Tighe v. Astrue et al

Filing 17

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES Tighe's motion for partial reversal and remand, D. 11, and ALLOWS the Commissioner's motion to affirm, D. 12. (Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
WILLIAM F. TIGHE,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN COLVIN, Acting Commissioner,1 )
Social Security Administration,
)
)
Defendant.
)
__________________________________________)

Civil Action No. 13-11399-DJC

MEMORANDUM AND ORDER
CASPER, J.
I.

August 14, 2014

Introduction
Plaintiff William F. Tighe (“Tighe”) filed claims for Social Security Disability Insurance

(“SSDI”) and supplemental security income (“SSI”) with the Social Security Administration
(“SSA”) on October 28, 2010. R. 180-192.2 Pursuant to the procedures set forth in the Social
Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), Tighe brings this action for judicial review of the
final decision of the SSA Commissioner (“the Commissioner”), issued by an Administrative Law
Judge (“ALJ”) on June 25, 2012, denying his claim in part. R. 79-92. Before the Court are
Tighe’s motion for judgment on the pleadings to reverse in part the ALJ’s decision, D. 11, and
the Defendant’s motion to affirm, D.12. For the reasons explained below, the Court DENIES
Tighe’s motion for judgment on the pleadings and ALLOWS the Commissioner’s motion to
affirm.
1

The Court has substituted Carolyn Colvin, the Acting Commissioner of the SSA, as the
Defendant pursuant to Fed. R. Civ. P. 25(d).
2

Citations to “R.” refer to the administrative record, D. 10.
1

II.

Factual Background
Tighe was 44 years old when he ceased working on March 1, 2007. R. 180, 184. He had

previously worked as a technician who tested and calibrated heat imaging cameras, as a senior
assembler who tested chemistry makeup in fluids, as a missiles technician and as a tester on
DNA boards. R. 33-39. In between periods of technical work, he owned and operated a cab
business, found temporary technician work, worked as a janitor and, over a period of years,
bought and sold five houses. Id.
Tighe filed claims for SSDI and SSI on October 28, 2010, asserting that he was unable to
work as of March 1, 2007 due to visual impairment, diabetes, shoulder and back problems,
depression and anxiety. R. 180-192, 232.
III.

Procedural Background
Tighe filed applications for SSDI and SSI on October 28, 2010. R. 180. The SSA

initially denied Tighe’s claims on April 6, 2011, R. 99-104, and again upon reconsideration on
July 28, 2011. R. 108-113. Tighe requested a hearing before an ALJ, which was held on June 7,
2012. R. 19-66. In a written decision dated June 25, 2012, the ALJ found, in a partially
favorable decision to the claimant, that Tighe was disabled as of April 20, 2011. R. 75-92.
Therefore, the ALJ concluded that with regard to Tighe’s application for SSI that Tighe had been
disabled since April 20, 2011. R. 91-92. However, the ALJ determined that Tighe was not
entitled to a period of SSDI based on his application filed on October 28, 2010. Id.
Tighe requested a review of the ALJ’s decision by the Appeals Council and the request
was denied on January 25, 2013. R. 1-3. Accordingly, the ALJ’s decision is the final decision of
the Commissioner. R. 1.
IV.

Discussion

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A.

Legal Standards
1.

Entitlement to Disability Benefits and SSI

A claimant’s entitlement to SSDI and SSI turns on whether he has a “disability,” which is
defined in this context as an “inability to do any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or has lasted or can be expected to last for a continuous period of no less than twelve months.”
42 U.S.C. §§ 406(i), 423(d)(1)(A); 20 C.F.R. § 404.1505.

The inability must be severe,

rendering the claimant unable to do any of his previous work or any other substantial gainful
activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505404.1511.
The Commissioner must follow a five-step process to determine whether an individual
has a disability, and, thus, whether that individual’s application for benefits will be granted. 20
C.F.R. § 416.920. All five steps are applied to every applicant; the determination may be
concluded at any step along the process. Id. First, if the applicant is engaged in substantial
gainful work activity, then the application is denied. Id. Second, if the applicant does not have
or has not had within the relevant time period, a severe impairment or combination of
impairments, then the application is denied. Id. Third, if the impairment meets the condition for
one of the “listed” impairments in the Social Security regulations, then the application is granted.
Id.

