Sarmento v. Social Security Commissioner

Filing 22

Judge Rya W. Zobel: MEMORANDUM OF DECISION entered granting 14 Motion for Order Reversing Decision of Commissioner; denying 17 Motion for Order Affirming Decision of Commissioner and his decision is REVERSED and REMANDED solely for calculation and award of benefits. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 10-11724-RWZ

MARIA SARMENTO
v.
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration

MEMORANDUM OF DECISION
May 1, 2012
ZOBEL, D.J.
Plaintiff, Maria Sarmento, brings this action under 42 U.S.C. § 405(g) seeking
reversal of a decision by defendant, the Commissioner of the Social Security
Administration, denying her application for disability benefits. Plaintiff maintains that the
Administrative Law Judge (“ALJ”), whose unfavorable May 11, 2010, decision became
the final decision of the Commissioner, erred in assessing her credibility.
I. Social Security Disability Insurance Framework
Pursuant to regulations promulgated by the Social Security Administration, a
person is disabled if she has an “inability to do any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 430 20 C.F.R. § 404.1505(a); 20 C.F.R.
§ 416.905(a). To meet this definition, a person must have a severe impairment that

makes her unable to do her past relevant work or any other substantial gainful work
that exists in the economy. (Id.)
In determining disability, the Commissioner follows a five-step inquiry:
First, is the claimant currently employed? If [s]he is, the claimant is automatically
considered not disabled.
Second, does the claimant have a severe impairment? A “severe impairment”
means an impairment “which significantly limits the claimant's physical or mental
capacity to perform basic work-related functions.” If [s]he does not have an
impairment of at least this degree of severity, [s]he is automatically not disabled.
Third, does the claimant have an impairment equivalent to a specific list of
impairments in the regulations' Appendix 1? If the claimant has an impairment of
so serious a degree of severity, the claimant is automatically found disabled.
....
Fourth ... does the claimant's impairment prevent [her] from performing work of
the sort [s]he has done in the past? If not, [s]he is not disabled. If so, the agency
asks the fifth question.
Fifth, does the claimant's impairment prevent [her] from performing other work of
the sort found in the economy? If so [s]he is disabled; if not [s]he is not disabled.
Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).
The ALJ's findings of fact are conclusive if supported by substantial evidence. 42
U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390 (1971); Manso-Pizarro v.
Secretary of Health and Human Services, 76 F.3d 15, 16 (1st Cir. 1996). They are not
conclusive, however, “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). Moreover, the ALJ cannot ignore “the ‘body of evidence’ opposed to his view.”
Dedis v. Chater, 956 F.Supp. 45, 51 (D. Mass.1997). This court determines “whether
the final decision is supported by substantial evidence and whether the correct legal
2

standard was used.” Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). Substantial
evidence is ‘more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson, 402
U.S. 389 at 390. In determining the substantiality of the evidence, the court will
examine the record as a whole, including whatever in the record fairly detracts from the
weight of the Secretary's decision. Rohrberg v. Apfel, 26 F. Supp. 2d 303, 306 (D.
Mass. 1998).
II. Background and Administrative Record
Plaintiff applied for Social Security Disability Insurance (“SSDI”) benefits on
November 3, 2006. The claim was denied on May 29, 2007. Plaintiff requested review
by a Federal Reviewing Official on June 26, 2007, which denied the claims on May 14,
2008. In response to plaintiff’s request for a hearing on July 10, 2008, the ALJ
conducted a hearing on June 23, 2009, and issued an unfavorable decision on August
4, 2009. The Decision Review Board selected the plaintiff’s claim for review, and on
November 6, 2009, remanded the claim to the ALJ primarily to re-evaluate the plaintiff’s
credibility and to consider her apparent category II obesity. After a supplemental
hearing on March 22, 2010, the ALJ issued a second unfavorable decision on May 11,
2010. The Decision Review Board again selected the plaintiff’s claim for review but this
time found no reason to disturb the ALJ’s decision. Thus, the ALJ’s May 11, 2010,
decision stands as the final decision of the Commissioner. In this appeal, plaintiff
challenges the ALJ’s determination that her complaints of back and leg pain are not
credible.
3

