty in performing daily tasks, such as doing the
laundry, cleaning the bathtub or vacuuming.

(Id.)

During

another visit with Dr. Ananta in August 2009, Mrs. Correia-Pires
stated that she had “noticed some improvement with her
flexibility and range of motion, but continue[d] to complain of
persistent low back pain.”

(Id. at 504.)

Upon Dr. Ananta’s recommendation, Mrs. Correia-Pires
underwent a series of facet joint injections and reported in
September 2009 “a significant improvement in her pain” and “a
much improved range of motion of lumbar spine.”

4

(Id. at 550.)

Given these improvements, Dr. Ananta recommended that she
“progress with her activities as tolerated.”
2.

(Id.)

Mental Impairments

Mrs. Correia-Pires has a limited history of mental health
conditions.

In April 2008, Dr. Dias-Hoff diagnosed Mrs. Correia-

Pires with menstrual mood swings, irritability, flashes, but
determined that her “depression” was “better/stable” in January
2009.

(Id. at 429-44.)

Starting in July through September 2009,

Mrs. Correia-Pires sought mental health treatment for depression
and anxiety.

(Id. at 528-48.)

Her therapist, Courtney Pilotte,

opined in July 2009 that she had “maladaptive health behavior,
stress related psychological effects” and assigned her a current
Global Assessment of Functioning (“GAF”) of 30.1

1

(Id. at 534.)

The Global Assessment of Functioning (“GAF”) evaluates
overall psychological functioning on a scale of 0-100 that takes
into account “psychological, social, and occupational
functioning.” AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS (“DSM-IV”), at 32 (4th ed. 2000). For
instance, a GAF in the range of 21 to 30 reflects a behavior
“considerably influenced by delusions or hallucinations” or
“serious impairment in communication or judgment” or “inability
to function in almost all areas”; of 31 to 40 indicates “[s]ome
impairment in reality testing or communication” or “major
impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood;” of 41 to 50 reflects
“[s]erious symptoms” or “any serious impairment in social,
occupational, or school functioning”; of 51 to 60 indicates
“[m]oderate symptoms” or “moderate difficulty in social,
occupational, or school functioning”; of 61 to 70 reflects
“[s]ome mild symptoms” or “some difficulty in social,
occupational, or school functioning,” but “generally functioning
pretty well, [with] some meaningful interpersonal relationships.”
Id. at 34.
5

During the month that followed, Mrs. Pilotte completed a Medical
Source Statement regarding Mrs. Correia-Pires’s ability to do
work-related activities.

(Id. at 546.)

In that statement, Mrs.

Pilotte noted that Mrs. Correia-Pires did not have any specific
limitation to understand simple instructions or to make
judgements on simple work-related decisions.

(Id.)

She noted,

however, that Mrs. Correia-Pires’s ability was extremely reduced
when she had to carry out complex, or even simple, instructions
and that she experienced “extreme” difficulty in maintaining
concentration for an extended period of time.

(Id.)

Mrs.

Pilotte concluded that Mrs. Correia’s ability to interact with
supervisors, co-workers, and the public was affected by these
impairments.
B.

(Id.)

Procedural History
1.

Plaintiff’s Application for Benefits

Mrs. Correia-Pires applied for SSDI benefits on March 14,
2007.2

(Id. at 105-112.)

Three years earlier, she had filed an

application for SSI benefits, which was later consolidated with
her SSDI application.

(Id. at 10.)

Mrs. Correia-Pires claims

disability since December 7, 2006 (i.e., the date of her work-

2

Although the ALJ’s decision states that Mrs. CorreiaPires’s application for Social Security Disability Insurance
(“SSDI”) benefits was made on March 12, 2007, the administrative
record indicates that the correct date was March 14, 2007. (Adm.
Rec. 105.)
6

related injury)3 due to arthritis in her right knee and
impairment in her right hip.

(Id. at 142.)

Both applications

were denied at the initial level of review on May 14, 2007 and
then by the Federal Reviewing Official on June 9, 2008.

(Id. at

69-80.)
2.

ALJ’s Hearing

Pursuant to Mrs. Correia-Pires’s request, an administrative
hearing was held before Administrative Law Judge, Barry H. Best
(the “ALJ”) on October 22, 2009.

(Id. at 27-66.)

Mrs. Correia-

Pires, who was forty-six years old at the time, testified about
her ability to perform daily activities.

(Id. at 35, 42-45.)

She explained that she was able to vacuum, do the laundry and
clean the bathtub, but expressed having great difficulties in
performing these tasks.

(Id. at 42.)

Typically, she said, it

would now take her “all day” to clean her house.