Fourth, where the impairment does not meet the conditions of one of the “listed”

impairments, if the applicant’s “residual functional capacity” (“RFC”) is such that he can still
perform past relevant work, then the application is denied. Id. Fifth, and finally, if the applicant,
given his RFC, education, work experience and age is unable to do any other work, the
application is granted. Id.

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2.

Standard of Review

The Court may affirm, modify or reverse a decision of the Commissioner upon review of
the pleadings and record. 42 U.S.C. § 405(g). Such review, however, is “limited to determining
whether the ALJ used the proper legal standards and found facts upon the proper quantum of
evidence.” Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000) (citing Nguyen v.
Chater, 172 F.3d 31, 35 (1st Cir. 1999)). The ALJ’s findings of fact are conclusive when
supported by substantial evidence.

42 U.S.C. § 405(g).

Substantial evidence exists “if a

reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to
support [the Commissioner’s] conclusion.” Rodriguez v. Sec’y of Health & Human Servs., 647
F.2d 218, 222 (1st Cir. 1981). Thus, the reviewing Court must adhere to the ALJ’s findings
“even if the record arguably could justify a different conclusion, so long as it is supported by
substantial evidence.” Whitzel v. Astrue, 792 F. Supp. 2d 143, 148 (D. Mass. 2011) (citing
Rodriguez Pagan v. Sec’y of Health and Human Servs., 819 F.2d 1, 3 (1st Cir. 1987)).
However, the ALJ’s findings of fact “are not conclusive when derived by ignoring
evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen, 172 F.3d at 35
(citations omitted). Thus, if the ALJ made a legal or factual error, the Court may reverse or
remand such decision to consider new material evidence or to apply the correct legal standard.
Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (citation
omitted); see 42 U.S.C. 405(g).
B.

Before the ALJ

The Court limits its recitation of the facts to those facts relevant to its limited review of
the portions of the ALJ’s decision that Tighe asserts were made in error, namely, in regard to the
onset date of his shoulder and mental impairments.

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1.

Relevant Medical History
i.

Shoulder Impairments

On August 21, 2006, Tighe met with Dr. Lawrence P. Johnson for “evaluation of several
months of right shoulder pain.” R. 307. Dr. Johnson noted that Tighe reported falling the week
prior which “seemed to aggravate the pain.”

Id.

Dr. Johnson concluded that Tighe had

“probable” subacromial bursitis and suggested active shoulder exercises and over-the-counter
pain medication. Id. Tighe visited Dr. Johnson twice more in October 2006 and by October 23,
2006, Dr. Johnson noted that the shoulder pain had improved and “appear[ed] less likely to be
adhesive capsulitis.” R. 305.
In a subsequent visit with Dr. Johnson on March 16, 2007, Tighe reported falling again
two weeks prior to the visit. R. 304. X-rays showed no fracture, but Tighe reported pain and
stiffness in his scapula and shoulder. Id.
On January 18, 2008, Tighe met with Dr. Jack Chang and reported that he was
experiencing pain in his shoulders which had lasted six weeks. R. 635. After that visit, Chang
diagnosed Tighe with a frozen shoulder. Id.
On July 9, 2008, Tighe met with Dr. Eric Holstein, who found that Tighe’s shoulder had
no asymmetry, deformity, atrophy, instability, or tenderness, but had discomfort with elevation.
R. 313. Dr. Holstein noted that Tighe had adhesive capsulitis and shoulder bursitis, prescribed
Clinoril and referred Tighe to physical therapy. Id. After a follow-up visit on August 13, 2008,
Dr. Holstein noted that Tighe’s bilateral shoulder adhesive capsulitis had further improved. R.
312. On September 10, 2008, Dr. Holstein noted that Tighe’s bilateral adhesive capsulitis had
improved in his right shoulder but not the left, and that Tighe would continue with his
medication regime which would now include Skelaxin. R. 311. Dr. Holstein noted that an MRI

