Smith v. Colvin

Filing 25

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. The Court ALLOWS Defendant's Motion to Affirm the Commissioners Decision 23 , and DENIES Plaintiff's Motion to Reverse and Remand the Decision of the SSA 18 . (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT
DISTRICT OF MASSACHUSETTS
KERRIN R. SMITH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner,
Social Security
Administration,
Defendant.

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Civil Action No. 13-10796-PBS

MEMORANDUM AND ORDER
September 22, 2014
SARIS, U.S.D.J.
I. INTRODUCTION
Plaintiff Kerrin R. Smith filed this action pursuant to 42
U.S.C. §§ 405(g), 1383(c)(3) for judicial review of the decision of
the Administration Law Judge (“ALJ”) for the Social Security
Administration (“SSA”) denying his application for Supplemental
Security

Income

(“SSI”)

benefits.

He

moves

to

reverse

the

Commissioner’s decision, arguing that (1) the ALJ failed to give
proper

weight

to

the

treating

physician’s

account

of

his

disabilities, and (2) the ALJ’s vocational conclusions were not
supported by substantial evidence. Defendant, meanwhile, moves to
affirm the Commissioner’s Decision.
For the reasons set forth below, the Court DENIES Plaintiff’s
Motion to Reverse and Remand the Decision of the SSA (Docket No.
1

18), and ALLOWS Defendant’s Motion to Affirm the Commissioner’s
decision (Docket No. 23).
II. FACTS
At the time of the hearing before the ALJ on March 15, 2012,
plaintiff was 40 years old and had a 17 year-old daughter. R. 19,
41. Plaintiff graduated from high school and completed two years of
college credits. R. 162. Plaintiff lives with his mother and
stepfather and contributes to the household by giving his mother
his Department of Transitional Assistance benefits. R. 42. His
intermittent work history, spanning the period from 1993 to 2006,
included employment as a driver, a telemarketer, and some light
painting jobs. R. 187-192.
A. Medical History
In 1990, plaintiff was shot four times and sustained gunshot
wounds to his back, left arm, and right leg. R. 39. He alleges
several debilitating physical conditions, including degenerative
disc disease, bilateral hip disorder, and right leg disorder, which
arose from the gunshot wounds and subsequent surgeries. R. 161-62.1
He also alleges that these conditions have deteriorated to such an
extent that they prevent him from performing any substantial gainful
activity so that he is no longer able to work. R. 39-40.

1

Plaintiff also has various mental ailments,
anxiety and depression, that are not at issue.
2

including

1. Degenerative Disc Disease
In 1990, plaintiff had a laminectomy and fusion performed on
his spine immediately after he suffered gunshot wounds to his back.
R. 227. He has suffered from chronic back pain ever since the
shooting. R. 395. From 1990 to 2008, plaintiff’s residual pain
continued to increase, and he developed hip and right leg pain as
his back pain worsened. R. 17.
In January 2008, plaintiff made two emergency room visits with
complaints of back pain. R. 299-305. In April 2008, he was evaluated
by Tony Tannoury, M.D., an orthopedist. R. 417. Plaintiff reported
back and right leg pain which worsened upon sitting and standing.
Id. Dr. Tannoury found diffuse lower back tenderness and noted that
plaintiff was able to bend and touch his knees and perform bilateral
straight leg raises. R. 418-19. Dr. Tannoury diagnosed him with
degenerative disc disease, prescribed physical therapy, and referred
him for a CT Scan to assess for any neurological compression. R.
419.
In May 2008, a CT scan performed at Boston Medical Center
revealed lumbar postoperative changes at L4-L5 with shrapnel in the
spinal canal, bilateral L5 spondylolysis and degenerative changes
at L5-S1. R. 498-99. By July 2008, plaintiff reported worsening back
symptoms, despite his physical therapy. R. 434.

3

In

January

2009,

Dr.