(Id. at 42-43.)

As to her functional limitations, Mrs. Correia-Pires testified
that she was able to lift five to ten pounds, to stand and walk
for ten to fifteen minutes or less depending on the weather, and
to sit for approximately five to twenty minutes.

3

(Id. at 44.)

Because the administrative record does not contain any
procedural papers concerning Mrs. Correia-Pires’s application for
Supplemental Security Income (“SSI”) benefits, the Administrative
Law Judge (“ALJ”) referred to the date of the SSI application,
i.e., March 9, 2004, as the onset date for purposes of these
benefits. (Id. at 10.)
7

She also recognized needing her cane at all times.

(Id. at 44-

45.)
Dr. Steven Sacks, a vocational expert, testified at the
hearing as well.

(Id. at 61-65.)

The ALJ questioned Dr. Sacks

about the following hypothetical:
Dr. Sacks, I’d like you to consider a hypothetical
Claimant of the same age, education and work as done by
this Claimant. Okay, residual capacity for work, for a
range of work at the sedentary exertional level. The
Claimant would be limited to walking and standing to even
a greater degree then [sic] implied by the usual
definition of sedentary work, so be able to walk and
stand not more then [sic] an hour in an eight-hour
workday, although she would require the opportunity to
stand at will and might stand for just a few minutes per
hour. She would not be able to, she would never be able
to climb ladders, she would not be able to climb stairs
more then occasionally and not more then [sic] a few
steps and she would only very occasionally be able to
balance, stoop, kneel, crouch or crawl. She would also be
limited in terms of environmental conditions that she
could work where air quality is comparable to that that
would be found in the public office building. She could
not work where levels of dust or smoke or scents or
perfumes or airborne ordinary irritants are at higher
levels that would be encountered in the public office
space. She could not work where she would be exposed to
temperature or humidity extremes and she’d be limited to
unskilled work tasks.
(Id. at 63-64.)

Dr. Sacks responded that a claimant with these

impairments could not perform Mrs. Correia-Pires’s past
occupations,4 which all required “semi-skilled” and “light”

4

Mrs. Correia-Pires’s past work experience includes
working as an assistant manager, cashier and greeter, crew person
at a fast food chain, aide at a doctor’s office, hardware clerk
in a retail store, and toddler teacher, all of which were beyond
her residual functional capacity. (Id. at 62-63.)
8

tasks.

(Id. at 63-64.)

He stated, however, that there were

other “unskilled” and “sedentary” jobs in the national economy,
such as receptionist, office clerk, and production inspector,
that could be performed by a claimant with the stated
limitations.

(Id. at 64.)

Dr. Sacks estimated that there were

approximately 99,000 positions as a receptionist in the national
economy and 1,900 in Southeastern Massachusetts and Rhode Island;
64,000 positions as an office clerk nationally and 2,800 locally;
and 11,000 positions as a production inspector in the national
economy and 80 and in the regional economy.

(Id.)

The estimate

for the number of available positions for production inspector
was, Dr. Sacks declared, adjusted “to accommodate portions of the
hypothetical, primarily . . . the conditions comparable to an
office environment and sitting beyond the definition of
sedentary.”
3.

(Id.)

ALJ’s Decision

On November 18, 2009, the ALJ issued a decision concluding
that Mrs. Correia-Pires was not disabled within the meaning of
the Social Security Act.

(Id. at 10-20.)

In reaching this

result, the ALJ observed that Mrs. Correia-Pires suffered from
several severe impairments, such as lumbar degenerative disc
disease, degenerative joint disease of her right knee, asthma,
obesity, depression, and anxiety, and therefore was “unable to
perform any past relevant work.”

(Id. at 13-19.)

9

The ALJ found,

however, that despite these impairments, Mrs. Correia-Pires had
the residual functional capacity to perform a wide range of
unskilled and sedentary work, “except that she requires the
opportunity to stand for a few minutes each hour,” “is limited to
a total of only one hour of standing in an 8-hour workday,” and
“is further limited to only occasional climbing, balancing,
stooping, kneeling, squatting, crouching, and crawling.”
15-18.)

(Id. at

Based on the testimony of the vocational expert, the ALJ

concluded that “considering [her] age, education, and residual
functional capacity, there are jobs that exist in significant
numbers in the national economy that [Mrs. Correia-Pires] can
perform.”

(Id. at 19-20.)

The ALJ’s decision was affirmed by

the Decision Review Board on March 5, 2010.
II.
A.

(Id. at 4-6.)

