Friedman v. Social Security Commissioner

Filing 22

Judge Patti B. Saris: MEMORANDUM AND ORDER entered: "ORDER: Defendant's Motion for an Order Affirming the Decision of the Commissioner [Docket No. 17 ] is DENIED. The Court remands this case to the Administrative Law Judge for reconsideration." (Anderson, Jennifer)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
)
Commissioner of )
Social Security, )
)
Defendant.
)
)
DAVID FRIEDMAN,

CIVIL ACTION NO.
1:10-CV-11397-PBS

MEMORANDUM AND ORDER
September 28, 2011
SARIS, U.S.D.J.
I.

INTRODUCTION

Plaintiff David Friedman (“Friedman”), who suffers from
various physical and mental ailments including hepatitis C,
Crohn's disease and depression/anxiety, seeks review of the
decision denying his application for Supplemental Security Income
(“SSI”) payments under 42 U.S.C. § 405(g). The plaintiff argues
that: (1) the Administrative Law Judge (“ALJ”) improperly
rejected the opinion of Friedman's treating therapist, Joseph
Szendro, M.Ed.; (2) the ALJ violated the treating physician rule
by failing to assign controlling weight to the opinion of
Friedman's treating physician, Thomas Capozza, M.D.; (3) the
ALJ’s unfavorable credibility finding was not supported by
substantial evidence; and (4)the Commissioner of Social Security

(“Commissioner”) failed to sustain his burden of establishing
that the plaintiff can perform other work in the national
economy.
For the reasons set forth below, the Court ALLOWS Friedman’s
motion for remand, and DENIES the Commissioner’s motion to affirm
the decision.

II. Facts
The administrative record contains the following facts.
Friedman is a forty-four year old single male. (Tr. 37.)

He was

in prison for a total of twelve years between November 1989 and
August 2007 as a result of three convictions for breaking and
entering. (Tr. 147, 157.)

He speaks English, earned a GED in

1993 while incarcerated at the Rhode Island Department of
Corrections, and has worked part-time as an interior house
painter.

(Tr. 23, 38, 142-150.)

Friedman lives with his

girlfriend and their two children.

(Tr. 37.)

In 1993, while incarcerated, Friedman began complaining of
pain related to Crohn's disease and hepatitis C. (Tr. 248-407,
552-54.)

Over time, he reported chronic abdominal pain, frequent

trips to the bathroom, fatigue and weakness. (Tr. 248-407, 416,
552-54)

Additionally, Friedman began treatment for anxiety and

depression in 1997 at the Rhode Island Department of Corrections.
(Tr. 223.)
2

A. Physical Ailments
Friedman first reported pain related to Crohn's disease1 and
hepatitis C2 at the beginning of his incarceration in November
1989. (Tr. 248-407, 552-54.)

Until his release from prison in

2007, Friedman was given regular medical testing to monitor the
status of these ailments.
On January 4, 1995, after suffering from abdominal pain and
rectal bleeding "on and off" for about one year due to his
Crohn's disease, Friedman was diagnosed with a rectal fistula and
underwent surgery. (Tr. 257-62.)

In September 1996, Friedman had

a right-sided perirectal abscess and was referred to a
gastrointestinal clinic.

(Tr. 276.)

On December 26, 1996,

Friedman complained of increasing lower quadrant pain, but by
January 9, 1997, he reported a marked decrease in pain.
623-25.)

(Tr.

The plaintiff felt "much better" since taking

prescription Sulfasalazine. (Tr. 625.)

Although Friedman's

abdominal pain would return a few months later, the pain subsided
again after he stopped taking Interferon, a drug prescribed to
1

Crohn's disease is "characterized by patchy deep ulcers
that may cause fistulas, and narrowing and thickening of the
bowel by fibrosis and lymphocytic infiltration, with noncaseating
tuberculoid granulomas that also may be found in regional lymph
nodes." Stedman's Medical Dictionary 597 (27th ed. 2000).
"Symptoms include fever, diarrhea, cramping abdominal pain, and
weight loss." Id.
2

"Hepatitis C is the principal form of transfusion-induced
hepatitis; a chronic active form often develops." Stedman's
Medical Dictionary 808 (27th ed. 2000).
3

treat his hepatitis C. (Tr. 626, 266-67, 376.)

Friedman was

reportedly "doing well" and was "asymptomatic" as of August 13,
1997. (Tr. 628.) Almost one year later, on July 8, 1998, Dr.
Thomas Hunt concluded that Friedman had a "negative abdominal
exam"; he observed a normal gas pattern and soft tissue
structure. (Tr. 299.)
Dr. Aloysius Rho also found Friedman was "asymptomatic" and
"without too much pain" on March 24, 1999, despite Friedman's
complaints of tenderness around the left side of his rectum. (Tr.
304.)

At this point, Dr. Rho concluded both Friedman's Crohn's

disease and hepatitis C were "reasonably stable." Id.
Following Dr. Rho's examination, Friedman had two liver
biopsies while incarcerated as a result of his hepatitis C.
May 7, 1999, the biopsy revealed mild chronic activity.
305.)

On

(Tr.

The next biopsy in 2004 showed that his hepatitis C was at

stage 2-3 and grade 2 (Tr. 239.)
Prompted by increased complaints of pain relating to his
Crohn's disease, Friedman had a rectal biopsy on February 4, 2000
revealing a fissure, but no fistulas, abscesses, or inflammation.
(Tr. 633.)

On March 29, 2001, Friedman had a pelvic CT scan

showing a normal pelvis and abdomen. (Tr. 211-12.) Two months
later, on May 9, 2001, Dr. David Maddock, one of Friedman's
treating physicians, performed a colonoscopy and a biopsy showing
“[n]o cause for right lower quadrant pain, which does not seem

4

severe.”

(Tr. 214-15.)

Dr. Maddock noted that if some

inflammation existed, “the changes are very subtle if real.”

Id.

One year later, on April 19, 2002, Dr. Maddock conducted an upper
GI study revealing a small hiatus hernia and mild gastric reflux,
but an otherwise negative study.

(Tr. 217.)

In early 2003, yet

another colonoscopy, prompted by Friedman's complaints of rectal
pain, uncovered "patchy colitis and maybe evidence of low grade
Crohn’s disease.” (Tr. 219.)