The record sets forth the following facts:
A. Plaintiff’s Injury and Lower Back Pain
The plaintiff, a certified nurse’s aid (“CNA”) for 19 years, suffered a lower back
injury while moving a patient on May 23, 2006. She was 41 at the time of the injury and
has a ninth grade education level. As a result of her injury, she was immediately
admitted and treated for three days at Charlton Hospital. Thus began a regimen of
physician, physical therapy and pain clinic visits.
Dr. Farrel Douglas’ May 24, 2006, consultation notes recount the accident as
follows: plaintiff “was pushing a patient to turn them [sic] when she suddenly felt a pop
in her low-back and had sudden pain in her low-back. She continued working and as
she bathed patients the pain progressively worsened. She then helped boost a patient
up in bed and when she attempt to lift patient during the boost her low-back pain
suddenly increased and she was unable to move because of the excruciating low-back
pain.” Dr. Douglas, a neurologist, noted that plaintiff “appeared to have mechanical lowback pain caused by her work activities, especially the heavy lifting.” Dr. Douglas noted
that plaintiff had an episode of low-back pain in 2000, he also reviewed her MRI which
showed a disc bulge at the L4-L5 level, and he noted that the “loss of hydration in the
disk is consistent with degenerative disc disease.”
On June 9, 2006, Dr. James Keffer’s, D.O., physical examination of plaintiff
revealed “very significant tenderness to palpation throughout the lower lumbar
paraspinal regions, including in particular the midline of the lower lumbar spine at
approximately L4-L5 and L5-S1 levels.” He agreed that the “MRI report indicates some
4

broad disc bulging at L4-L5... [and] disc degeneration focal to L4-L5 with disc
desiccation,” and concluded that it is likely this disc causing her problem. On June 14,
2006, Dr. Keffer administered an epidural steroid injection; however, plaintiff reported
this did not relieve her pain. Although Dr. Keffer noted that plaintiff’s MRI did not show
evidence of nerve impingement he explained “she may have some radiculitis of a
chemical nature.” On July 31, 2006, he reported that plaintiff exhibited “decreased
pinprick in the distal right leg including L4, L5 and S1 dermatomes.”Although he did not
believe plaintiff was a candidate for surgery, he recommended an “aggressive” spine
rehabilitation program with pain management.
From August 2006 until October 2006, plaintiff was treated at Fall River Physical
Therapy. The treatment notes reflect her complaints about difficulties with activities of
daily living and noted that sitting, walking, standing, bending, stooping and sleeping
aggravated her pain.
On September 9, 2006, Dr. Douglas again examined plaintiff and concluded that
she had pain with straight leg raising and was “tender in the midline from L4-S1 with
mild sacroiliac joint tenderness bilaterally.” His impression was that plaintiff suffered
from mechanical low back pain although there was no evidence of radiculopathy.1

1

“Radiculopathy refers to disease of the spinal nerve roots. Radiculopathy produces pain,
numbness, or weakness radiating from the spine... Pain may be felt in a region corresponding to a
dermatome, an area of skin innervated by the sensory fibers of a given spinal nerve or a dynatome, an
area in which pain is felt when a given spinal nerve is irritated... Radiculopathies are categorized
according to which part of the spinal cord is affected. Thus, there are cervical (neck), thoracic (middle
back), and lumbar (lower back) radiculopathies. Lumbar radiculopathy is also known a sciatica...
Radiculopathy is a possible diagnosis when numbness, pain, weakness, or paresthesia of the extremities
or torso are reported by a patient, especially in a dermatomal pattern.” Stacey L. Chamberlin (Editor),
Brigham Narins (Editor), Larry Gilman, PhD, Gale Encyclopedia of Neurological Disorders,
GALE-NEURO 3435200297 (2006).