5

of Tighe’s left shoulder would be taken. Id. On September 17, 2008, Tighe reported to Dr.
Holstein that he continued to have more shoulder pain in his left shoulder than in his right
shoulder. R. 310. His MRI showed a rotator cuff tendinopathy. Id.
On October 15, 2008, Dr. Holstein noted that Tighe no longer had pain but still a
decreased range of motion. R. 309. On November 19, 2008, Dr. Holstein reported that Tighe’s
bilateral shoulder adhesive capsulitis had improved and that he would continue his home
exercise program but would no longer take Clinoril. R. 314. Dr. Holstein also noted that Tighe
had “been able to do all activities” and had “recently finished a porch.” Id. Tighe did not show
up for his follow-up appointment scheduled for January 14, 2009. Id.
The record shows no further treatment for or evaluation of Tighe’s shoulder impairments
until March 28, 2011, when Tighe visited Dr. Joel Epstein for a consult. R. 427. Dr. Epstein
reported that Tighe had mild diffuse pain when attempting abduction further than 30 degrees in
his right shoulder and 20 degrees in his left shoulder. R. 428. On April 20, 2011, Dr. Holstein
again examined Tighe and concluded that his shoulders had “severely limited active and passive
range of motion.” R. 475. Further, x-ray results showed an osteophyte formation on his left
humerus. R. 476. Dr. Holstein prescribed Tighe with Clinoril and referred him to return to
physical therapy. Id.
ii.

Mental Impairments

On April 25, 2008, Tighe received an initial psychiatric assessment at Seven Hills
Behavioral Health Center. R. 330-338. Dr. Ricardo Dancel, a psychiatrist, recorded Tighe’s
symptoms as depressed mood, sleep disturbance, low energy, poor concentration, agitation,
restlessness, mood swings, irritability, anxiety, compulsions and anhedonia, promoted by workrelated stress. R. 330. Dr. Dancel prescribed Tighe with two anti-depressants. R. 337.

6

Following the initial consultation on May 8, 2008, Tighe reported to the professionals at
Seven Hills Behavioral Center that he was more depressed. R. 384. On May 22, 2008, Tighe
reported that his depression had not improved and his anxiety was “to the roof.” R. 385. Tighe,
however, declined to join a depression group because he felt the other group members were
much “sicker.” R. 398. Tighe saw Licensed Independent Clinical Social Worker (“LICSW”),
Normand Gingras (“Gingras”) and Dr. Dancel consistently through the remainder of 2008, R.
376-383, 389, 393-398, and in November 2008 reported that he was “feeling better” and had
finished a “major project” at his mother’s house. R. 394. In December 2008, Gingras noted
Tighe’s “positive attitude” and that he would not “allow depression to overtake him.” Id.
Tighe continued to see Dr. Dancel in 2009. R. 365-375. Dr. Dancel’s records indicate
that Tighe was prescribed additional medication. R. 367. On December 15, 2009, Dr. Dancel
noted that Tighe’s mood was stable. R. 365. On February 9, 2010, however, Gingras recorded
that Tighe reported “feeling more depressed” as a result of losing his court case against his
former employer and that he was considering applying for disability benefits while looking for
work, but that he still wanted “to engage in some type of work to maintain his sanity.” R. 321.
In Gingras’s next assessment, dated April 13, 2010, he reported Tighe’s mental state as similar in
that he was still depressed and anxious, but he also wanted to find a job because he “want[ed] to
be a productive member of society.” Id. On June 8, 2010, Gingras noted that Tighe would
consider filing for disability if he did not get a job and was experiencing less anxiety than he did
during his last appointment. Id. He also noted that Tighe planned to spend his summer “fixing
up the house for his mother.” Id. On August 27, 2010, Gingras recorded that Tighe was still
bitter about being wrongfully fired from his last job and was “having difficulty developing other
goals for himself.” R. 322. His anxiety increased in September 2010 and he experienced