STATUTORY FRAMEWORK

Standard for Entitlement to SSDI and SSI Benefits
In order to be entitled to SSDI and SSI benefit, an

individual must be “disabled” within the meaning of the Social
Security Act.

See 42 U.S.C. §§ 423(d)(1)(A) (defining the term

“disability” in the context of SSDI), 1382c(a)(3)(A) (defining
the term “disability” in the context of SSI).

The term

“disability” refers to the inability 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 has lasted or can be expected to last for a
10

continuous period of not less than [twelve] months.”

Id.

To

constitute sufficient grounds for disability, the impairment must
so severe that considering his or her “age, education, and work
experience,” the claimant is unable to engage “in any other kind
of substantial gainful work which exists in the national
economy.”

42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

In making a determination on disability, an ALJ must apply
the following five-step sequential evaluation process:
1) if the applicant is engaged in substantial gainful
work activity, the application is denied; 2) if the
applicant does not have, or has not had within the
relevant time period, a severe impairment or combination
of impairments, the application is denied; 3) if the
impairment meets the conditions for one of the ‘listed’
impairments in the Social Security regulations, then the
application is granted; 4) if the applicant’s ‘residual
functional capacity’ is such that he or she can still
perform past relevant work, then the application is
denied; 5) if the applicant, given his or her residual
functional capacity, education, work experience, and age,
is unable to do any other work, the application is
granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001); 20 C.F.R.
§§ 404.1520(a)(4), 416.320(a)(4)).

“The applicant has the burden

of production and proof at the first four steps of the process.”
Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).

“Once

the applicant has met his or her burden at Step [four] to show
that he or she is unable to do past work due to the significant
limitation, the Commissioner then has the burden at Step [five]
of coming forward with evidence of specific jobs in the national

11

economy that the applicant can still perform.”

Seavey, 276 F.3d

at 5.
B.

Standard of Review of ALJ’s Decision
Judicial review of social security disability determinations

is authorized by Section 205(g) of the Social Security Act.
U.S.C. § 405(g).

42

Under § 205(g), the reviewing “court shall have

power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”

Id.

Judicial review is, however,

“limited to determining whether the ALJ used the proper legal
standards and found facts based on the proper quantum of
evidence.”

Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st

Cir. 2000).
The ALJ’s findings of fact must be upheld when “supported by
substantial evidence,” 42 U.S.C. § 405(g), but not “when derived
by ignoring evidence, misapplying the law, or judging matters
entrusted to experts,” Nguyen v. Chater, 172 F.3d 31, 35 (1st
Cir. 1999) (per curiam).

“Substantial evidence, in turn, means

evidence reasonably sufficient to support a conclusion.
Sufficiency, of course, does not disappear merely by reason of
contradictory evidence.”

Doyle v. Paul Revere Life Ins. Co., 144

F.3d 181, 184 (1st Cir. 1998).

12

III.

DISCUSSION

Mrs. Correia-Pires argues that the ALJ’s decision suffers
from two failings: the ALJ (A) failed to weigh some of her
exertional and non-exertional limitations properly in assessing
her residual functional capacity, and (B) erred in relying on the
vocational evidence to conclude that she retained the ability to
perform other work.
A.

The ALJ’s Assessment of the Residual Functional Capacity5
Mrs. Correia-Pires contends that the ALJ’s determination

that she had the residual functional capacity to perform
sedentary and unskilled work was erroneous because the ALJ failed
to properly (1) consider the opinion of her treating physician,
(2) assess the credibility of her subjective complaints, (3) and
include certain limitations resulting from (3) her mental and
environmental impairments, (4) her need for a cane, and (5) her
obesity.

For the reasons stated below, I find that the ALJ

appropriately weighed the evidence of record in determining Mrs.
Correia-Pires’s residual functional capacity.

5

Residual functional capacity is an administrative
“assessment of an individual’s ability to do sustained
work-related physical and mental activities in a work setting on
a regular and continuing basis,” despite his or her limitations.
Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *1
(S.S.A. July 2, 1996). The residual functional capacity
represents “not the least an individual can do despite his or her
limitations or restrictions, but the most.” Id.
13

1.

Consideration of the Treating Source Opinion
The ALJ afforded “little weight” to the opinion of Mrs.

Correia-Pires’s treating physician, Dr. Dias-Hoff, finding that
her opinion was “inconsistent with the evidence of record as a
whole.”

(Adm. Rec. 18.)

Mrs. Correia-Pires faults the ALJ for

not giving controlling weight to Dr. Dias-Hoff’s opinion, despite
her long treating relationship.
Pursuant to 20 C.F.R. § 404.1527(d)(2), an ALJ may “give
more weight to opinions from [the] treating sources, since these
sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the claimant’s]
medical impairment(s).”