5

On October 16, 2006 plaintiff had another MRI performed at the Fall River
Diagnostic Center which again indicated a general bulge of the disk at L4-L5, and
indicated a flattening of the ventral aspect of the thecal sac but without significant
alteration of the nerve roots and degenerative desiccation.
Next, from October 2006 to January 2008, plaintiff was treated at St. Ann’s
Hospital Pain Management Center by attending physician Dr. Allison Gorski. Upon Dr.
Gorski’s first examination, she noted that plaintiff appeared “to have some nerve root
irritation possibly from the disk bulge” and that there “may be some leakage of disk
material causing the inflammation and the positive tension sign on her right leg that
radiates into her right thigh.” Dr. Gorski’s physical exam revealed a positive straight leg
raise on the right. Dr. Gorski recommended another epidural steroid injection, rest, “and
then hopefully return to work.” By December 2006 plaintiff again indicated that she did
not experience any significant relief from the second injection and was reporting pain at
a level of 8 on an 8/10 scale. At this point, plaintiff was also taking a panoply of
prescription drugs directed at pain relief including “Lidoderm patches, Tizanidine,
Tramadol, Lyrica and Cymbalta.” In August 2007, Dr. Gorski performed a nerve root
block procedure which plaintiff reported was also unsuccessful; thereafter, Dr. Gorski
suggested spinal cord stimulation treatment.
On February 1, 2007, Dr. Joseph Doerr, a physician at Prima Care Diagnostic
Rehab, performed an electrodiagnostic test (also known as an “electromyography” or
“EMG”) which suggested right S1 radiculopathy. Dr. Doerr’s examination of plaintiff also

6

revealed decreased sensation in the lateral foot, decreased right ankle jerk, and diffuse
tenderness. He noted plaintiff “remains disabled in terms of any prolonged sitting.” In
June of 2007, Dr. Gorski agreed with Dr. Doerr’s findings that the EMG exhibited
radiculopathy, as did Dr. Phillips who reviewed the results on May 29, 2007.
On April 5, 2007 Dr. William Straub, a non-examining Disability Determination
Services (DDS) consultative physician, reviewed plaintiff’s medical record and
concluded that she had mechanical low back pain which restricted her to work at light
levels of exertion with the only limitation being that she could only stand or walk for
approximately two hours a day.
The treatment notes of Dr. Manuel Mendes, plaintiff’s primary care physician,
recount her complaints of pain in her lower back radiating into her right buttocks and
down her right leg, limited range of motion, muscle spasms and lumbar tenderness. In
September 2008, Dr. Mendes completed a physical capacities assessment form. He
opined that in an eight-hour workday, plaintiff could only sit one hour, stand two hours,
and walk one hour and noted that plaintiff requires frequent alterations of position. He
regularly noted that plaintiff experienced severe pain, and that on at least one occasion
she became bedridden for several days. He limited the plaintiff to lifting and carrying
five pounds and no bending, crawling or climbing. He stated there was no evidence that
plaintiff was a “malingerer,” and that plaintiff’s pain was so severe that it interfered with
her activities of daily living, concentration, sleep, and social relationships. Dr. Mendes
had treated plaintiff for many years before her injury, as his treatment notes begin in
2001.
7