7

difficulty sleeping. Id. On November 19, 2010, Dr. Dancel noted that Tighe’s mood was stable.
R. 328.
On January 19, 2011, Tighe reported that he wanted to discontinue his therapy
appointments with Gingras because the therapy reminded him of certain events. R. 710. Dr.
Dancel also noted that Tighe enjoyed spending the Christmas holiday with his family, but still
had trouble with dwelling on the past. Id. On March 24, 2011, Dr. Dancel recorded Tighe’s
reports that he was sleeping better, eating better and had a “much better” mood. R. 724. In Dr.
Dancel’s notes dated April 21, 2011, he stated that Tighe was still dealing with anxiety. R. 725.
On May 19, 2011, Tighe appeared to become depressed again, as noted by Dr. Dancel.
R. 725. Tighe resumed therapy with Gingras on June 15, 2011. R. 673-74. Tighe reported to
Gingras that he was spending whole days in bed and was feeling depressed again on August 18,
2011. R. 675-676. On August 24, 2011, Tighe’s mental state was very unstable, and thus, he
went to a mental health facility, where a provider determined that he was hostile, irritable and
had obsessional thoughts. R. 531. Tighe’s depression and anxiety continued to increase the
following month, and he was admitted to a mental health facility on September 26, 2011 for an
evaluation. R. 486.
2.

ALJ Hearing

At the June 7, 2012 administrative hearing, the ALJ heard testimony from two witnesses,
Tighe and vocational expert (“VE”) James F. Scorzelli. R. 19-20. Tighe testified that he
completed high school, which offered vocational training, that he had no hobbies and stayed in
his home regularly. R. 29-30. When asked by the ALJ what he did while he was home, Tighe
responded that he surfed the web and occasionally checked his e-mail and phone calls. Id. He
described his mother as his main support and stated that he received food stamps. R. 30-31.

8

Tighe explained that his disability began on March 1, 2007, because after he lost his job
he “went into depression.” R. 31-32. Prior to his termination, he worked as a technician on heat
and imaging cameras at BAE Systems. R. 33, 31-32. He explained that his coworkers picked on
him, adding to his stress and depression. R. 32. Although his employers suggested he “start
over as a new employee,” Tighe testified that he felt that his depression was so severe that he
could not go back to work. Id. He tried to sue the company for wrongful firing, but was
unsuccessful.

Id.

Tighe did not apply for or receive unemployment benefits or workers

compensation at that time. R. 32. Upon further questioning, the ALJ found that Tighe still
received earnings from back holiday and sick pay after ending his job. R. 33. The ALJ also
confirmed all of Tighe’s past employment positions. R. 31-39.
When asked by the ALJ to elaborate why he believed he was incapable of working due to
his depression, he explained that his depression kept him at home for days and sometimes weeks
and thus, he could no longer work. R. 39-40. Tighe also cited anxiety and other physical
impairments as ailments that prevented him from working. R. 40. Tighe testified that he was
completely blind in his right eye and wore glasses, and thus, he could only drive in daylight. R.
40. He also testified that he had no depth perception, and his left eye had 20/20 vision while the
right had 20/200. R. 41.
Tighe then explained the problems related to his shoulder. R. 41. He testified that he had
shoulder surgery on both shoulders, rotator cuff problems, did not have a full range of motion
and had completed physical therapy. R. 41-42.
Tighe then testified that due to his depression he did not want to get out of bed, had no
energy and was very tired. R. 43. He explained that when he was able to get out of bed and
went into public, he was afraid of the crowds around him and felt anxiety. Id. In the past five