Tannoury

identified

plaintiff

as

a

candidate for back surgery; and in March 2009, he performed L5-S1
transforaminal lumbar inter-body fusion on plaintiff. R. 243-45,
259. In a follow-up exam the next month, plaintiff reported that his
deep-seated pain had resolved and denied any numbness or tingling
in his legs. R. 428. A subsequent X-ray of the lumbar spine on April
15, 2009, showed improvement in the area following surgery. R. 238.
During

another

visit

in

July

2009,

plaintiff

again

reported

improvement with respect to his lower back pain, although he
complained of a new symptom of hip pain, discussed infra. R. 427.
On February 26, 2010, plaintiff saw Eduard Vaynberg, M.D., of
the New England Pain Management Consultants at Boston Medical Center
for an initial evaluation. R. 531-34. Plaintiff reported to Dr.
Vaynberg that his lower back pain radiated into his buttocks, and
that the pain was constant, worse in the morning, and exacerbated
by

walking

long

distances

or

prolonged

sitting.

R.

441.

Dr.

Vaynberg’s examination revealed that plaintiff was somewhat tender
to and somewhat limited in lumbar extension, although his strength
was 5/5 in all lower extremity major muscle groups. R. 442. Dr.
Vaynberg also reviewed plaintiff’s prior X-rays and noted that the
images showed an intact fusion in his back from prior surgery. R.
533. His treatment plan for plaintiff’s lower back was to start with
a caudal epidural steroid injection “to provide him with some

4

relief.” R. 442. Plaintiff received these steroid injections in his
back in February and March of 2010. R. 287-90.
Meanwhile, from January 2010 to March 2010, plaintiff underwent
physical therapy to increase mobility and decrease pain in his back.
R. 261-285. In March 2010, Amanda Shirah, plaintiff’s physical
therapist, opined that plaintiff’s major functionality had been
restored, but that his back pain increased with extended walking and
sitting, lifting more than 15 pounds, bending, and climbing more
than three flights of stairs. R. 263-65.
Plaintiff again received epidural steroid injections in his
spine in May and June 2010 at Boston Medical Center. R. 468, 473.
In May 26, 2010, a CT scan of his lumbar spine revealed interval
posterior instrumented fusion at L5-S1 with partial bony fusion,
mild posterior disc bulge, mild bilateral foraminal narrowing at L4L5, and mild degenerative changes of the sacroiliac joints. R. 476.
In September 2010, plaintiff saw Dr. Davidson for a follow-up.
R. 462-64. Plaintiff reported that the injections helped his pain,
but that he was experiencing numbness down the lateral aspect of his
right leg from his right knee to his toes. R. 462. His physical exam
showed normal mobility, no deformities, and negative straight leg
raising. R. 464.
In March 2011, plaintiff received another epidural steroid
injection in his lumbar spine from Dr. Vaynberg, who diagnosed
plaintiff with “failed back surgery syndrome.” R. 531.
5

2. Bilateral Hip Disorder
In July 2009, plaintiff reported improvement regarding his back
symptoms but complained of left hip pain. R. 235. A hip X-ray was
negative and plaintiff showed full range of motion in his hip. R.
235, 395. In November 2009, Jeffrey Zarin, M.D., an orthopedic
surgeon, evaluated plaintiff and reported somewhat flexed gait and
tenderness not associated with his previous spinal surgery. R. 266.
In March 2010, Dr. Zarin saw plaintiff for an orthopedic
consult regarding his anterior hip pain. R. 457. He was under no
apparent distress, and although he had a slightly flexed hip gait
and some pain with stretching, Dr. Zarin determined that hip surgery
was not necessary. Id.
A year later in March 2011, plaintiff was evaluated by Richard
Wilk, M.D., an orthopedic surgeon at the Lahey Clinic, who noted a
positive impingement sign in the hips bilaterally with intact motor
and sensory exam, and determined plaintiff was a candidate for left
hip surgery. R. 513-15. On May 4, 2011, plaintiff underwent left hip
arthroscopic surgery with femoroplasty, labral debridement, with
chondroplasty of the acetabulum and femoral head. R. 516-18. In a
follow-up exam later that month, Dr. Wilk noted that plaintiff had
no pain with log rolling or weight-bearing. R. 514. Dr. Wilk noted
a normal neurovascular exam in the left leg with no numbness. Id.
Meeting with Dr. Wilk again on June 10, 2011, plaintiff stated
that his left hip was doing well overall following the surgery, but
6