B. Plaintiff’s Depression and Other Mental Impairments
Shortly after plaintiff’s back injury, plaintiff began to experience spates of
depression and anxiety which gradually became worse. In September 2006, Dr.
Douglas noted that she appeared moderately depressed. In November 2007, Dr.
Gorski indicated that plaintiff exhibited a considerable amount of anxiety and
depression, so much so, that she could not recommend proceeding with the spinal cord
stimulation therapy until it was resolved; she also prescribed Wellbutrin, an
antidepressant. On May 15, 2007, Dr. Robert Sharpley, an examining consultative
physician, met with plaintiff and she explained to him that she had difficulty engaging in
normal activities, relied upon her husband and daughters to do household chores, had
no hobbies, and constantly felt sad and depressed. Dr. Sharpley diagnosed recurrent
depressive reaction and noted plaintiff was preoccupied with her physical condition. On
May 24, 2007, Dr. Fischer, a non-examining DDS consultative physician, reviewed Dr.
Sharpley’s report and concluded that the plaintiff’s depression was a moderate
limitation on her ability to carry out instruction, maintain concentration, operate
according to a schedule, be punctional, and complete a normal workday.
Beginning in June 2007 and through 2010, plaintiff was treated for depression
by Maria Ferreira, M.S.W., L.I.C.S.W., a clinical therapist. Ms. Ferreira’s notes indicate
that plaintiff exhibited feelings of guilt and low self esteem stemming from her inability
to work and to accept her medical condition, together with her need to seek help with
daily activities from her mother. In her Social Security Administration questionnaire
dated September 25, 2008, Ms. Ferreira disagreed with Dr. Fischer’s conclusions and
8

found instead that as a result of depression and anxiety plaintiff was markedly unable
to respond appropriately to supervision, co-workers, or the pressures of a routine work
environment. In September 2009, plaintiff began treatment at the Figman Psychiatric
Group for major depressive disorder, impaired sleep, social isolation, and panic
attacks.
C. June 23, 2009 Administrative Hearing
On June 23, 2009, the ALJ held an administrative hearing at which plaintiff
testified that she was in constant “24/7 pain,” and that although the degree of the pain
varied, it was typically between a 5 and 6, but reached as high as 8 and that cold and
damp conditions aggravate the pain. She stated she is able to sit for only 15-20
minutes before feeling uncomfortable and can stand or walk for only 10 minutes. She
indicated that she does drive to visit her doctors and to pick up her mother who only
lives five minutes from her and who often spends the day with her until her husband
returns home from work. She testified that her mother, two daughters, and husband
perform the household chores, that she can prepare a simple meal such as toast, that
she has no hobbies, does not read or spend time with friends and only watches TV
sparingly. She is unable to shave her legs or clip her toenails because she cannot
bend, and she only gets four hours of sleep on an average per night due to her inability
to stay in one position very long and because she experiences racing thoughts. The
ALJ questioned her briefly on her prescription medications and plaintiff indicated that
they cause her to adopt a mellow demeanor, drowsiness and, at times, induce nausea
and vomiting.

Dr. Stephen Kaplan, an internist and rheumatologist, testified as
9

the medical expert and guided the ALJ through the record in great detail. He
concluded “We have a lady with what appears to be a very, very significant – severe –
what we call mechanical back pain... [from] muscle spasm, which is clearly and well
documented irritating the S1 nerve producing pain in the distribution of the S1 nerve
down into the right leg and marked limitation of movement with her back, which again
had been consistent throughout the record.” He noted that plaintiff’s complaints “have
been very consistent problems of both pain and the S1 radiculopathy.”
The ALJ then asked specifically if plaintiff’s condition was operable, Dr. Kaplan
answered in the negative explaining that “there is nothing to operate on in terms of a
mechanical cause of the mechanical back pain.... [because the term] mechanical [ ]
means [ ] that its primarily related to the muscles.” In response to the ALJ’s request for
ALJ comment on Dr. Doerr’s recommendation that plaintiff not engage in prolonged
sitting, Dr. Kaplan agreed because for “someone with radiculopathy and severe muscle
spasms ... sitting actually produces more pressure on the back than any other position.”
To the ALJ’s question whether putting aside the issue of pain plaintiff would be
capable of light exertion, Dr. Kaplan gave the qualified response “well, if you put aside
the question of pain, yes.”
D. The ALJ’s August 4, 2009 Decision
With respect to the five-step inquiry, the ALJ found that plaintiff met the insured
status requirements of the Social Security Act; that the claimant has not engaged in
substantial gainful activity since May 23, 2006 (step 1); that she had the following
severe impairments: lumbar degenerative disc disease, chronic pain syndrome, and
10