9

years, on average, he spent five out of seven days at home. Id. He also testified that he suffered
from anxiety attacks, which commenced when he felt like people were staring at him and
occurred every day lasting from one minute to an hour. R. 44. Tighe stated that to help combat
his feelings of anxiety, he took Xanax, which only helped a little. Id. He explained that a better
solution to relieving his anxiety would be to remove himself from crowds. Id. Tighe also stated
that he had been taking a generic version of Effexor, Abilify, and Doxepiin for his depression for
the length of five years with only minimal results. Id. Tighe then described his experience with
counseling. R. 45. He testified that seeing both a psychiatrist and therapist twice a month helped
with his depression. R. 45-46.
When the ALJ questioned him about what a typical week/day was like, Tighe responded
that on a bad day, he would stay home all day and mostly lie in bed. R. 46-47. On a good day,
which was usually twice a week, he would ride to the grocery store and visit his mother. Id.
While at home, he would have coffee, watch the news, channel surf, web surf and then get ready
to leave the house. R. 48. He also testified that he had difficulty sleeping and claimed that he
usually could not fall asleep before 2:00 a.m. R. 49. Tighe also stated that he did laundry and
took out the trash once a week and would prepare his meals using a microwave. R. 50. When
the ALJ asked about whether he had friends, Tighe replied that he had one who tried to get him
out of the house. R. 51. Tighe revealed that he smoked a pack of cigarettes a day and stopped
drinking alcohol after he was arrested for drinking and driving in 1997. R. 51-52.
Tighe then described his hospital stay in August 2011. R. 52. He testified that he was
hospitalized for a week due to depression and had his medications adjusted a few times. R. 52.
Following his stay, he participated in an aftercare program where he took “part in group
discussions, for six hours a day.” R. 53. The program was about seven to ten days long, which

10

was all his insurance would cover. Id. Although he explained that he found the program helpful,
his progress lasted only for a short while before he “went back to the same old.” Id. Tighe also
testified that he did not feel comfortable in a crowd of people. R. 54. He explained that when he
went to the store he believed that people were looking at him and talking about him. Id. He also
stated that his ability to concentrate was not good, but that he was able to read and write. Id.
The ALJ asked Tighe how much he was required to lift at his previous jobs, to which
Tighe answered one to three pounds. R. 56. The VE then described the different skill levels
associated with Tighe’s past jobs. R. 58-59. The ALJ asked the VE whether a person with age,
education and work experience similar to Tighe, who was able to perform light exertional work,
with Tighe’s physical limitations and with only occasional interaction with co-workers could
perform Tighe’s prior work. R. 59-60. The VE answered no, R. 60, but stated that Tighe could
work as a paper cutter, a binder, light housekeeper, optical goods polisher or touch-up screener.
R. 60-62. The ALJ then asked the VE whether an individual with the same impairments, but
who also had moderately severe limitations in the ability to accept instructions and to concentrate
could perform Tighe’s prior work. R. 62. The VE answered that a person who had “difficulty
concentrating, persisting and maintaining pace” would be unemployable. R. 62-63. In response
to a question by Tighe’s attorney, the VE responded that a person who needed a daily two-hour
nap would also be unemployable. Id.
3.

Findings of the ALJ

Following the five-step process, 20 C.F.R. § 416.920, at step one, the ALJ found that
Tighe was not engaged in substantial gainful activity and had not been since March 1, 2007. R.
81. At step two, the ALJ found that Tighe had several severe impairments, specifically obesity,
right eye visual acuity, bilateral shoulder adhesive capsulitis, depression and anxiety. R. 81-82.

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At step three, the ALJ determined that Tighe did not have an impairment or a combination of
impairments that met one of the listed impairments in the Social Security regulations. D. 82. At
step four, the ALJ found that, before and after April 20, 2011, Tighe had a RFC to perform light
work and that he is limited to occasional balancing, stooping, kneeling, crouching and crawling.
D. 84, 88. The ALJ added that Tighe must not perform any bilateral overhead reaching and that
Tighe’s work is limited to simple, routine and repetitive tasks with regular work breaks in an
eight-hour work day. Id. Tighe’s work is restricted to fields that require no interaction with the
general public and only limited interaction with coworkers. Id. Tighe is further limited to
occupations that do not require extensive reading or night driving. Id. On the basis of this
finding, the ALJ determined that Tighe has been unable to perform past relevant work since
March 1, 2007. R. 89. Tighe does not challenge any of those findings.
Finally, at step five, the ALJ found that, considering Tighe’s age, education, work
experience and RFC, there were no reasonably available jobs that Tighe could perform beginning
on April 20, 2011. R. 91. However, the ALJ found that considering Tighe’s age, education,
work experience and RFC, there were jobs that the he could have performed prior to April 20,
2011. R. 90. In reaching this conclusion, the ALJ considered the testimony of the VE that a
person with Tighe’s age, education, work experience and RFC would have been able to perform
unskilled light occupations such as a cutter, a gluer or a light housekeeper. R. 91. The ALJ also
considered Tighe’s testimony that his physical condition is progressive and that his mental
impairments had deteriorated over time. R. 88-89. The ALJ, however, found Tighe’s statements
regarding the intensity, persistence and limiting effects of his medical impairments not credible
prior to April 20, 2011, to the extent that they were not compatible with the ALJ’s RFC
assessment. R. 85-86. Further, the ALJ considered the general lack of medical evidence in the