On the other hand, Friedman's CT

scan in February 2003 was negative, showing an unremarkable bowel
pattern, no evidence of a dominant mass, and no inflammatory
reaction.

(Tr. 556.)

Again, in November 2005, Friedman's

colonoscopy revealed a normal digital rectal exam, normal
sphincter tone, no rectal lesions, normal prostate, and no anal
lesions or abnormality. (Tr. 343.)
Friedman was released from prison in 2007 and within the
year filed his application for benefits with the SSA.
His subsequent medical history is as follows.

(Tr. 40.)

On December 26,

2007, Friedman complained of right lower quadrant pain, but
reported that his bowel movements were stable.

(Tr. 559.)

Almost two weeks later, on January 8, 2008, Friedman visited the
emergency room at St. Anne's Hospital citing fatigue primarily.
(Tr. 416.)

He was in no acute distress and denied fever, chills,

nausea, vomiting, diarrhea, weight loss, and appetite

5

disturbance.

(Tr. 415.)

A CT scan showed abnormal thickening of

the terminal ileum and a thick sigmoid wall. (Tr. 416.)
Also in early 2008, internist Dr. Vladimir Yufit conducted a
consultative examination of the plaintiff. (Tr. 431.) Friedman
reported daily abdominal pain, frequent bowel movements, and
fatigue.

Id.

Dr. Yufit, however, noted that Friedman appeared

to be a “well-developed, well-nourished, young man, not in
distress, [and] very pleasant.”

(Tr. 432.)

Dr. Yufit reiterated

Friedman’s prior diagnoses of chronic hepatitis C and chronic
Crohn’s disease.

Id.

Another state-agency physician and a specialist in internal
medicine, Dr. Mark Colb, completed a Physical Residual Functional
Capacity Assessment ("RFC") later that month, on January 29,
2008, based on a paper examination of Friedman's medical records.
(Tr. 442-50.)

Dr. Colb concluded that Friedman was capable of

occasionally lifting up to twenty pounds and frequently lifting
up to ten pounds. (Tr. 444.)

The doctor found that Friedman

could both stand and/or walk and sit for six hours in an eighthour workday, and that Friedman had unlimited ability to push
and/or pull. Id.

Additionally, Dr. Colb recorded that Friedman

may occasionally climb, balance, stoop, kneel, crouch, and crawl;
Friedman had no manipulative limitations or environmental
limitations to working in extreme cold, extreme heat, wetness,

6

humidity, or working with noise, fumes, or hazards. (Tr. 445,
447.)
On May 28, 2008, Dr. Swaran Goswami completed another
Physical RFC for the SSA. (Tr. 495-502.)

Dr. Goswami noted

identical findings to Dr. Colb's January 2008 assessment, five
months earlier.

At bottom, he found Friedman capable of

performing light work. (Tr. 496.)
Meanwhile, in 2008, Friedman's treating physicians, Dr.
Maddock and Dr. Thomas A. Capozza, and his primary care
physician, Dr. Rajaratnam Abraham, conducted various medical
tests to determine the root of Friedman's chronic fatigue and
frequent bowl movements.

Dr. Maddock, a gastroenterology and

internal medicine specialist, performed a colonoscopy on January
16, 2008.

(Tr. 437.)

The terminal ileum biopsy revealed no

diagnostic abnormalities. Id.

The random colon biopsies revealed

non-specific, mild chronic inflammation. Id.

Dr. Maddock

reported, generally, that Friedman had “done pretty well over
time" with his Crohn's disease.

(Tr. 562.)

Dr. Capozza

performed a liver biopsy on February 12, 2008, noting mild
chronic hepatitis with inflamation grade 1/4 and fibrosis stage
0/4.

(Tr. 493.)

On April 17, 2008, Dr. Abraham reported that

Friedman’s hepatitis C prognosis was “good.”

(Tr. 478.)

In June

and September 2008, however, Friedman told Dr. Abraham that his
bowel movements had increased from one per day to 4-5 per day for

7

3-4 days per week. (Tr. 571, 574.)

Nevertheless, Friedman stated

to Arbour Counseling Services, "I feel calm enough to do my job
and not have my Crohn's acting up." (Tr. 558.)
Dr. Capozza, a specialist in gastroenterology, examined
Friedman five times between February 12, 2008 and May 19, 2009.
During that time, medical testing showed some improvement, but
Dr. Capozza reported persistent abdominal pain.

After the

February 12, 2008 liver biopsy mentioned above, Dr. Capozza
ordered an endoscopy on October 17, 2008 which revealed possible
gastritis (inflammation of the stomach) and a single aphthous
ulcer (canker sore) in the distal ileum "of unclear clinical
significance." (Tr. 576.)

Overall, Dr. Capozza noted, "the

quality of the exam was good." Id.

But, on November 26, 2008,

Friedman visited Dr. Capozza for worsening rectal pain, and was
reportedly “upset/angry” at discharge because the doctor would
not prescribe narcotics for pain.

(Tr. 655-656.)

On January 14,

2009, Dr. Capozza noted that Friedman is “[d]oing well now” since
starting on Cipro and that Friedman's "[p]ain in rectum resolved
with conservative measures." (Tr. 653.)

Dr. Capozza, however,

increased Friedman's medication at that time as he was still
plagued by chronic abdominal pain. (Tr. 654.)

Four months later,

Friedman reported daily diarrhea, but he reported improvement one
month later at his next doctor's visit on May 18, 2009. (Tr.
648.)

Dr. Capozza wrote that Friedman was “[d]oing better since

8

last visit” and that he had “a great benefit from Suboxone
therapy.”

(Tr. 648.)

In August 2009, Dr. Capozza stated that he

had no medical evidence of active Crohn's disease, and that it
was "well-controlled." (Tr. 646).

Still, he noted chronic pain

complaints. (Tr. 647.)
Dr. Capozza completed a Pain Questionnaire on December 10,
2009 stating that Friedman suffered from significant, severe
pain. (Tr. 610.)

In fact, Dr. Capozza indicated that the pain is

of such severity as to preclude sustained concentration and
productivity, which would be needed for full time employment on
an ongoing sustained basis.