depression (step 2). She determined that plaintiff had the residual functional capacity to
perform light work with the limitation that she should not stand for more than two hours
per day, and with a moderate limitation in concentration and responding appropriately
to customary work pressures. She found that plaintiff’s impairments were not equivalent
to any of the conditions described in Appendix 1 of the regulations (step 3), but that she
could no longer perform as a CNA (step 4). At step 5, the ALJ determined that there
were a significant number of jobs available in the national economy taking into account
the claimant’s age, education, work experience, and residual functional capacity, such
as a “foot press operator, assembler, general production laborer and laborer.” The ALJ
did not credit plaintiff’s assertion of pain because “she is able to shower, dress herself,
drive a car to her doctor’s appointments, and to pick up her mother... [and] the claimant
sat quite comfortably at hearing, which lasted over 1 hour.”
The ALJ gave little weight to Dr. Mendes’ lift/carry and strength assessment and
his notation that plaintiff “becomes bedridden at times secondary to pain” because they
were inconsistent with Dr. Doerr’s and Dr. Mendes’ prior assessments of plaintiff
exhibiting normal to good strength. She also gave Ms. Ferreira’s assessment of
plaintiff’s social functioning little weight. Ms. Ferreira’s suggested degree of plaintiff’‘s
mental impairment is inconsistent with her not being treated by a psychiatrist or clinical
psychologist.
E. Review Board Remand
The Decision Review Board remanded the decision to the ALJ for resolution of
three issues. First, it found that the decision did not contain an evaluation of Dr.
11

Kaplan’s testimony and therefore the ALJ’s credibility determination was not supported
by substantial evidence. Second, according to the evidence, the plaintiff’s body mass
index put her in a category of class II obesity which was not considered by the ALJ.
Third, it directed the ALJ to obtain the treatment records of Dr. Phillips and, if
warranted, a medical source statement from him about what activities the plaintiff could
still engage in despite the constellation of her impairments.2
F. March 22, 2010 Supplemental Hearing
After the remand the ALJ conducted a supplemental hearing on March 22, 2010;
again plaintiff, a medical and vocational expert, testified. Plaintiff’s testimony was
nearly identical to her original testimony. However, she added, consistent with Dr.
Mendes’ treatment notes, that on some days she was unable to get out of bed because
her pain was so severe and that she had to use a bed pan to relieve herself during that
time. She also stated that the reason she does not spend time with friends is because
she does not “want anybody to see me the way I was and who I am now.” She
explained that the longest she could sit in a chair even with shifting and occasional
walking would be a half hour. At the hearing Dr. Edward Spindell, an orthopedic
surgeon, testified as a medical expert in lieu of Dr. Kaplan. He acknowledged that two
MRIs showed mild bulges in plaintiff’s disc at the L4-L5 and L5-S1, and that she had
an EMG that was determined to be suggestive of S1 radiculopathy; however, he noted
that the examination by Dr. Phillips, a neurosurgeon, and Dr. Douglas, a neurologist,

2

It is unclear from the record whether or not this happened; however, plaintiff does not press the
issues in her appeal.

12

were unremarkable. He stated that in his opinion plaintiff’s neurological findings have
generally been normal, and that there was no objective basis for plaintiff’s pain or for
Dr. Mendes’ or Dr. Doerr’s finding that plaintiff should not engage in prolonged sitting.
Dr. Spindell acknowledged that plaintiff appeared to have “considerable psychiatric
complaints.” There were no significant differences from the initial hearing of the
vocational expert’s testimony.
G. The ALJ’s May 11, 2010 Decision
The ALJ made the same step 1, 3, and 4 findings, but now at step 2 to the list of
severe impairments disc radiculopathy, obesity, and anxiety disorder. Nevertheless, at
step 5 the ALJ again determined that there were a significant number of jobs available
in the national economy appropriate for plaintiff such as “small parts assembler,
cashier, parking lot attendant, systems surveillance monitor, jewelry stringer and
carding machine operator.”
The ALJ decided that plaintiff’s medically determinable impairments could
reasonably be expected to cause her alleged symptoms but that the intensity,
persistence and limiting effects of these symptoms were not credible to the extent they
were inconsistent with her being able to perform light work. She further found plaintiffs
testimony that she “becomes bedridden at times” unsupported by objective medical
evidence in the record specifically citing the mild symptomatology revealed by the
MRIs. She again gave little weight to Dr. Mendes’ physical capacities assessment for
the same reasons as before.
The ALJ appears to have discredited Dr. Kaplan’s conclusions in a footnote on
13