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record between the claimants’s alleged onset date, March 1, 2007, until April 20, 2011. R. 87.
For example, the ALJ noted that although the record did reflect a history of bilateral shoulder
capsulitis, the record also showed long treatment gaps until April 20, 2011, which suggested that
Tighe had retained a certain degree of functioning until that time. R. 85-86.
With regard to Tighe’s mental impairments, the ALJ noted that the record confirmed a
history of depression and chronic anxiety, including evidence of sleeplessness, low energy and
mood swings.

R. 86.

However, the ALJ also noted evidence in the record that Tighe’s

depression and anxiety was improving in the spring of 2010. R. 86-87. For example, Tighe
reported “coming to terms” with his job loss. R. 87. In April 2010, Tighe was feeling more
optimistic and was thinking about getting a job, and in subsequent months, Tighe reported that
he was getting “better.” Id. However, in June 2011, Tighe returned to therapy and reported
increasing anxiety, anger and difficulty concentrating. Id. Moreover, in August 2011, Tighe was
hospitalized for ten days due to severe depression and anxiety. Id. Overall, the ALJ found that,
although the record reflected some psychological impairments prior to June 2011, Tighe’s
depression and anxiety worsened at that time. Id. at 88-89. Nevertheless, the ALJ noted that
Tighe’s shoulder impairments were disabling two months earlier in April 2011. Id. at 87.
Therefore, the ALJ determined that Tighe was not disabled prior to April 20, 2011, but became
disabled on that date and has remained disabled. Id. Tighe contests these findings as to the onset
date of disability.
D.

Tighe’s Challenges to the ALJ Findings

Tighe asserts that the ALJ erred in choosing a disability onset date of April 20, 2011, on
the grounds that “this finding contains numerous internal inconsistencies and is not compatible
with the objective evidence.” D. 11 at 4. Tighe seeks reversal of the ALJ’s decision only as to

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the onset date, or in the alternative, for the Court to remand for further proceedings on the ALJ’s
findings that were unfavorable to him. Id. at 8. For the reasons discussed below, the Court
denies this request.
1.

Shoulder Impairments

First, Tighe argues that the ALJ’s chosen onset date was inconsistent with the record
because the “only piece of objective evidence that corresponds to the established onset date of
April 20, 2011, is a visit to the orthopedic surgeon, Eric Holstein, MD.” D. 11 at 5-6.
“The onset date of disability is the first day an individual is disabled” pursuant to Social
Security law. Social Security Ruling (“SSR”) 83-20, 1983 WL 31249, at *1 (1983). “Factors
relevant to the determination of disability onset include the individual’s allegation, the work
history, and the medical evidence.” Id. While “[t]hese factors are often evaluated together to
arrive at the onset date . . . the individual’s allegation or the date of work stoppage is significant
in determining onset only if it is consistent with the severity of the condition(s) shown by the
medical evidence.” Id. “In disabilities of nontraumatic origin, the determination of onset
involves consideration of the applicant’s allegations, work history, if any, and the medical and
other evidence concerning impairment severity. The weight to be given any of the relevant
evidence depends on the individual case.” Id. at 2. However, “the established onset date must
be fixed based on the facts and can never be inconsistent with the medical evidence of record.”
Id. at 3.
Here, there is substantial evidence in the record that supports the ALJ’s chosen onset date
as to Tighe’s physical impairments. The ALJ reasonably concluded that while Tighe sought
treatment for shoulder issues in the past, the medical records and other evidence did not reflect a
disabling condition until Dr. Holstein considered his shoulder motion “severely limited” on April