20 C.F.R. § 404.1527(d)(2).

An ALJ may

nevertheless afford very little probative value to the opinion of
a treating physician when such opinion is not “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques” or is otherwise “inconsistent with the other
substantial evidence in [the] case record.”6

Id.; cf. Leahy v.

Raytheon, 315 F.3d 11, 21 (1st Cir. 2002) (“[W]hen other evidence

6

An ALJ may weigh the following factors in assessing the
probative value of a treating physician’s 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 or she renders the medical opinion; and 6) other
factors that tend to support or contradict the opinion. 20
C.F.R. § 404.1527(d)(2).
14

sufficiently contradicts the view of a treating physician, that
view appropriately may be rejected.”).
The ALJ’s conclusion that Dr. Dias-Hoff was not entitled to
significant probative weight was supported by substantial
evidence.

The ALJ rejected Dr. Dias-Hoff’s opinion that “the

severity of [Mrs. Correia-Pires]’s low back pain, which she rates
as only ‘moderate’ would preclude her from all employment on an
ongoing sustained basis.”

(Adm. Rec. 18.)

That view was in fact

contradicted by no less than four other physicians, some of whom
had been treating Mrs. Correia-Pires for an extended period of
time.

For instance, Dr. Bullis noted in July 2007 that “[s]he

could go back to work at this time for sitting work type
position.”

(Id. at 243.)

During that same month, Dr.

VonErtfelda confirmed Bullis’ view that she was capable of “doing
sedentary work.”

(Id. at 234.)

Mrs. Correia-Pires’s ability to

perform certain work was later confirmed by Dr. Caprio, as well
as by Dr. Ananta.

(Id. at 306, 550.)

For these reasons, I find the ALJ had no supportable basis
for concluding that Dr. Dias-Hoff’s opinion was inconsistent with
other medical opinions contained in the record.

I conclude the

ALJ’s decision to afford little probative value to Dr. DiasHoff’s opinion was supported by substantial evidence.
2.

Credibility of Plaintiff’s Statements and Subjective
Complaints

The ALJ found that Mrs. Correia-Pires’s statements regarding
15

her ability to perform certain daily activities were “clearly
inconsistent with allegations of inability to engage in even
sedentary work activity.”

(Id. at 18.)

Mrs. Correia-Pires

disputes the ALJ’s characterization of her daily activities.
To the extent that “the individual’s statements about the
intensity, persistence, or functionally limiting effects of pain
or other symptoms are not substantiated by objective medical
evidence, the [ALJ] must make a finding on the credibility of the
individual’s statements based on a consideration of the entire
case record.”
1996).

SSR 96-7p, 1996 WL 374186, at *2 (S.S.A. July 2,

In making this determination, the ALJ must consider a

series of factors,7 including the claimant’s daily activities, in
addition to the objective medical evidence.

Id. at *3.

The

ALJ’s credibility determination “must be supported by substantial
evidence and the ALJ must make specific findings as to the
relevant evidence [he] considered in determining to disbelieve
the [claimant].”

Rohrberg v. Apfel, 26 F. Supp. 2d 303, 309 (D.

7

Other factors applicable in evaluating the severity of a
claimant’s symptoms include the location, duration, frequency,
and intensity of the claimant’s pain or other symptoms; any
precipitating and aggravating factors; the type, dosage,
effectiveness, and side effects of any medication that the
claimant takes to alleviate the pain or other symptoms; any
treatment, other than medication, received by the claimant for
relief of pain or other symptoms; any measures used by the
claimant to relieve pain or other symptoms; and any other factors
concerning the claimant’s functional limitations and restrictions
due to pain or other symptoms. SSR 96-7 p. 1996 WL 374186, at *3
(S.S.A. July 2, 1996).
16

Mass. 1998) (quoting DaRosa v. Sec’y of Health & Human Servs.,
803 F.2d 24, 26 (1st Cir. 1986) (second alteration in original));
see also SSR 96–7p, 1996 WL 374186, at *2 (“The determination or
decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and
must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to
the individual’s statements and the reasons for that weight.).
The ALJ adequately weighed the evidence of record in
assessing the credibility of Mrs. Correia-Pires’s complaints.
During the ALJ’s hearing, Mrs. Correia-Pires testified about her
daily activities.

In particular, she stated that she was able to

vacuum, do the laundry, clean the bathtub, do some cooking, and
go to the grocery store with her husband.

(Adm. Rec. 42-43.)

She also conceded being able to clean her house, though it would
take her “all day.”

(Id.)