Id. On the Medical Source Statement

of Ability to Do Work-Related Activities (Physical), Dr. Capozza
noted that Friedman can only "occasionally" lift up to ten
pounds, "occasionally" carry up to ten pounds, and sit or stand
for one hour at a time.

(Tr. 611.)

Dr. Capozza's form also

indicates that Friedman can only use both feet "occasionally,"
and can only use his hands for "occasional" reaching, grasping,
and pushing/pulling.

(Tr. 612.)

Additionally, Dr. Capozza

claimed that Friedman can only "occasionally" climb stairs,
balance, or kneel, and that he can only "occasionally" drive a
car and work in humidity, extreme cold, or extreme heat.

Id.

On January 27, 2010, Dr. Maddock performed Friedman's final
examination before his ALJ hearing. (Tr. 661.)

During that

examination, Dr. Maddock performed a colonoscopy revealing

9

hemorrhoids and a scarred-looking terminal ileum, but an
otherwise unremarkable colon.

Id.

B. Mental Ailments
In addition to the physical ailments enumerated above,
Friedman suffers from anxiety and depression.

He first received

treatment at the Rhode Island Department of Corrections beginning
in early 1997 and periodically thereafter until his release in
2007. (Tr. 223.)

On January 4, 1997, Friedman admitted feeling

“very anxious and stressed out" when speaking with a social
worker. Id.

The next day, Friedman reported that he had

difficulty sleeping and was anxious and forgetful.

(Tr. 224.)

As a result, Friedman was prescribed Desipramine, an anti-anxiety
medication. Id.

But by February 2, 1997 Friedman reported that

he stopped taking the medication and his panic and depression
symptoms persisted.

Id.

Friedman was then prescribed Paxil. Id.

Again, on March 1, 1997, Friedman reported that he had stopped
taking the medication, so he was prescribed Buspar, another antianxiety medication. Id.
Buspar prescription.

Friedman later refused to increase his

(Tr. 225.)

Several years later, on December 8, 2003, Friedman was
prescribed medication, including Klonopin, for “explosive
disorder.”

(Tr. 229.)

On January 14, 2004, a psychiatrist at

Rhode Island Department of Corrections wrote that Friedman
“demand[ed] Klonopin” because his hands were shaking.

Id.

10

Notably, the psychiatrist speculated that his “[hand shaking]
could be put on for my benefit.”

Id.

Subsequently, on May 9,

2004, Friedman made a similar complaint about an anxious tremor.
(Tr. 230.)

The psychiatrist at the Rhode Island Department of

Corrections recommended that Friedman continue taking
prescription Elavil for his depression.

Id.

Once again, on July

4, 2004, Friedman reported that he had stopped taking Elavil
because it made him feel “bad in the morning.”

(Tr. 233.)

By the end of 2004, Friedman showed improvement.

On

September 19, 2004, Friedman’s mood was described as “stable,
except for relative mild depressive symptoms related to losing
job.”

Id.

Likewise, on December 20, 2004, Friedman’s mood was

described as stable, despite ongoing thought disturbance.

(Tr.

234.)
After Friedman's release from prison and following his SSA
application filing, Friedman visited St. Anne's Hospital
emergency room on January 8, 2008 for fatigue as well as possible
depression.

(Tr. 416.)

As a result, Friedman underwent two

consultative examinations at the direction of the SSA between
January 2008 and July 2008.

The plaintiff also attended

counseling sessions at Arbour Counseling Services ("Arbour")
between April 2008 and October 2008.
Steven J. Hirsch, Ph.D., conducted the first consultative
psychological evaluation of Friedman's overall functioning on

11

January 25, 2008. (Tr. 438.)

Such an evaluation was deemed

necessary because of the plaintiff's history of polysubstance
abuse, the possibility of depression, characterological disorder,
and somatic problems. Id.

During the evaluation, Friedman stated

that he had never seen a psychiatrist in the past and had never
received any type of inpatient psychiatric treatment. (Tr. 439.)
Dr. Hirsch reported that Friedman's hygiene skills were "good,"
that Friedman was "alert, cooperative and oriented in three
spheres (person, place, and time)," and that he did not appear to
be in any physical discomfort. Id.

Dr. Hirsch also noted that

Friedman had functional coordination, clear speech, functional
vocabulary skills, and functional memory for past and recent
personal events.

Id.

The plaintiff was “able to focus,

concentrate and attend to questions presented,” and he was able
to correctly answer questions related to cognitive skill.
439-40.)

(Tr.

Friedman’s affect was appropriate, he was not anxious,

and his frustration tolerance was good.

(Tr. 440.)

In terms of Friedman’s social/emotional functioning, Dr.
Hirsch noted Friedman’s ability to do daily household chores and
manage his own finances.

Id.

He stated that he had walked from

his home to Dr. Hirsch’s office. (Tr. 439.)

In fact, Dr. Hirsch

reported that Friedman’s ability to sit, stand, and bend “appears
to be quite functional.” (Tr. 441.)

Friedman also had a valid

12

driver’s license and was found capable of taking public
transportation independently. (Tr. 440.)

Friedman stated that he

had no difficulty sleeping and got along well with others.

Id.

He also denied having suicidal or homicidal thoughts. (Tr. 441.)
Accordingly, Dr. Hirsch reported that Friedman is “not
experiencing symptomatology associated with posttraumatic stress
disorder” or "clinical anxiety or depression."

(Tr. 440-41.)

On July 21, 2008, Friedman was referred to Dr. Mark Sokol
for a second consultative mental examination. (Tr. 504-09.) At
that time, Friedman stated that he was able to dress, bathe,
groom, cook, prepare foods, perform general cleaning and laundry,
shop, and manage his money independently.

(Tr. 507.)

Friedman

was cooperative and responsive to questions, adequately groomed,
and his gate, posture, and behavior were normal.

(Tr. 506.)

Dr.

Sokol noted that Friedman “is able to follow and understand
simple directions and instructions and perform simple rote tasks
under ordinary supervision.”

(Tr. 507.)

Friedman’s recent and

remote memory skills were intact and his intellectual functioning
was in the high average range.

(Tr. 506.)