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20, 2011. R. 475. Most notably, the records reflects that the last time in 2008 that Tighe sought
medical attention for his shoulder, Dr. Holstein noted that his shoulder condition had improved
and suggested using over-the-counter pain medication and to continue exercise. R. 314. Dr.
Holstein also noted that Tighe was able to do physical activities and had recently finishing
working on a porch. Id. The medical records reflect that Tighe skipped his next scheduling
appointment and did not seek any further treatment for his shoulder until March 28, 2011, when
he visited Dr. Epstein for a consultative examination. See R. 427; Rivera v. Comm’r of Soc.
Sec., 2000 WL 1022891, at *1 (1st Cir. 2000) (unpublished) (considering the fact that the
“record show[ed] that [claimant’s] symptoms were initially sporadic in the first year of alleged
disability, [and] she sought no treatment for the next three years” in affirming ALJ’s finding of
no impairment); Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 770 (1st Cir.
1991) (considering “lack of any evidence of sustained treatment” in affirming ALJ’s
determination that claimant was not disabled); Smolinsky v. U.S. Soc. Sec. Admin., Com’r, No.
08-CV-210JD, 2009 WL 1321907, at *10 (D.N.H. May 12, 2009) (concluding that “claimant’s
decision not to seek treatment for any length of time further undermines the alleged severity of
his mental health disability”). While Dr. Epstein, who saw Tighe during that March 2011 visit
only for a consult, noted in his report that Tighe had a “very limited range of motion of both
shoulders after trauma,” and “mild diffuse pain,” R. 428, it was not until April 20, 2011 that a
treating physician, Dr. Holstein, examined Tighe and concluded that his shoulders had “severely
limited active and passive range of motion.”

R. 475.

Further, x-ray results showed an

osteophyte formation on his left humerus. R. 476. Dr. Holstein prescribed Tighe with Clinoril
and referred him to physical therapy. Id. The Court concludes that there is substantial evidence

15

in the record to support the ALJ’s onset date of April 20, 2011 in regard to Tighe’s shoulder
impairments.
The Court further notes that the only purportedly contrary evidence to which Tighe
directs the Court is the ALJ’s RFC assessment – Tighe asserts that because the ALJ determined
that Tighe was restricted to no overhead reaching both before and after April 20, 2011, the
“ALJ’s assertion that the Plaintiff’s shoulder impairments became disabling on April 20, 2011, is
not reflected in her RFC assessments.” D. 11 at 6. While the ALJ concludes in the RFC findings
that Tighe was able to perform light work and could not perform bilateral overhead reaching
both before and after April 20, 2011, these findings do not render the chosen onset date
erroneous. Here, regardless of the RFC findings, the ALJ was required to assess whether Tighe’s
RFC, education, work experience and age rendered him unable to do any work. 20 C.F.R. §
416.920. The ALJ conducted this analysis and concluded that based on these factors and the
VE’s testimony, Tighe was able to perform unskilled light work prior to April 20, 2011 and no
work after April 20, 2011. D. 91. Further, there is also no indication that Tighe’s inability to
perform “overhead reaching with the upper extremities bilaterally” would mean he could not
perform “light work.”
For these reasons, the Court concludes that substantial evidence supports the ALJ’s onset
date of April 20, 2011 for Tighe’s shoulder impairments.
2.

Mental Impairments

The Court also rejects Tighe’s argument that the ALJ’s finding of April 20, 2011 as the
onset of his disability was not supported by substantial evidence.3 D. 11 at 7.