Based on this testimony, the ALJ

supportably found that “her extensive daily activities including
her ability to perform some household chores such as vacuuming,
doing laundry, and going food shopping are clearly inconsistent
with allegations of inability to engage in even sedentary work
activity.”

(Id. at 18.)

The mere fact that Mrs. Correia-Pires

experienced some non-negligible difficulties in accomplishing
certain daily activities, sometimes requiring her to sit and
rest, does not contradict her ability to perform sedentary work.

17

This is particularly true where, as here, no less than four
physicians confirmed her ability to do so.

Even Mrs. Correia-

Pires herself admitted less than a month prior to the hearing
that she felt “a significant improvement in her pain,” as well as
“a much improved range of motion.”

(Id. at 550.)

Accordingly, I conclude that the decision of the ALJ to give
little weight to Mrs. Correia-Pires’s subjective complaints was
supported by substantial evidence.
3.

Consideration of Plaintiff’s Mental and Environmental
Limitations

Mrs. Correia-Pires contends that, although the ALJ found
that she suffered from asthma, depression, and anxiety, the ALJ
failed to include in his residual functional capacity assessment
any mental and environmental restrictions reflecting these
impairments.
Mrs. Correia-Pires correctly cites to SSR 96-8P for the
proposition that the ALJ had to consider “functional limitations
and restrictions that result from an individual’s medically
determinable impairment or combination of impairments, including
the impact of any related symptoms.”
(S.S.A. July 2, 1996).

1996 WL 374184, at *1

The evidence of record demonstrates,

however, that the ALJ properly considered her mental and
environmental limitations in assessing her residual functional
capacity.

As to her asthma, although the ALJ did not explicitly

include any limitations in his residual functional capacity
18

assessment reflecting this impairment, he expressly referenced
this limitation in his opinion.

(Adm. Rec. 13.)

Moreover, when

the ALJ questioned the vocational expert on the hypothetical
claimant, he expressly referred to her environmental limitations.
(Id. at 63-64.)

Specifically, the ALJ stated that the

hypothetical claimant would “be limited in terms of environmental
conditions that she could work where air quality is comparable to
that that would be found in the public office building,” that she
“could not work where levels of dust or smoke or scents or
perfumes or airborne ordinary irritants are at higher that would
be encountered in the public office space,” and that she “could
not work where she would be exposed to temperature or humidity
extremes.”

(Id.)

In addition, the ALJ properly weighed the evidence of record
reciting Mrs. Correia-Pires’s mental limitations.

As noted by

the ALJ, Mrs. Correia-Pires has sought out “very little, if any,
psychiatric treatment,” given that her mental health treatment
only lasted from July to September 2009.

Id. at 17.

The ALJ

observed that Mrs. Correia-Pires’s therapist, Courtney Pilotte,8
had diagnosed her with depression and assigned a GAF of 30, but
supportably found that this disabling GAF score was inconsistent

8

The administrative record suggests that Courtney Pilotte
holds a CAGS (“Certificate of Advanced Graduate Studies”). (Adm.
Rec. 548.) However, as the ALJ noted, it is unclear whether Mrs.
Pilotte constitutes an “acceptable medical source” under 20
C.F.R. § 404.153 or § 416.913. (Id. at 17 n.4.)
19

with the evidence of record as a whole.

(Id.)

To be sure, Mrs.

Correia-Pires was also diagnosed with “depression-related
symptoms,” i.e., mood swings, in April 2008, but Dr. Dias-Hoff
noted that her depression was “better/stable” in January 2009.
(Id. at 429-44.)

Dr. Dias-Hoff’s opinion is consistent with Mrs.

Correia-Pires’s testimony at the hearing, during which she did
not complain of any specific signs of depression or anxiety,
other than to say that she feels anxious “[e]very time th[e]
phone rings.”

(Id. at 59.)

Accordingly, the ALJ’s finding that

“[n]o other evidence in the record suggests anything like a level
of psychological indicated by Ms. Pilotte, which would usually be
a marker for a need for inpatient psychiatric treatment,” is
supported by substantial evidence.
4.

Consideration of Plaintiff’s Need for a Cane

Mrs. Correia-Pires complains that the ALJ failed to consider
her need for a cane in assessing her residual functional capacity
to sedentary work.

In particular, she faults the ALJ for not

including her need for a cane in his hypothetical to the
vocational expert.
Pursuant to SSR 96-9P, “an individual who uses a medically
required9 hand-held assistive device in one hand may still have

9

Mrs. Correia-Pires’s medical need for a case is
undisputed. Dr. Dias-Hoff observed that she needed a cane to
ambulate following her work-related accident in December 2006.
(Adm. Rec. 293.) In addition, Mrs. Correia-Pires acknowledged
during the ALJ’s hearing needing her cane “all the time.” (Id.
at 44-45.)
20

the ability to perform . . . many sedentary unskilled
occupations.”