Dr. Sokol found,

however, that Friedman’s ability to maintain attention and
concentration for job-related tasks, as well as his capacity to
perform job tasks consistently, were both mildly impaired.
507.)

(Tr.

His ability to maintain concentration may suffer, in part,

because of the memory of his sister's death, his obsession with

13

breaking and entering into buildings, and chronic fatigue. (Tr.
505.) Dr. Sokol assessed Friedman as having a Global Assessment
of Functioning, GAF, score of 55.

(Tr. 508.)

After Dr. Hirsch's and Dr. Sokol's consultative
examinations, Dr. Sumner Stone reviewed the evidence of the
record and assessed Friedman's mental RFC on August 9, 2008 and
again on September 9, 2008. (Tr. 512-25.)

In August, Dr. Stone

concluded that Friedman's functional limitations were mild. (Tr.
522.)

Upon a second look in September, Dr. Stone again found

Friedman's mental impairments were non-severe. (Tr. 535.)
Also during 2008, Friedman sought treatment at Arbour
Counseling Services.

On April 7, 2008, Mr. Joseph Szendro,

M.Ed., Friedman's treating therapist, conducted an initial clinic
evaluation. (Tr. 466.)

Friedman’s presenting problems were

listed as chronic anxiety, fatigue, and intrusive thoughts about
family tragedies, specifically the memory of his three-year-old
sister's hit and run accident.
Depressive Disorder and PTSD.
current GAF score of 41.

Id.

Friedman was diagnosed with

(Tr. 472.)

Friedman was given a

Id.

Two weeks later, on April 21, 2008, Arbour performed a
psychiatric evaluation of Friedman.

(Tr. 526-528.)

Friedman

stated that he was not depressed, but always worrying.
526.)

Friedman denied suicidality and distractability.

(Tr.
Id.

Friedman’s behavior was noted as amiable and cooperative.

(Tr.

14

528.)

He would later report agitation, irritability, and anxiety

in June of that year. (Tr. 531.)
feeling calmer.

But by July, Friedman reported

(Tr. 532.)

Friedman attended counseling sessions at Arbour with Mr.
Szendro and Danielle Federov, RNCS, between April and November of
2008.

(Tr. 530, 558, 579-88, 605-09, 640-41, 676-97.)

More than

a year later, Mr. Szendro completed questionnaires dated November
2009 and January 2010, where he opined, for the first time, that
Friedman’s psychiatric impairments “in and of themselves preclude
him from engaging in gainful employment.”

(Tr. 602-04, 639.)

On

the Affective Disorder Questionnaire, Mr. Szendro stated numerous
depressive and manic symptoms that resulted in marked
restrictions of Friedman’s ability to carry out daily activities
and maintain concentration, persistence, or pace.

(Tr. 602.)

Mr. Szendro also noted extreme restrictions in Friedman’s ability
to maintain social functioning and moderate to extreme
limitations in his ability to perform mental work-related areas
of functioning.

(Tr. 604-05.)
III. PROCEDURAL HISTORY

Friedman protectively applied for SSI on October 11, 2007
alleging an inability to work since January 1, 1990 because of
debilitating symptoms from Crohn's disease, hepatitis C, and
post-traumatic stress disorder ("PTSD") related anxiety and
depression.

(Tr. 11, 13, 123-29, 143.)

The Social Security
15

Administration denied the claim initially and on reconsideration.
(Tr. 70-71.)

Friedman then requested a hearing before an ALJ,

which was held before Judge Barry H. Best on February 25, 2010.
(Tr. 33-69.)

The hearing included testimony by the plaintiff,

David Friedman, and a vocational expert, Edward Kolandra. Id.
When questioned about his job history in the last fifteen
years, Friedman testified to working as a full-time interior
house painter in 1997, between prison terms, and then again as a
part-time interior house painter for his friend 1-2 days per week
in 2007 after his release. (Tr. 39.)

Friedman testified that he

struggled to keep pace because he was always running to the
bathroom, sometimes as many as ten trips per day, but
acknowledged that it doesn't happen all the time - - only when it
flares up. (Tr. 39-40, 42, 60.)

Furthermore, Friedman testified

that he cannot maintain full-time employment because of severe
pain, chronic fatigue, and a fear of being around people. (Tr.
42-43.) Friedman admitted that he has a "hard time" accepting
instructions from someone other than a friend; he gets angry and
paranoid as a result. (Tr. 56-57.)

Friedman speculated that this

was a result of his jail time. (Tr. 57.) As always, Friedman
denied any suicidal thoughts. (Tr. 58.) He identified Dr. Capozza
as his treating physician for his hepatitis C and Crohn's disease
and Mr. Szendro as his bi-weekly therapist at Arbour. (Tr. 43.)
At the time of the hearing, the plaintiff was taking four

16

medications - Asacol and Entocort for his Crohn's disease,
Seroquel for both his anxiety and bipolar disorder, and Valium
for just the anxiety. (Tr. 642.)
Friedman described his daily tasks as mostly household
chores - arising at 5:45 am, helping his son prepare for school,
driving his girlfriend to work, driving his son and nephew to
school, vacuuming, washing the dishes, taking out the trash, and
occasionally walking to the store, which is five minutes away resting between tasks. (Tr. 48.) He reported needing to lie down
for at least one hour, four times a day. (Tr. 53) When working as
an interior house painter, Friedman spends about half an hour at
a time on his feet; otherwise he sits or kneels as he paints
baseboards. (Tr. 50.)

The heaviest item Friedman testified to

lifting on the job was a gallon of paint to pour into a tray. Id.
Edward Kolandra, the vocational expert, testified that
Friedman could not return to his past work as an interior house
painter given his limitations. (Tr. 63-64.) On the other hand,
Kolandra testified that the plaintiff could perform light and
sedentary unskilled work activities such as that of a "small
parts assembler . . . hand sewer . . . maid . . . security
surveillance monitor . . . jewelry stringer . . . [and] carding
machine operator." (Tr. 64-65.)

Importantly, Kolandra claimed

that these jobs typically permit unscheduled work breaks every
two hours and an additional thirty or sixty minute lunch. (Tr.