that his pain level was a 9 out of 10. R. 513. Based on the minimal
symptoms in his right hip, Dr. Wilk recommended holding off on a
right hip arthroscopic surgery. Id.
3. Right Leg Disorder
As a result of plaintiff’s 1990 gunshot wounds, a bullet
remains in his right leg. R. 39. In April 2008, plaintiff visited
Dr. Tannoury and reported right leg pain in addition to his back
pain and reported that the pain worsened upon sitting or standing.
R. 417.
At another visit with Dr. Tannoury in March 2009, plaintiff
complained that his back pain radiated to his right leg down to the
knee. R. 256. He also reported weakness in his right leg with
numbness and tingling upon ambulation. R. 434. Dr. Tannoury noted
that he walked with an antalgic gait. Id.
Additionally, during his initial visit with Dr. Vaynberg on
February 26, 2010, plaintiff reported numbness in his right leg and
pain that was “exacerbated by walking long distances and climbing
stairs and sitting for long periods of time.” R. 533.
B. State Agency Medical Consultant’s Evaluation
On June 10, 2010, John Jao, M.D., completed a physical residual
functional capacity (“RFC”) assessment on behalf of the SSA. R. 394401. Dr. Jao did not examine plaintiff but based his determination
on a review of plaintiff’s medical records. R. 19.

7

Dr. Jao noted that plaintiff’s hip X-ray was negative and
entirely normal, and that he showed full range of motion upon exam.
R. 396. He pointed out in the RFC evaluation that plaintiff’s
activities of daily living included cooking, walking, taking public
transportation, shopping, watching TV, and listening to music. Id.
Additionally, Dr. Jao wrote that plaintiff’s standing ability was
limited to two hours in an eight-hour workday. Id.
Dr. Jao opined that plaintiff was able to lift 20 pounds
occasionally and up to 10 pounds frequently,2 that he could sit for
six hours of an eight-hour workday, and that his ability to push and
pull was not limited. R. 395. He also found that plaintiff could
occasionally climb, balance, stoop, kneel, crouch, and crawl. R.
396. Dr. Jao determined that plaintiff had no manipulative or other
limitations. R. 397-401.
C. Treating Physicians’ Evaluations
Plaintiff obtained medical evaluation opinion evidence from Dr.
Melzer and Dr. Davidson. The ALJ granted little weight to Dr.
Melzer’s

medical

assessment

and

granted

some

weight

to

Dr.

Davidson’s medical assessment. R. 19.

2

The SSA defines “occasionally” as cumulatively “occurring
from very little up to one-third of an 8-hour workday” and
“frequently” as cumulatively “occurring one-third to two-thirds of
an 8-hour workday.” R. 394.
8

1. Dr. Melzer’s Medical Opinion
Ellen Melzer, M.D., an internist, completed a Massachusetts
Department of Transitional Assistance EAEDC (Emergency Assistance
to

Elderly,

Disabled,

and

Children)

Medical

Report

regarding

plaintiff’s condition in February 2010. R. 524-30. Dr. Melzer
examined and met with plaintiff for the first time the day she
completed the report. R. 526.
In the report, Dr. Melzer indicated that plaintiff suffered
from back and hip pain, but she did not mention plaintiff’s leg
pain. R. 524-30. She opined that plaintiff could not drive or use
a computer due to pain from sitting. R. 528. Additionally, Dr.
Melzer noted that plaintiff’s symptoms limit his ability to maintain
his personal hygiene, complete ordinary housework, and go foodshopping. Id. She opined that plaintiff’s impairments affect his
ability to work and are expected to continue for more than one year.
R. 529.
2. Dr. Davidson’s Medical Opinion
On

or

internist,

about

January

completed

an

26,

EAEDC

2012,

Peter

Medical

Davidson,

Report.

R.

M.D.,

537-38.

an
Dr.

Davidson noted that plaintiff’s motor strength and sensation were
normal, that his lumbar spine was tender, and that all other motor
systems were within normal limits. R. 539. He also noted that the
May 2010 CT scan of plaintiff’s lumbar spine showed degenerative
changes and hardware from prior surgery. Id. Dr. Davidson diagnosed
9

plaintiff with degenerative arthritis due to gunshot wounds and
noted that the condition was chronic, that improvement was not
expected, and that his treatment plan included epidural steroid
injections. R. 539-540.
In

March

2012,

Dr.