the basis that he is “only a Board certified internist,”3 and his recommendations were
inconsistent with the assessment by Dr. Spindell. The opinion did not address Dr.
Kaplan’s testimony regarding the consistency of plaintiff’s complaints when viewed
against the objective medical basis for plaintiff’s symptomatology.
The ALJ concluded that plaintiff’s alleged symptoms and disabling limitations are
inconsistent with the “diagnostic findings,” and she opined that plaintiff’s own treating or
examining physicians would have recommended back surgery had they been as severe
as claimed.
In this decision, the ALJ made no mention of plaintiff’s demeanor at either
hearing, nor did she discuss at all whether plaintiff’s daily activities were consistent with
her claimed functional limitations as she had done in the first decision.
III. Analysis
The major dispute in this case centers on the adequacy of the ALJ’s evaluation
of plaintiff’s complaints of pain caused by her lower back injury.
When assessing a claimant's allegations of pain, the ALJ must first find that the
individual's impairments, as demonstrated by "medical signs and laboratory findings,"
"could reasonably be expected to produce the symptoms." Social Security Ruling
("SSR") 96-7p, 61 Fed.Reg. 34,483 (July 2, 1996). If a claimant meets that threshold,
as the ALJ found plaintiff did, the ALJ must evaluate whether "the intensity,

3

Plaintiff correctly notes that Dr. Kaplan is a rheumatologist as well. Rheumatism is defined by
Stedman’s Medical Dictionary (27th Ed., 2003) as “term applied to various conditions with pain or other
symptoms of articular origin or related to other elements of the musculoskeletal system.”

14

persistence, and functionally limiting effects" of the pain would affect the individual's
ability to work. SSR 96-7p. This second step necessitates an appraisal of the credibility
of the plaintiff's statements regarding her symptoms and their functional effects.
The First Circuit has explained that when evaluating the credibility of a disability
claimant’s subjective allegations of pain, the ALJ must inquire into six factors. Avery v.
Sec'y of Health & Human Servs., 797 F.2d 19, 29 (1st Cir. 1986). These factors (the
“Avery factors”) are:
1. The nature, location, onset, duration, frequency, radiation, and intensity of any
pain;
2. Precipitating and aggravating factors (e.g., movement, activity, environmental
conditions);
3. Type, dosage, effectiveness, and adverse side-effects of any pain medication;
4. Treatment, other than medication, for relief of pain;
5. Functional restrictions; and
6. The claimant's daily activities.
The ALJ may not rely on the support or lack of the objective medical evidence
alone in determining the claimant’s credibility.
As SSR 96-7p warns:
Because symptoms, such as pain, sometimes suggest a greater severity
of impairment than can be shown by objective medical evidence alone,
the adjudicator must carefully consider the individual's statements....
[Complaints regarding such symptoms] may not be disregarded solely
because they are not substantiated by objective medical evidence.... 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.
Nguyen v. Chater, 172 F.3d 31, 34 (1st Cir.1999) (per curiam) (ALJ required to
“consider evidence in addition to medical tests”); Da Rosa v. Sec'y of Health & Human
15