17

65.)
Following this hearing, on March 25, 2010, the ALJ denied
the plaintiff's claim for benefits and concluded that Friedman
has not been "disabled" within the meaning of the Social Security
Act during the time of his application. (Tr. 23-24.)

The ALJ

found that Friedman had not engaged in substantial gainful
activity since the date of his application on October 11, 2007.
(Tr. 13.)

He agreed that the medical evidence established that

Friedman suffers from the severe impairments of Crohn's disease,
hepatitis C, and depression/anxiety, but they do not meet or
equal any of the "Listing of Impairments" necessary to obtain
benefits, despite their "more than minimal impact on Friedman's
ability to perform basic work activities." (Tr. 13-14.) Thus, the
ALJ found Friedman capable of performing a wide range of
unskilled, light work, even though he lacks the residual
functional capacity necessary to perform his past work. (Tr. 23,
15.)

Under the Social Security Regulations, light work involves

lifting twenty pounds occasionally, lifting or carrying up to ten
pounds frequently, and standing/walking or sitting for at least
six hours of the eight-hour workday. (Tr. 21.)

The ALJ found

that the plaintiff's ability to maintain concentration was
sufficient to perform simple work tasks throughout an eight hour
workday, with short breaks every two hours, and he concluded that

18

Friedman was able to occasionally interact with the public,
coworkers, and supervisors on a work-related basis. (Tr. 15.)
In making this finding, the ALJ concluded that Friedman's
allegations concerning the intensity, persistence, and limiting
effects of his ailments were not entirely credible in light of
the plaintiff's "extensive" range of daily activities and the
evidence on the record. (Tr. 20-21.)

The ALJ assigned limited

weight to the RFC assessments of Joseph Szendro, Friedman's
treating therapist, and Dr. Thomas Capozza, Friedman's treating
physician, because they appeared more restrictive than supported
by the evidence. (Tr. 18, 21.)

Instead, the ALJ relied upon the

treatment notes of another treating physician, Dr. Maddock,
Friedman's primary care physician, Dr. Abraham, and three
consultative examining sources, Dr. Steven J. Hirsch, Dr. Mark D.
Sokol, and Dr. Vladimir Yufit. (Tr. 21-23.)
The Decision Review Board (“DRB”) did not complete its
review of Friedman’s claim within the time period allotted,
rendering the ALJ's decision final, subject to judicial review.
(Tr. 1-2.); see 20 C.F.R. § 405.420(a)(2).

19

IV. STANDARD
A. Disability Determination Process
To be eligible for Social Security disability benefits, an
individual must be unable to “engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which can be expected to last for a continuous period of not less
than 12 months.”

42 U.S.C. § 423(d)(1)(A).

An impairment is

only disabling if it “results from anatomical, physiological or
psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” §
423(d)(3).
The Commissioner has developed a five-step sequential
evaluation process to determine whether a person is disabled.
See 20 C.F.R. § 404.1520(a)(4); see also Goodermote v. Sec’y of
Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).

Step one

considers the claimant's work activity - if the claimant is
engaged in "substantial gainful activity," then they are not
disabled. § 404.1520(a)(4)(i).

Alternatively, if the claimant is

not so engaged, the decisionmaker proceeds to step two, which
determines whether the claimant has a medically severe
impairment.

See § 404.1520(a)(4)(ii); see also Bowen v. Yuckert,

482 U.S. 137, 140-41 (1987).

To establish a severe impairment,

the claimant must “show that [he] has an ‘impairment or
20

combination of impairments which significantly limits . . . the
abilities and aptitudes necessary to do most jobs.’” Bowen, 482
U.S. at 146 (quoting 20 C.F.R. §§ 404.1520(c), 404.1521(b)).
If the claimant successfully establishes a severe
impairment, the third step determines “whether the impairment is
equivalent to one of a number of listed impairments that . . .
are so severe as to preclude substantial gainful activity.”
at 141 (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)).
claimant is conclusively presumed to be disabled.

Id.

Id.

If so, the
If not,

the fourth step evaluates whether the impairment prevents the
claimant from performing his past work.

Id.

A claimant is not

disabled if that claimant is able to perform his past work.
(citing 20 C.F.R. §§ 404.1520(e), 416.920(e)).

Id.

If a claimant

cannot perform this work, the burden shifts to the Commissioner
on the fifth step to prove that the claimant “is able to perform
other work in the national economy in view of [the claimant’s]
age, education, and work experience.”

Id. at 142.

If the

Commissioner fails to meet this burden, the claimant is entitled
to benefits.

Id.
B. Standard of Review

In reviewing SSDI determinations, district courts do not
make de novo determinations.

Lizotte v. Sec’y of Health & Human

Servs., 654 F.2d 127, 128 (1st Cir. 1981).

Instead, the Court

“must affirm the [ALJ’s] findings if they are supported by

21

substantial evidence.”

Cashman v. Shalala, 817 F. Supp. 217, 220

(D. Mass. 1993)(citing 42 U.S.C. § 405(g)); see also Rodriguez
Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir.
1987).
In addition to considering whether the ALJ’s decision was
supported by substantial evidence, a court must consider whether
the proper legal standard was applied.

“Failure of the [ALJ] to

apply the correct legal standards as promulgated by the
regulations or failure to provide the reviewing court with the
sufficient basis to determine that the [ALJ] applied the correct
legal standards are grounds for reversal.”

Weiler v. Shalala,

922 F. Supp. 689, 694 (D. Mass. 1996) (citing Wiggins v.
Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982)).

V. DISCUSSION
Friedman contends that the ALJ's residual functional
capacity (RFC) assessment that Friedman was capable of light,
unskilled work was not supported by substantial evidence.

He

argues that the ALJ erred in several ways - by not assigning
controlling weight to the opinion of Friedman's treating
physician, Dr. Capozza, by giving little weight to the opinion of
his therapist, Mr. Szendro, and by not properly considering
Friedman's own subjective complaints of pain.