Davidson

submitted

an

RFC

assessment

indicating that plaintiff’s prognosis for his back and hip pain was
“good.” R. 544-47. He opined that plaintiff’s symptoms “seldom”
interfere with his attention and concentration, and that he was able
to sit for two hours and stand for forty-five minutes at a time. R.
545. In the context of an eight-hour workday, Dr. Davidson wrote
that plaintiff was able to sit for at least six hours and stand/walk
for less than two hours in an average workday, requiring two to
three unscheduled breaks lasting 10 minutes. R. 546. Dr. Davidson
stated that the patient did not have significant limitations in
doing repetitive reaching, handling or fingering, but then stated
that he could only use his hands to grasp, turn and twist objects
80% of an 8 hour work day; use his fingers to do fine manipulations
80% of the time; and use his arms for reaching (including overhead)
80% of the time.
C. Hearing Testimony
At plaintiff’s hearing, he testified that his 1990 gunshot
wounds caused injuries to his back, left arm, and right leg. R. 39.
A bullet remains in his right leg. Id.

10

Plaintiff

stated

that

he

has

trouble

walking

uphill

and

bending, can only sit for 15-20 minutes at one time, and has trouble
sleeping. R. 42-44. He also said that he is able to lift about 10
pounds, that he helps with small household tasks, and that he can
prepare basic meals. R. 42-43, 59. He averred that he takes Percocet
about three times per day and that his medication helps him with his
pain. R. 47, 58.
Plaintiff also testified that he watches television, reads,
listens to music, and plays keyboard. R. 43. While at home, he
becomes distracted on average two to three times per day. R. 57.
III. STANDARD
A. Statutory and Regulatory Framework
A claimant seeking benefits under the Social Security Act must
prove that he is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment . . . 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). To
satisfy this definition, the claimant must have a severe impairment
that renders him unable to do his past relevant work or any other
substantial gainful work that exists in the national economy. 20
C.F.R. § 416.905(a).
11

The Commissioner of the Social Security Administration has
developed a five-step sequential evaluation process to assess a
disability benefits claim. 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). The ALJ may terminate the evaluation at any step in the
process if it is determined that the claimant either is or is not
disabled. 20 C.F.R. § 404.1520(a)(4). The five steps are as follows:
(1) if the claimant is engaged in substantial gainful work activity,
the application is denied; (2) if the claimant 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 claimant’s RFC is such that he is able to perform past
relevant work, then the application is denied; (5) if the claimant,
given his RFC, education, work experience, and age, is unable to do
any other work, then the application is granted. Id.; Seavey v.
Barnhart, 276 F.3d 1, 5 (1st Cir. 2001).
The claimant’s RFC is “the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 404.1545(a)(1). His “impairment(s), and
any related symptoms, such as pain, may cause physical and mental
limitations that affect what [he] can do in a work setting.” Id. A
claimant can adjust to other work if he is able to perform any jobs

12

that “exist in significant numbers in the national economy.” Id.;
20 C.F.R. § 404.1560(c)(1).
The claimant bears the burden of proof on steps one through
four of the sequential evaluation process. Arocho v. Sec’y of Health
and Human Servs., 670 F.2d 374, 375 (1st Cir. 1982). At step five,
the SSA bears the burden of proof to present evidence of specific
jobs in the national economy that the applicant is able to perform.
Id.
B. Standard of Review
The

Court’s

authority

to

review

an

ALJ’s

disability

determination is limited, Nguyen v. Chater, 172 F.3d 31, 35 (1st
Cir. 1999), as it does not make de novo determinations of the ALJ’s
factual findings, Lizotte v. Sec’y of Health & Human Servs., 654
F.2d 127, 128 (1st Cir. 1981). If the ALJ’s findings are supported
by substantial evidence, then the findings are conclusive. MansoPizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir.
1996). However, the ALJ’s findings “are not conclusive when derived
by ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen, 172 F.3d at 35.
Substantial evidence will be satisfied and the decision upheld
“if a reasonable mind, reviewing the evidence in the record as a
whole, could accept [the ALJ’s findings] as adequate to support his
conclusion.” Ortiz v. Sec’y of Health and Human Servs., 995 F.2d
765, 769 (1st Cir. 1991) (quoting Rodriguez v. Sec’y of Health &
13

Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). It is the ALJ’s
responsibility to draw inferences from evidence in the record. Id.
The Court must uphold the ALJ’s determination “even if the record
arguably could justify a different conclusion, so long as [the
determination] is supported by substantial evidence.” Rodriguez
Pagan v. Sec’y of Health and Human Servs., 819 F.2d 1, 3 (1st Cir.
1987). The Court examines the record as a whole to determine the
quantity and quality of the medical evidence. Rohrberg v. Apfel, 26
F. Supp. 2d 303, 306 (D. Mass. 1998).
In addition to considering whether the ALJ’s determination was
supported by substantial evidence, the Court reviews whether the
proper legal standard was applied. The ALJ’s failure to “apply the
correct legal standards as promulgated by the regulations,” and
failure to “provide the reviewing court with the sufficient basis
to determine that the [ALJ] applied the correct legal standards” are
both grounds for reversal of the ALJ’s determination. Weiler v.
Shalala, 922 F. Supp. 689, 694 (D. Mass. 1996) (citing Wiggins v.
Schweiker, 679 F.2d. 1387, 1389 (11th Cir. 1982)).
IV. PROCEDURAL HISTORY
Plaintiff filed for SSDI and SSI benefits on February 9, 2010,
alleging disability beginning on January 6, 1990.3 R. 118, 125. His

3

Plaintiff does not contest the Commissioner’s dismissal of
his SSDI claims. Because plaintiff only challenges the ALJ’s denial
of SSI benefits, the relevant starting period for his alleged
disability is February 9, 2010, his SSI application date, not his
alleged onset date. See 20 C.F.R. § 416.202(g) (a claimant’s
14

claims were initially denied on June 18, 2010, and denied upon
reconsideration on January 6, 2011. R. 75, 81. On March 3, 2011,
plaintiff filed a request for a hearing, which was held on March 15,
2012, before ALJ William Ramsey. R. 28, 87. Plaintiff and his
attorney, Mr. Bruce Lipsey, appeared in person, and the vocational
expert, Mr. Joseph Goodman, appeared via telephone. R. 28. Following
the hearing, plaintiff submitted additional written evidence for
consideration,

which

satisfied

the

requirements

of

20

C.F.R.

405.331(c) and was admitted into the record prior to the ALJ’s
decision. R. 13.
On April 27, 2012, the ALJ issued a decision dismissing
plaintiff’s SSDI claim and denying his claim for SSI benefits. R.
10-25. Plaintiff contests only the ALJ’s SSI determination.
The remainder of the ALJ’s decision addressed plaintiff’s claim
for SSI benefits under the five-step sequential evaluation process.
R. 14. At step one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since January 29, 2010. R. 15. At step
two, the ALJ found that plaintiff’s impairments of degenerative disc
disease, bilateral hip disorder, and right leg disorder caused
significant limitations and classified these conditions as severe.
Id. At step three, the ALJ found that plaintiff’s impairments do not

eligibility for SSI benefits does not begin until the claimant has
filed an application).
15

meet or equal the severity of one of the listed impairments under
20 C.F.R. Part 404, Subpart P, Appendix 1. R. 16.
Prior to beginning step four, the ALJ made a determination of
plaintiff’s RFC. The ALJ found the following:
[Plaintiff] has the [RFC] to perform sedentary work . .
. except that [plaintiff] is able to lift 10 pounds
occasionally and less than 10 pounds frequently, stand or
walk at least 2 hours in an 8-hour day, sit for 6 hours
in an 8-hour day and requires the option to alternate
between sitting and standing. Further, [plaintiff] is
able to occasionally climb, balance, stoop, kneel,
crouch, or crawl. Finally, [plaintiff] is limited to
simple, routine and repetitive tasks.
Id.

The

ALJ

concluded

that

plaintiff

retained

“the

residual

functional capacity to perform work activities consistent with the
reduced range of sedentary work.” R. 19.
At step four, the ALJ adopted the testimony of the vocational
expert and found that plaintiff was unable to perform his past work.
Id. This finding was based on the vocational expert’s determination
that the physical demands of plaintiff’s past work exceeded his RFC.
Id.
At step five, the ALJ considered plaintiff’s age, education,
work

experience,

and

RFC,

was

well

as

the

testimony

of

the

vocational expert, and concluded that he was capable of adjusting
to other work that exists in significant numbers in the national
economy. R. 20. Therefore, the ALJ found that plaintiff has not been
disabled under the Act since the date he filed his application for
SSI benefits. R. 20, 155.