Servs., 803 F.2d 24, 26 (1st Cir.1986) (same); Pires v. Astrue, 553 F. Supp. 2d 15, 23
(D. Mass. 2008) (“the ALJ may not reject evidence elucidated during the Avery inquiry
solely based on inconsistency with objective medical evidence.”); Valiquette v. Astrue,
498 F. Supp.2d 424, 433 (D. Mass. 2007)(“dissonance between the objective medical
assessment and the plaintiff’s description of the level of pain [experienced] ... merely
poses the question of the credibility of [plaintiff’s] complaints, it does not answer it.”).
An ALJ is “free to disbelieve Plaintiff’s subjective testimony;” however, he or she
“‘must make specific findings as to the relevant evidence he considered in determining
to disbelieve [him or her].’” DaRosa, 803 F.2d at 26.” Avery v. Astrue, CIV.A.
06-30143-KPN, 2007 WL 2028881 (D. Mass. July 10, 2007). Generally, even when an
ALJ sufficiently develops the record by inquiring into the Avery factors, he or she must
still perform a “thorough discussion and analysis” and identify “the weight [s]he gave or
(decided not to give) to Plaintiff’s testimony with regard to all six Avery factors.” Id. at *7
(internal citations omitted).
While the ALJ did sufficiently develop the record with regard to the Avery
factors, she did not adequately explain either her application of them, or the reason for
disregarding any of the evidence supportive of plaintiff other than her disagreement
with the objective medical record. Specifically, the ALJ cited mild MRI results and the
fact that none of plaintiff’s physicians recommended surgery as the basis for her
determination. However, as the relevant authority directs, a disconnect between the
objective medical record and plaintiff’s testimony merely starts the credibility analysis; it
does not conclude it.
16

Further, the ALJ did not address Dr. Kaplan’s in-depth review of the entire
medical record and his evaluation of the consistency of plaintiff’s complaints over time
and across physicians. Although the ALJ mentioned plaintiff’s 19-year prior work
history as a CNA, she did consider it in her decision. Irlanda Ortiz v. Sec'y of Health &
Human Services, 955 F.2d 765, 766 (1st Cir. 1991) (“where the objective medical
evidence does not support the degree of pain alleged by claimant, the ALJ also must
consider the daily activities described by claimant and his prior work record”).
Moreover, while the ALJ did add obesity as one of plaintiff’s severe impairments
at step 3 she did not address the effect of plaintiff’s weight gain on her condition and,
by extension, her credibility. The ALJ noted that plaintiff was 5' 2" with a body weight of
200 pounds. This weight gain certainly corroborates plaintiff’s accounts of the effect of
debilitating pain on her emotional well being and ultimately on her everyday activities.
Nearly every physician in the record also noted that plaintiff had a muted affect and
was suffering from depression, and its onset coincided with her injury and progressively
worsened.
In sum, the record paints a picture of a woman (1) who was gainfully employed
for 19 years; (2) who had a serious workplace accident requiring three days of hospital
care, (3) that resulted in (I) years of treatments and therapies and prescription drugs
(all of which have proved relatively ineffective), (ii) remarkably consistent complaints of
pain (operating in the same manner) over a lengthy period under the care of numerous
physicians, and (iii) severe limitations on her daily activities; and (4) whose symptoms
have induced depression and significant weight gain. The ALJ simply did not provide
17

any reason why plaintiff’s complaints of pain and description of her functional
limitations should not be believed, other than that they appear to be inconsistent with
parts of the medical record. That, as a matter of law, is not enough. Therefore, the
determination of the ALJ to reject plaintiff’s credibility is not supported by substantial
evidence.
Given the lengthy history of this case, the number of reviews and contradictory
decisions, and the extensive record, further consideration is not warranted. See Larlee
v. Astrue, 694 F. Supp. 2d 80, 87 (D. Mass. 2010)(citing Seavey v. Barnhart, 276 F.3d
1, 13 (1st Cir. 2001)); Rohrberg, 26 F. Supp. 2d at 312 (internal citations omitted).
IV. Conclusion
Plaintiff’s motion for an order reversing the Commissioner’s denial of benefits is
ALLOWED. The Commissioner’s motion to affirm is DENIED, and his decision is
REVERSED and REMANDED solely for calculation and award of benefits.
May 1, 2012
DATE

/s/Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

18