1996 WL 374185, at *7 (S.S.A. July 2, 1996).

In

these situations, the Social Security ruling states that “it may
be especially useful to consult a vocational resource in order to
make a judgment regarding the individual’s ability to make an
adjustment to other work.”

Id.

Mrs. Correia-Pires’s allegation that the ALJ did not
consider her need for a cane for purposes of assessing her
residual functional capacity is unfounded.
noted that limitation in his decision.

The ALJ expressly

(Adm. Rec. 14-15.)

More

importantly, although the ALJ did not expressly include the need
for a cane in his hypothetical to the vocational expert, he did
refer to the impact this functional limitation would have on Mrs.
Correia-Pires’s mobility.

The ALJ questioned the vocational

expert about a hypothetical claimant, who “would be limited to
walking and standing to even a greater degree then [sic] implied
by the usual definition of sedentary work, so be able to walk and
stand not more then [sic] an hour in an eight-hour workday,
although she would require the opportunity to stand at will and
might stand for just a few minutes per hour.”

(Id. at 63.)

Even

Mrs. Correia-Pires testified that she is able to stand and walk
with her cane for ten to fifteen minutes at a time.

(Id. at 44-

45.)
Given the functional limitations enunciated in the
hypothetical, the vocational expert was able to assess Mrs.
21

Correia-Pires’s residual functional capacity as limited to
sedentary work, even without express mention of her need for a
cane.

This finding is consistent with Dr. Caprio’s opinion that

“she can do deskwork with a cane.”
5.

(Id. at 306.)

Impact of Plaintiff’s Obesity

Mrs. Correia-Pires contends that the ALJ failed to explain
the impact of her obesity in assessing her residual functional
capacity.

Instead, he summarily stated in his decision that “the

provisions of Social Security Rulings SSR 00-3P10 and 02-1P have
been considered and applied.”

(Adm. Rec. 17.)

Pursuant to SSR 02-1P, the term “obesity” refers to

“a

complex, chronic disease characterized by excessive accumulation
of body fat” resulting from a combination of factors (e.g.,
genetic, environmental, and behavioral).
(S.S.A. Sept. 12, 2002).

2000 WL 628049, at *2

Obesity constitutes a “medically

determinable impairment” to be considered when assessing an
individual’s residual functional capacity.

Id. at *1.

As a

result, the ALJ must assess “the effect obesity has upon the
individual’s ability to perform routine movement and necessary
physical activity within the work environment.”

Id. at *6.

The ALJ gave appropriate weight to the impact of Mrs.
Correia-Pires’s obesity in assessing her residual functional
capacity.

The ALJ found that Mrs. Correia-Pires had a history of

10

3P.

Social Security Ruling (“SSR”) 02-1P superseded SSR 00SSR 02-1P, 2000 WL 628049, at *1 (S.S.A. Sept. 12, 2002).
22

obesity, which he qualified as a severe impairment.
13.)

(Adm. Rec.

Although Mrs. Correia-Pires’s obesity may limit her ability

to perform certain types of activities, this condition does not
necessarily affect her ability to conduct sedentary work.

The

ALJ’s decision gave probative value to medical opinions that
concluded that Mrs. Correia-Pires was able to perform sedentary
work, despite her obesity.

For instance, Dr. VonErtfelda opined

that, despite her being “markedly overweight,” Mrs. Correia-Pires
was capable of doing sedentary work.

(Id. at 233-34.)

conclusion was later reached by Dr. Caprio.

The same

(Id. at 305-06.)

Moreover, the ALJ included certain limitations which may result
from obesity in his hypothetical question to the vocational
expert.

In particular, the ALJ stated that the hypothetical

claimant “would never be able to climb ladders, she would not be
able to climb stairs more than occasionally and not more then
[sic] a few steps and she would only very occasionally be able to
balance, stoop, kneel, crouch or crawl.”

(Id. at 63.)

Consistent with the hypothetical, the ALJ concluded that, while
Mrs. Correia-Pires retained the ability to perform sedentary
work, “she is further limited to only occasional climbing,
balancing, stooping, kneeling, squatting, crouching, and
crawling.”

(Id. at 15.)

In sum, I conclude that the ALJ’s determination that Mrs.
Correia-Pires has the residual functional capacity to perform a

23

wide range of sedentary and unskilled work - albeit with certain
limitations - is supported by substantial evidence.
B.