16

On February 6, 2013, the Appeals Council denied plaintiff’s
request for review as to both the SSDI and SSI claims. R. 1-4.
Plaintiff’s case is now ripe for review under 42 U.S.C. §§ 405(g),
1383(c)(3).
V. DISCUSSION
Plaintiff

contends

that

the

ALJ

committed

two

errors

in

determining that he is not disabled. First, he asserts that the ALJ
failed to accord proper weight to the medical opinions of his
treating physicians while evaluating his RFC. Second, plaintiff
argues that the ALJ’s faulty RFC determination caused him to rely
on the wrong hypothetical question posed to the vocational expert
regarding jobs in the economy that plaintiff is able to perform. The
Court

finds

that

the

ALJ’s

RFC

determination

and

subsequent

vocational conclusions were supported by substantial evidence.
A. Weight Assigned to Medical Opinion Evidence
A treating source is defined as a patient’s own physician,
psychologist, or other acceptable medical source who has provided
medical treatment in an ongoing way. 20 C.F.R. §§ 404.1502, 416.902.
A treatment provider’s opinion is entitled to controlling weight on
the issues of the nature and severity of the claimant’s impairment
if the opinion “is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the

other

substantial

evidence

in

[the]

case

record.”

Id.

§

404.1527(c)(2); see also Castro v. Barnhart, 198 F. Supp. 2d 47, 54
17

(D. Mass. 2002) (explaining that an ALJ may choose not to give a
treating

physician’s

opinion

controlling

weight

if

it

is

inconsistent with other substantial evidence in the record).
If the treating source’s opinion is not given controlling
weight, then the ALJ must determine the amount of weight to give the
opinion based on factors including the length of the treatment
relationship, the evidence supporting the opinion, whether the
opinion is consistent with the record as a whole, and whether the
source is a specialist. 20 C.F.R. § 404.1527(c)(1)-(6). The ALJ must
give “good reasons” for the weight assigned to medical opinions. Id.
“Failure to provide an adequate basis for the reviewing court to
determine

whether

the

administrative

decision

is

based

on

substantial evidence requires a remand to the ALJ for further
explanation.” Crosby v. Heckler, 638 F. Supp. 383, 385-86 (D. Mass.
1985).
By comparison, “[a] report given by a nontreating physician is
entitled to evidentiary weight but cannot be the sole factor of an
ALJ’s decision.” Rosario v. Apfel, 85 F. Supp. 2d 62, 68 (D. Mass.
2000). The First Circuit has refused to adopt a per se rule
regarding the proper weight afforded to the report of a nonexamining physician. Tremblay v. Sec’y of Health & Human Servs., 678
F.2d 11, 13 (1st Cir. 1982). The opinion of the non-examining
physician

may

circumstances,

be

given

“including

greater
the

weight

nature

18

of

depending

the

illness

on

the

and

the

information provided” by the non-examining physician. Rodriguez, 647
F.2d at 223. Another factor affecting the weight of the nonexamining physician’s opinion is whether the opinion is based on a
complete case record. Berrios Lopez v. Sec’y of Health & Human
Servs., 951 F.2d 427, 431 (1st Cir. 1991).
With these principles in mind, the ALJ committed no reversible
error in his determinations of how much weight to give the various
reports

from

plaintiff’s

treating

physicians.

First,

the

ALJ

correctly declined to grant Dr. Melzer’s opinion controlling weight.
Dr. Melzer opined that plaintiff’s back and hip pain affected his
ability to work and was expected to last for more than a year. R.
529. But Dr. Melzer completed her report on the first day she
treated plaintiff. R. 526. For this reason, her opinion does not
meet the requirements for that of a “treating” physician because,
at the time Dr. Melzer gave her opinion, she did not have “an
ongoing treatment relationship with [plaintiff].” 20 C.F.R. §§
404.1502, 416.902; see also Castro, 198 F. Supp. 2d at 54.
Additionally, Dr. Melzer’s opinion conflicted with evidence in
the medical record. For example, Dr. Melzer opined that plaintiff’s
conditions prevent him from using a computer. R. 528. However, by
plaintiff’s own testimony, he is able to play keyboard. R. 43. In
terms of functional capacity requirements, these activities are
nearly identical - both involve sitting, use of the hands and arms,
and prolonged concentration. The ALJ discounted Dr. Melzer’s opinion

19

in favor of plaintiff’s admissions. Therefore, the ALJ’s decision
to grant Dr. Melzer’s opinion little weight was supported by
substantial evidence.
Substantial evidence also supports the ALJ’s decision to assign
only “some weight” to the opinion of Dr. Davidson, who had treated
plaintiff approximately three to four times per year over the course
of two years at the time of his report. R. 544. The ALJ agreed with
Dr. Davidson’s opinion that plaintiff’s “ability to sit, walk
and[/]or stand and lift and carry” was limited to a “less than
sedentary

level.”