This case presents

a close question. Because the weight given to the treating
22

physician's medical opinion is most significant to this review, I
begin with that issue.
A. Plaintiff's Physical Limitations
Friedman argues that the Commissioner's decision should be
reversed because the ALJ violated the "treating physician rule"
by failing to accord controlling weight to Dr. Capozza's opinion
which states that Friedman's physical impairments were disabling.
Dr. Capozza reported, among other things, that Friedman suffers
from "severe" pain, and that he is incapable of stooping,
crouching, or crawling, and cannot be exposed to dust, odors,
fumes, of pulmonary irritants. (Tr. 21.)
A treating source is defined by 20 C.F.R. §§ 404.1502,
416.902 as a patient's own physician, psychologist, or other
acceptable medical source who has provided medical treatment in
an ongoing way.

A treatment provider's opinion is entitled to

controlling weight if the "opinion on the issue(s) of the nature
and severity of [the claimant's] impairment(s) is well-supported
by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the] case record." § 404.1527(d)(2); see also Castro
v. Barnhart, 198 F. Supp. 2d 47, 54 (D. Mass. 2002).

Generally,

treating sources are afforded more weight because they are the
medical provider "most able to offer a detailed, longitudinal
picture of the claimant's medical impairment(s)."

§

23

404.1527(d)(2). When a treating source's opinion is not given
controlling weight, the ALJ must then determine the amount of
weight based on factors that include the length of the treatment
relationship, the nature and extent of the source's relationship
with the applicant, whether the source provided evidence in
support of the opinion, whether the opinion is consistent with
the record as a whole, and whether the source is a specialist in
the field.

§ 404.1527(d).

The ALJ, in his opinion, must give

"good reasons" for the weight he ultimately assigns to the
treating source opinion. Id.
The ALJ rejected Dr. Capozza's opinion because he deemed it
inconsistent with Friedman's statements at the hearing and with
the record as a whole.

The ALJ does rely on the treating

sources, Drs. Capozza and Maddock, who "comprise a recent
longitudinal record of treatment of approximately three years and
even going back as far as 2001." (Tr. 21.) In his view, these
records indicate that "the claimant is able to manage his Crohn's
disease and hepatitis C with medication and still perform basic
work activities." Id.

However, he gave Dr. Capozza's opinion

with respect to his pain issues and residual functional capacity
"limited evidentiary weight" because it was inconsistent with the
evidence on record, including the testimony of the plaintiff.
To start, the Court must examine whether there is a
significant inconsistency between Dr. Capozza's assessment and

24

Friedman's description of his work activity. The ALJ concluded
that the claimant engaged in "daily work as a painter." (Tr. 21)
However, the claimant said:
Yeah. Well, there's painting. The guy, when I first
got out in '07, around a yea later it's a friend of
mine. I asked him if he had any work. He hired me. I
started work for him probably right away he noticed
that I wasn't keeping up, I was running to the bathroom
all the time. I told him what I had, the Crohn's
Disease, and he told me that if I kept it up he
couldn't use me. I tried keeping up with it, I
couldn't. I needed to be near a bathroom all the time.
And he let me go after about two months. And basically
after that, probably six months, I was not working,
doing nothing. And I'd call him up, ask him if he had
anything because I'd be at home like going out of my
mind bored. I'd start thinking of illegal things again,
which I didn't want to go back. So I'd call him, ask
him if he had anything. Most of the time he said no.
But then my, maybe last year at the end towards, he's a
friend of mine. He didn't want to see me go back to
jail so he'd give me a day a week, probably five hours,
maybe six hours. (Tr. 39.)
Friedman's work as an interior house painter was sporadic sometimes one day per week, sometimes one day per month. (Tr. 3940.) He testified that chronic abdominal pain and trips to the
bathroom prevented him from working consistently. (Tr. 42-43.)
In fact, Friedman claimed that when his Crohn's disease flared
up, he would need to run to the bathroom up to ten times per day.
(Tr. 59.)

Although such a severe flareup was not reflected in

the medical records, his records did show repeated bouts of
diarrhea and 4-5 bowel movements per day.

(Tr. 648, 571, 574.)

This testimony of pain and frequent diarrhea is consistent with
Dr. Capozza's December 2009 assessment.

Friedman testified that
25

he only calls his friend for jobs on days he feels healthy enough
to work. (Tr. 47.)

Thus, Dr. Capozza's opinion that Friedman is

incapable of maintaining a full-time position is consistent with
Friedman's testimony that he worked for about 5-6 hours a week or
a month - not daily.
The ALJ also relied on the fact that plaintiff's "extensive
range of daily activities, in particular, his ability to drive a
car and work, is clearly inconsistent with his allegations of
disability." (Tr. 20).

Friedman testified that he consistently

arose at 5:45 a.m. each morning, dressed and bathed himself,
prepared his son and nephew for school, drove the children to
school and his girlfriend to work, shopped, prepared food, kept
up with household chores, used public transportation, and managed
his own finances. (Tr. 507.)

But, Friedman also testified that

such activity would exhaust him, making necessary several naps
throughout the day.
In a similar case having to do with another sufferer of
active Crohn's disease, this district court has stated "limited
activities do not contradict the impact of [the] disease on [the
plaintiff's] life . . . '[d]isability does not mean that a
claimant must vegetate in a dark room excluded from all other
forms of human and social activity.'" Rohrberg v. Apfel, 26 F.
Supp. 2d 303, 310 (D. Mass. 1998)(quoting Waters v. Bowen, 709 F.
Supp. 278, 284 (D. Mass. 1989)).

In Rohrberg, the court further

26

noted that the plaintiff carefully chose when to undertake her
activities, which often consisted of two hours of morning tasks,
to avoid pain.

Id. at 311.

As a result, her activities did not

reflect the substantial and sustained activity needed for gainful
employment. Id.
Dr. Capozza's medical opinion about Friedman's pain is
supported by his treatment notes taken as a whole.

Since taking

Friedman on as a patient, Dr. Capozza repeatedly noted Friedman's
subjective complaints of abdominal pain. (Tr. 143, 485, 549, 589,
600, 646, 653.)

His notes contain a laundry list of medication -

Ascol, Entocort, Seroquel, Valium, Cipro, Lidocaine, Suboxone
therapy, Naproxen - indicating that Friedman's symptoms were
difficult to manage. (Tr. 598, 600, 646, 648, 649, 653).