The ALJ’s Determination of Disability
The ALJ held at the final step of the sequential inquiry

that “there are jobs that exist in significant numbers in the
national economy that [Mrs. Correia-Pires] can perform.”
19-20.)

(Id. at

Mrs. Correia-Pires contends that, based on her residual

functional capacity, the ALJ’s conclusion that she retained the
ability to adjust to other work is unsupported by substantial
evidence.
In determining whether a successful adjustment to other work
can be made, the ALJ must consider the residual functional
capacity assessment, together with the claimant’s “vocational
factors” (i.e., age, education, and work experience).
§§ 404.1520(g)(1), 416.920(g)(1).

20 C.F.R.

In addition, the ALJ may use

the Dictionary of Occupational Titles (“DOT”) and vocational
evidence to identify jobs in the national economy a claimant can
perform.

The ALJ must observe the following ground rules in

order to avoid any conflict between the DOT and the vocational
evidence:
Occupational evidence provided by a [vocational expert]
or [vocational specialist] generally should be consistent
with the occupational information supplied by the DOT.
When there is an apparent unresolved conflict between
[vocational] evidence and the DOT, the adjudicator must
elicit a reasonable explanation for the conflict before
relying on the [vocational] evidence to support a
determination or decision about whether the claimant is
24

disabled. . . .
Neither
the
DOT
nor
the
[vocational]
evidence
automatically “trumps” when there is a conflict. The
adjudicator must resolve the conflict by determining if
the explanation given by the [vocational expert] or
[vocational specialist] is reasonable and provides a
basis for relying on the [vocational expert] or
[vocational specialist] testimony rather than on the DOT
information.
SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000).
Mrs. Correia-Pires argues that the ALJ erred in relying on
the testimony of Dr. Sacks because some of the jobs he identified
exceed the “unskilled and sedentary” level of her residual
functional limitation.

The Commissioner now concedes that Mrs.

Correia-Pires does not have the ability to work as a receptionist
or as an office clerk.11

The only remaining issue is therefore

whether Mrs. Correia-Pires can perform the work of a “production
inspector.”

To defeat this proposition, she places great weight

on the fact that the DOT does not list a specific classification
for “production manager” and that the jobs that seem to match
this classification all appear to require “light and skilled”
work.

See DOT 806.261-042, 1991 WL 681422 (G.P.O. 1991)

(defining outside production inspector as “light” and “skilled”
work); DOT 806.261-046, 1991 WL 681423 (G.P.O. 1991) (defining

11

The job of “receptionist” is described in the DOT as
involving “semi-skilled work.” See DOT 237.367-038, 1991 WL
672192 (G.P.O. 1991). Likewise, the DOT describes the job
“clerk” as one that involves “light” and “semi-skilled” work.
See DOT 209.562-010, 1991 WL 671792 (G.P.O. 1991).
25

production plastic and composites inspector as “light” and
“skilled” work).
The contention — that because the DOT failed to list
“production inspector” as an occupational classification, the
testimony of the vocational expert that the plaintiff could
adjust to this position could not constitute substantial evidence
— is unpersuasive in light of the holding in Lindsley v.
Commissioner of Social Security, 560 F.3d 601 (6th Cir. 2009).12
In Lindsley, the plaintiff had raised essentially the same
argument as here.

Id. at 605.

The Sixth Circuit rejected this

argument observing that “establishing that a conflict between the
DOT and the [vocational expert]’s testimony exists simply because
an occupation described by the [vocational expert] does not
specifically appear in the DOT”, id., was insufficient.

As

Lindsley made clear, “[t]he DOT contains information about most,
but not all, occupations.”

Id. (quoting SSR 00-4p, 2000 WL

1898704, at *2 (Dec. 4, 2000) (alteration in original)).

That

some occupations are listed with the term “inspector” or
“production” does not change the outcome.

Id. (“The fact,

therefore, that a [vocational expert] and the DOT might use
12

That the vocational expert in Lindsley v. Commissioner
of Social Security testified that “production inspectors, at the
unskilled level, would typically inspect in a standing posture,”
560 F.3d 601, 604 (6th Cir. 2009), does not change the result in
this case. As will be discussed below in greater detail, Dr.
Sacks adjusted the numbers of production inspection jobs to
reflect Mrs. Correia-Pires’s sedentary limitation.
26

different terminology to describe employment positions does not
establish that a conflict exists between these sources of
evidence”.”).

For obvious reasons, the ALJ may prefer to rely in

some complex cases on the vocational expert rather than on the
DOT, given the expert’s ability to tailor his opinion to the
particular limitations of a claimant.