R.

19.

These

limitations

were

supported

by

plaintiff’s sustained pain management, his pain medication, and Dr.
Wilk’s finding of residual post-operative pain. Id. The ALJ also
agreed with Dr. Davidson’s opinion that plaintiff’s limitations do
not significantly limit his concentration as he is able to watch TV,
read, and help his daughter with homework. Id.
The ALJ disagreed, however, with Dr. Davidson’s opinions on two
counts. First, the ALJ disagreed that plaintiff was limited in the
use of his arms, hands, and fingers. Second, the ALJ disagreed that,
as a result of his physical limitations, plaintiff required two to
three unscheduled breaks during the workday and would miss, on
average, two days of work per month. R. 546-47. The Court finds that
substantial evidence supports the ALJ’s disagreement with Dr.
Davidson’s opinions.
To begin with, Dr. Davidson did not provide any explanation or

20

evidence, whether from his own records or other medical records, to
support these opinions. See Guyton v. Apfel, 20 F. Supp. 2d 156, 167
(D. Mass. 1998); 20 C.F.R. § 404.1527(c)(3) (explaining that more
weight will be given to treating opinions that are accompanied by
explanation and relevant evidence). Moreover, the ALJ found several
pieces of objective medical evidence in conflict with Dr. Davidson’s
opinions. For example, Dr. Davidson checked the box indicating that
plaintiff had no “significant limitations in doing repetitive
reaching, handling, or fingering,” R.547, and found that, overall,
plaintiff’s prognosis was “good,” R. 544. Dr. Wilk’s medical records
also suggested that plaintiff was suffering minimal symptoms on his
right hip, and minimal pain and significant improvement in his left
hip. R. 513. Similarly, plaintiff told Dr. Davidson in July 2010
that he was getting relief from his treatment and felt that “things
are improving” overall. R. 469. In May 2011, plaintiff also told Dr.
Wilk that he was “doing well” overall after his left hip surgery.
R. 513. Finally, the ALJ relied on plaintiff’s testimony that he was
able to go shopping, help his daughter with school work, and play
keyboard on a daily basis. R.19. Given these inconsistencies between
Dr. Davidson’s unsubstantiated opinions and other medical evidence
in the record, the ALJ’s decision to grant Dr. Davidson’s opinion
only “some weight” is supported by substantial evidence.
Plaintiff also disagrees with the ALJ’s decision to grant
“great weight” to Dr. Jao’s opinion. Like the ALJ, however, the

21

Court

finds

that

Dr.

Jao’s

opinion

was

“consistent

with

the

substantial evidence of record and the longitudinal treatment
record.” R. 19. After examining plaintiff’s medical records, Dr.
Jao, a non-examining consultant, believed that plaintiff could
occasionally lift twenty pounds, frequently lift ten pounds, and
stand for at least two hours and sit for about six hours in a
workday. R. 395. In support of Dr. Jao’s opinions, the ALJ cited
plaintiff’s negative left hip X-ray and the improvement of his hip
and back pain following his operations. R. 19. The ALJ also found
Dr. Jao’s opinions consistent with plaintiff’s ability to prepare
simple meals, read during the day, and take public transportation.
R. 19.
Plaintiff suggests that Dr. Jao’s opinions are somehow less
reliable than Dr. Davidson’s opinions because he underwent left hip
arthroscopic surgery in May 2011, less than a year after Dr. Jao
issued his report. R. 516-18. But there is no evidence in the record
indicating that plaintiff’s surgery substantially affected his RFC.
In fact, Dr. Wilk noted that plaintiff’s left hip was doing well
following the arthroscopy and that a right hip arthroscopy was not
necessary as of June 2011. R. 513. Further, even Dr. Davidson’s
report made no mention of how plaintiff’s RFC was affected by his
May 2011 surgery. See R. 544-47. As a result, the ALJ was justified
in assigning “great weight” to Dr. Jao’s opinion, even though it was
issued prior to plaintiff’s left hip arthroscopic surgery.