And he

ordered a number of tests to determine the root of Friedman's
chronic pain, including an endoscopy (which revealed possible
gastritis and an aphthous ulcer), a colonoscopy, and several
biopsies (revealing hemorrhoids and "scarred-looking terminal
ileum."). (Tr. 661, 664-75.) At one point, Dr. Capozza even
reported that he could not consider treating Friedman's hepatitis
C until the pain derived from the patient's Crohn's disease was
properly controlled. (Tr. 646-47.)

While Dr. Capozza's notes

demonstrate that the Crohn's disease was under control and had
improved (Tr. 21, 598, 646.), they also suggest a history of
pain.

27

Courts have pointed out that it is particularly important to
examine the doctor's treatment notes as a whole for Crohn's
disease sufferers because it is widely understood to be a highly
unpredictable disease with flare-ups.

See Hunt v. Astrue, No.

10-CV-199, 2011 WL 1226029, at *5-6 (D. Me. March 29,
2011)(holding that the ALJ erred in disregarding the
unpredictable nature of Crohn's disease and the treating
physician's warnings of problematic flareups.); Anderson v. Sec'y
of Health & Human Servs., 634 F. Supp. 967, 972 (D. Mass.
1984)(holding that in assessing plaintiff's medical reports on
her Crohn's disease,"[i]t is not reasonable to rely arbitrarily
on portions of a medical report while simultaneously ignoring the
spirit of the report.")
The ALJ relied on other medical evidence of record, notably,
the consulting SSA physicians who found Friedman capable of light
work in early 2008.

For example, the ALJ noted that consultative

examining source, Dr. Yufit, found Friedman "not in distress,"
and he weighed heavily the opinions of Drs. Colb and Goswami,
both of whom found Friedman capable of light lifting; extended
sitting, standing or walking; and without manipulative
limitations or environmental limitations to cold, wetness, noise
or fumes.

However, Dr. Capozza evaluated Friedman at different

time periods and over a longer period of time - almost two years.
When there is a significant gap between evaluations, the treating

28

source's evaluation is not undermined by the earlier consultative
evaluation. See Soto-Cedeno v. Astrue, 380 Fed. Appx. 1, *3 (1st
Cir. 2010)(holding that two evaluations did not conflict when one
and a half years passed between them).
In light of the foregoing, the court concludes that the
treating physician's opinion should have been awarded more than
limited weight in making Friedman's disability determination.
Dr. Capozza, a gastroenterology specialist, began treating
Friedman in December 2007 and saw him five times in the following
two years.

He was intimately involved in managing Friedman's

symptoms during the time period of his disability application.
Moreover, one of the key "inconsistencies" on which the ALJ
relied was in error because Friedman did not have a history of
working daily as a painter.

Although the consulting physicians

came to different conclusions, their opinions were over a year
earlier.

Thus, under § 404.1527(d), the regulatory factors

relating to the length, nature, and extent of the treatment
relationship as well as doctor speciality support giving
substantial weight to Dr. Capozza's opinion.
B. Pain
The plaintiff asserts that the ALJ erred when he found that
Friedman's testimony concerning his severe pain and fatigue was
not completely credible.
In evaluating subjective complaints of pain, the ALJ must

29

first decide whether there is a "clinically determinable medical
impairment that can reasonably be expected to produce the pain
alleged." Avery v. Sec'y of Health & Human Servs., 797 F.2d 19,
21 (1st Cir. 1986).

The ALJ must then "evaluate the intensity

and persistence of [the claimant's] symptoms so that [it] can
determine how [the] symptoms limit [the claimant's] capacity for
work." 20 C.F.R. § 404.1529(c).

The regulations acknowledge that

a person's symptoms, expressed in their subjective complaints of
pain, may be more severe than the objective medical evidence
suggests. See 20 C.F.R. § 404.1529(c)(3).

Thus, the regulations

provide six factors (known as the Avery factors) to consider when
a claimant alleges pain: (1) the claimant's daily activities; (2)
the location, duration, frequency, and intensity of the pain; (3)
precipitating and aggravating factors; (4) the type, dosage,
effectiveness and side effects of any medication taken to
alleviate the pain or other symptoms; (5) treatment to relieve
pain; and (6) any functional restrictions. See 20 C.F.R. §
404.1529(c)(3); see also Avery, 797 F.2d at 29.

The ALJ's

credibility determination is entitled to deference as long as the
ALJ makes specific findings as to the relevant evidence
considered in deciding whether to believe the plaintiff.
Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195
(1st Cir. 1987); DaRosa v. Sec'y of Health and Human Servs., 803
F.2d 24, 26 (1st Cir. 1986).

30

The ALJ failed to adequately consider Friedman's subjective
complaints of pain under the Avery factors in making his
credibility assessment.

In the decision, the ALJ focused

primarily on the first factor, Friedman's daily activities, but
he was mistaken about the frequency of Friedman's work as a
painter. (Tr. 46.)

The ALJ did not consider the intensity of the

abdominal pain and fatigue and did not address the side effects
of the medications (i.e., fatigue) for the Crohn's disease.

To

be sure, he inquired whether frequent unscheduled bathroom breaks
would preclude Friedman from gainful employment, but he excluded
from the inquiry the important fact that these urgent bathroom
trips are often accompanied by severe pain. (Tr. 65.)

As such,

the case must be remanded for a full consideration of the Avery
factors.
C. Plaintiff's Mental Health
Another challenge is based on the ALJ's decision to give
limited evidentiary weight to the mental health opinion of
Friedman's therapist, Joseph Szendro.

After careful review of

the record and the ALJ's decision, the Court concludes that
substantial evidence supported the ALJ's conclusion on this
matter.
This challenge must be analyzed under the framework provided
in Social Security Ruling 06-03p, which grants the ALJ wide
discretion in weighing a therapist's opinion. See SSR 06-03p,

31

2006 WL 2329939 (Aug. 9, 2006).

As both parties acknowledge in

their briefs, a therapist is not among the "acceptable medical
sources" listed in the Social Security Regulations. See 20 C.F.R.
§§ 404.1513(a), 416.913(a). Instead, the label of "acceptable
medical source" is limited to licensed physicians and
psychologists. Id.