See SSR 00-4p, 2000 WL

1898704, at *3 (recognizing that “[t]he DOT lists maximum
requirements of occupations as generally performed, not the range
of requirements of a particular job as it is performed in
specific settings,” whereas a vocational expert “may be able to
provide more specific information about jobs or occupations than
the DOT.”).
Even assuming that a conflict existed, Mrs. Correia-Pires
cannot demonstrate that the ALJ failed to satisfy his obligations
under SSR 00-4p.

The ALJ inquired of the vocational expert

whether his opinion was consistent with the DOT and was given an
affirmative answer.

Her counsel was also afforded an opportunity

to cross-examine Dr. Sacks.

The ALJ proceeded in a manner

consistent with SSR 00-4p, see Kyle v. Comm’r of Soc. Sec., 609
F.3d 847, 858 (6th Cir. 2010), given that SSR 00-4p does not
impose a duty on the ALJ to interrogate the vocational expert any
further, see Lindsley, 560 F.3d at 606.

The affirmative duty of

the ALJ to elicit a reasonable explanation of a vocational expert
in the presence of a conflict is limited to those instances when

27

the conflict is “apparent.”

SSR 00-4p, 2000 WL 1898704, at *2.

Mrs. Correia-Pires has not demonstrated that the conflict was
“obvious enough that the ALJ should have picked up on [it]
without any assistance.”

Terry v. Astrue, 580 F.3d 471, 478 (7th

Cir. 2009) (per curiam) (quoting Overman v. Astrue, 546 F.3d 456,
462-63 (7th Cir. 2008)).

Nor could she.

When the ALJ posed the

hypothetical at the hearing, the vocational expert testified that
Mrs. Correia-Pires could work as a production inspector, but that
he needed to adjust the number of available positions for this
job to accommodate portions of the hypothetical, primarily the
condition of “sitting beyond the definition of sedentary.”

(Adm.

Rec. p. 64.) “Because the vocational expert specifically limited
his opinion to reflect sedentary work only . . . his testimony
was a perfectly acceptable basis for the administrative law
judge’s conclusions.”

Jones v. Astrue, 619 F.3d 963, 978 (8th

Cir. 2010) (quoting Jones v. Chater, 72 F.3d 81, 82 (8th Cir.
1995)).
Having found that the ALJ did not err in relying on the
vocational evidence, I conclude that his determination that Mrs.
Correia-Pires retained an ability to perform other work is
supported by substantial evidence.13
13

Although neither party has cited the case, I note the
similarity of factual background and the divergence of outcome in
a recent decision by Judge Saris. Covel v. Astrue, No. 09-10866,
2010 WL 3703267 (Sept. 16, 2010). In Covel, the vocational
expert had testified, as here, that the claimant had the residual
functional capacity to perform “sedentary and unskilled” work,
28

IV.

CONCLUSION

For the reasons set forth more fully above, I conclude that
the Commissioner, through the ALJ, had “substantial evidence” to
determine that Mrs. Correia-Pires was not disabled.
Consequently, I GRANT Defendant’s motion for an order affirming
the decision of the Commissioner (Dkt. No. 16.) and DENY Mrs.
Correia-Pires’s motion for an order reversing that decision (Dkt.
No. 14.).

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

including the job of “production inspector.” Id. at *7. Judge
Saris found that the vocational expert’s testimony was
inconsistent with the DOT, because “[j]obs that seem to match the
title ‘production inspector’ are all listed as ‘light and
skilled.’” Id. at *7 n.1. In Covel, even the defendant had
conceded that the expert’s testimony was “beyond rehabilitation.”
Id. at *7. Although claimant’s counsel had not raised this issue
at the hearing, Judge Saris explained that the ALJ should have
addressed the inconsistencies between the expert’s testimony and
the DOT, as required by SSR 00-4p, 2000 WL 1898704, at *2 (Dec.
4, 2000), and concluded that the ALJ’s failure to do so warranted
remand. Id.
The instant case differs, however, from Covel because the
expert’s testimony given by Dr. Sacks made clear that a proper
assessment of Mrs. Correia-Pires’s ability to perform the job of
“production inspection” required an adjustment of the number of
available positions for this job in the national economy. By
doing so, Dr. Sacks therefore implicitly suggested, and the ALJ
recognized, that a possible conflict may exist between Mrs.
Correia-Pires’s residual functional capacity as “unskilled and
sedentary” and her ability to perform the job of “production
inspection.” As a consequence, I am satisfied that the ALJ
appropriately considered in a nuanced fashion the relevant
vocational evidence when he concluded that Mrs. Correia-Pires
Plaintiff was not disabled.
29