22

Finally, plaintiff argues that he produced substantial evidence
of his disability through his testimony, especially his statements
regarding the ongoing stream of medication, physical therapy, and
surgeries he has endured since suffering gunshot wounds to his back,
arm, and leg in 1990. Given the weight of his testimony, plaintiff
argues that the ALJ should have credited his statements “concerning
the intensity, persistence, and limiting effects of the symptoms.”
R. 18. The Court disagrees.
When a claimant alleges pain to an extent not supported by
objective medical evidence, “a full description of the individual’s
prior work record, daily activities and any additional statements
from the claimant, his or her treating physician or other third
party relative to the alleged pain must be considered.” Avery v.
Sec’y of Health & Human Servs., 797 F.2d 19, 23 (1st Cir. 1986). The
Court defers to the ALJ’s assessment of the credibility of the
claimant’s

testimony,

“especially

when

supported

by

specific

findings.” Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d
192, 195 (1st Cir. 1987).
Based on the longitudinal treatment record and the available
objective medical evidence, substantial evidence supports the ALJ
determination that plaintiff’s subjective allegations of the degree
of pain were not credible. R. 18. The ALJ noted that plaintiff’s
daily activities include reading, listening to music, playing the
keyboard, dusting, preparing simple meals and otherwise spending

23

time with his daughter and family. The ALJ also considered reports
from plaintiff, such as his June 2011 report of mild symptoms in his
right hip, improvement in his left hip following the arthroscopy,
and improvement of his back pain from epidural steroid injections.
Therefore, the ALJ’s decision to discount plaintiff’s subjective
reports of pain was supported by substantial evidence.
For these reasons, the Court finds that substantial evidence
supports the ALJ’s decisions to: (1) give Dr. Melzer’s opinions
little weight; (2) give Dr. Davidson’s opinions only some weight;
(3) give Dr. Jao’s opinions great weight; and (4) find plaintiff’s
complaints regarding the severity and extent of his pain not fully
credible.
B. Vocational Expert Testimony
To constitute substantial evidence, the vocational expert’s
opinion must be in response to a hypothetical that accurately
describes the claimant’s impairments. Arocho, 670 F.2d at 375.
However, the ALJ is not obligated to include alleged impairments
that have been deemed not credible. Rossi v. Shalala, No. 95-1045,
66 F.3d 306, 1995 WL 568492, at *4 (1st Cir. Sep. 25, 1995)
(unpublished table decision). Generally, the ALJ may rely on a
hypothetical that accurately reflects the record’s objective medical
findings. See, e.g., Perez v. Sec’y of Health & Human Servs., 958
F.2d 445, 447 (1st Cir. 1991).
Here,

the

ALJ

presented

the

24

vocational

expert

with

a

hypothetical person of plaintiff’s age, education, and work history,
who is able to lift ten pounds occasionally, less than ten pounds
frequently, stand and walk at least two hours in an eight-hour work
day, who can occasionally climb, balance, stoop kneel, crouch, or
crawl, and whose work is limited to the performance of simple,
routine,

and

repetitive

tasks.

R.

62.

The

vocational

expert

responded that this hypothetical individual could not perform
plaintiff’s past work, but that he could perform other jobs in the
local and national economy such as final assembler, press operator,
and polisher. R. 62-63.
As stated above, the ALJ’s hypothetical accurately described
plaintiff’s RFC to perform work activities within the range of the
reduced sedentary level and his decision not to include certain
restrictions was based on substantial evidence in the record.4 Thus,
the SSA satisfied its burden at step five that plaintiff is able to
perform suitable jobs that exist in significant numbers in the
national economy. Arocho, 670 F.2d at 375.
VI. ORDER
The

Court

ALLOWS

Defendant’s

Motion

to

Affirm

the

Commissioner’s Decision (Docket No. 23), and DENIES Plaintiff’s

4

Sedentary work “involves lifting no more than 10 pounds at
a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties.” 20
C.F.R. § 416.967(a).
25

Motion to Reverse and Remand the Decision of the SSA (Docket No.
18).

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

26