As a result, Mr. Szendro's opinion did not

deserve "controlling weight," and the ALJ was only constrained by
the duty to reach a conclusion supported by substantial evidence
in the record.

See 20 C.F.R. § 416.927(d)(2) (stating that if a

medical source opinion is inconsistent with the administrative
record, it should be afforded less weight).

Still, evidence may

come from all medical sources in the record, whether the source
is "acceptable" or not. See Alcantara v. Astrue, 257 Fed. Appx.
333, 334-35 (1st Cir. 2007)(citing 20 C.F.R. §§ 416.913(d);
416.929(c)(3)).

The opinions of treating non-acceptable medical

sources are useful "to show the severity of the individual's
impairment(s) and how it affects the individual's ability to
function." Id.
Mr. Szendro opined in December 2009 that Friedman's degree
of restriction was "marked" in both activities of daily living
and in maintaining concentration, persistence, or pace; his
degree of restriction was "extreme" in social functioning with
repeated episodes of decompensation. (Tr. 22.)

The ALJ found

that such an assessment presented inherent inconsistencies within

32

the record, undermining Mr. Szendro's credibility.

The

inconsistencies discussed are, indeed, important shortcomings.
First, the ALJ found Mr. Szendro's opinion conflicted with
the plaintiff's own testimony regarding his daily functional
abilities. (Tr. 22.) Friedman testified to completing a variety
of household chores, including driving, shopping, and cleaning.
(Tr. 48-49.) He also admitted to sporadic work as a house
painter.

Although Friedman spoke extensively about his physical

limitations, he did not likewise complain of mental problems and
the record shows that Friedman repeatedly failed to take his
medication. (Tr. 224, 225, 233.)

The ALJ reasonably found that

this behavior suggests greater mental competence than Mr. Szendro
believes possible when he reported Friedman's degree of
restriction "marked" in both activities of daily living and in
maintaining concentration, persistence or pace.
Second, the ALJ identified an undeniable inconsistency
between Mr. Szendro's assessment and that of Dr. Steven Hirsch,
the consultative examining source and clinical psychologist (an
"acceptable medical source").

In January 2008, Dr. Hirsch

reported that Friedman exhibited no symptoms of depression or
anxiety. (Tr. 439.) He also noted that Friedman had functional
coordination, clear speech, and functional vocabulary skills; the
plaintiff was “able to focus, concentrate and attend to questions
presented,” and he was able to correctly answer questions related

33

to cognitive skill.

(Tr. 439-440.)

Dr. Hirsch's findings were

bolstered by the similar reports of other state agency
physicians, including psychologist, Dr. Sokol's July 2008 report.
(Tr. 504-09.)
This Court does not find persuasive the ALJ's rationale that
Friedman's subjective reports of mental disturbance are suspect
simply because of his failure to seek treatment from a physician
(psychologist or psychiatrist) for his mental health issues. (Tr.
20-21.) Case law on this matter suggests that the lack of all
medical treatment or only irregular medical treatment can
undermine the credibility of complaints of such pain or mental
disturbance. See Irlanda Ortiz v. Sec'y of Health & Human Servs.,
955 F.2d 765, 769 (1st Cir. 1991)(viewing gaps in medical
treatment as "evidence" that claimant's pain was not as severe as
alleged); Perez Torres v. Sec'y of Health & Human Servs., 890
F.2d 1251, 1255 (1st Cir. 1989)(finding that lack of treatment
supported ALJ's nonsevere finding).

Here, however, Friedman

sought mental health treatment from a therapist and nurse
practitioner consistently.

These health care providers supplied

both counseling and medication, which to the lay person would
suffice.

Even the Social Security Regulations, state that

"[w]ith the growth of managed health care in recent years and the
emphasis on containing medical costs, medical sources who are not
'acceptable medical sources,'" have "increasingly assumed a

34

greater percentage of the treatment and evaluation functions
previously handled primarily by physicians and psychologists" and
their opinions, "are important. . ." SSR 06-03p.
Still, in light of other factors, the ALJ did not err in
granting little weight to Mr. Szendro's opinion given that he is
not an acceptable medical source, that his position is called
into question by other record medical evidence, and that the ALJ
adequately explained his reasoning.
D.

Establishing Other Work in National Economy that
Plaintiff Can Perform

I turn to the ALJ's conclusion that Friedman was capable of
performing a significant number of jobs in the national economy,
other than house painting.

(Tr. 23-24.)

On this matter, the ALJ

stated that he primarily relied on the advice of the vocational
expert (VE).

During the hearing, the ALJ asked the VE, who had

previously reviewed the record and heard the plaintiff's
testimony, to consider whether gainful employment was possible
for someone with Friedman’s background, who could perform light
unskilled work, and under the following conditions:
. . . [he] would be precluded from work at unprotected
heights or work with dangerous machinery or driving on
motor equipment on the job; he’s also . . . limited in
dealing with the public; he could work with the public
on an occasional basis provided that the interaction
was limited to handoff of products or materials or
exchange of non-personal work related information; he
could work in the presence of coworkers, but not work
in a work team where ongoing work-related interaction
is frequent or continuous or physically close; he
could interact with coworkers on a casual or social
35

basis up to occasionally; and he could work with
supervisors on an occasional basis, not where
interaction, monitoring is frequent or continuous and
physically close. (Tr. 63.)
The VE concluded that Friedman was capable of performing a
number of light sedentary jobs, including small parts assembler,
security surveillance monitor, jewelry stringer, and carding
machine operator. (Tr. 64-65.)

Friedman, however, argues that

this hypothetical question wrongly failed to specify that the
individual needed to be near a bathroom, and suffered from
fatigue and other limitations found by Dr. Capozza and Mr.
Szendro.
This argument is now moot in light of the Court's decision
today, remanding the case to the ALJ for reconsideration of
certain factual findings - specifically, the weight afforded
Friedman's treating physician, Dr. Capozza's opinion and
Friedman's subjective complaints of pain.
VI. ORDER
Defendant’s Motion for an Order Affirming the Decision of
the Commissioner [Docket No. 17] is DENIED.

The Court remands

this case to the Administrative Law Judge for reconsideration.

/s/ PATTI B. SARIS
Patti B. Saris
United States District Judge

36