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The Court notes that while the ALJ’s actual chosen onset date for Tighe’s mental
impairments was June 2011, the ALJ gave Tighe the benefit of the earlier onset date of April 20,
2011 to coincide with the onset date of his physical impairments. R. 87.
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First, the lesser weight the ALJ placed upon the opinion of Gingras and Dr. Dancel was
not improper. Tighe’s treating psychotherapist, Gingras, wrote in a June 27, 2011 letter that
Tighe “became totally disabled prior to December 31, 2009.” R. 477. However, Gingras was
not an acceptable medical source under the application regulations and, accordingly, the ALJ
was not required to evaluate it under 20 C.F.R. §§ 404.1527(a)(2) and 416.927 or give it
controlling weight.
In a similar vein, the opinion of Dr. Dancel, Tighe’s treating physician, as to the onset
date of his mental impairment was not entitled to controlling weight. In an April 6, 2012
“Attending Physician’s Statement of Disability” form, Dr. Dancel indicated Tighe was “totally
disabled from gainful employment” as of June 2009. R. 493. However, “[c]ontrolling weight is
not accorded to a physician’s opinion that the claimant is disabled because that is a determination
reserved to the Commissioner.” Hooke v. Colvin, No. 13-11557-JLT, 2014 WL 2025161, at *6
(D. Mass. May 16, 2014); SSR 96-5p, 1996 WL 374183, at *1 (noting that “medical source
opinions on issues reserved to the Commissioner,” including whether a person is disabled under
the Social Security Act, are not given “controlling weight or special significance”).
Moreover, there was substantial evidence in the record to support the ALJ’s conclusion
that Gingras’ and Dr. Dancel’s opinions regarding the onset date were inconsistent with other
evidence in the record. Despite Gingras’ opinion in a June 27, 2011 letter about onset prior to
the end of December 2009, the various progress notes do not reflect significant impairment of
mental functioning. See, e.g., R. 321 (on February 9, 2010, noting depression, but engagement
about finding employment); R. 321 (on June 8, 2010, noting that feelings of anxiety had
significantly diminished and Tighe planned work on mother’s house and looking for a job in the
fall); R. 322 (on August 27, 2010, reporting that Tighe felt demoralized, but had been exercising

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and had lost forty pounds); R. 323, 710 (on various dates November 2010, reporting ongoing
aggravation with others, but then appearing calmer and was engaged in helping his mother who
recently had surgery and his brother who needs to visit several doctors). On this record, the ALJ
had substantial evidence to determine that the onset date declared by Gingras was not consistent
with the record.
The same is true as to Dr. Dancel’s opinion that the onset date was in June 2009. This
opinion was not consistent with the other evidence in the record. Although Tighe was reporting
feelings of anxiety in June 2009, he reported feeling better. R. 369. As of the end of 2009,
December 15, 2009, Dr. Dancel observed that Tighe’s mood was stable. R. 365. Into the next
year, Dr. Dancel reported at various times that Tighe was anxious, but not excessively so and
that his mood was stable. R. 324-28. Moreover, Dr. Dancel’s opinion about the onset date of his
“total disability” provided no information about Tighe’s specific functional limitations, R. 88,
493, which was another rational basis for the ALJ to consider in discounting his opinion. See 20
C.F.R. §§ 404.1527(c)(3), 416.927(c)(3).
Mason v. Apfel, 2 F. Supp. 2d 142, 149 (D. Mass. 1998), cited by Tighe, does not compel
another result. In that case, the ALJ had, “rather than determining whether [the claimant’s]
alleged date of onsets consistent with the evidence of the record,” concluded that it was “not
possible” to infer the onset date from the medical evidence of a doctor in the record. Id.
(emphasis in original). Given that circumstance, the Court ordered “[w]here, as SSR 83–20
directs, the onset date must be inferred from the medical and other evidence describing the
history and symptomatology of the disease process, the administrative law judge is required to
retain the assistance of a medical advisor.” Mason, 2 F. Supp. 2d at 150. Such is not the case
here where the ALJ did not conclude that the onset date could not be determined, but that the

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opinion of certain sources about that onset date were not consistent with the evidence and the
ALJ determined an onset date of April 20, 2011 after weighing and consideration of the record in
its entirety.
Moreover, the erroneous reference to “August 10, 2010” and “April 10, 2010” in the
ALJ’s decision, R. 88, 89, do not create any ambiguity about the onset date. The Court agrees
that these are appropriately characterized as “scrivener’s errors,” D. 13 at 18, particularly where,
throughout the decision, the ALJ otherwise consistently refers to “April 20, 2011” and “April
2011” as the onset date. See generally R. 79-92. That is, reviewing the decision as a whole,
there is no reasonable question that the ALJ determined that the onset date of disability was April
20, 2011. See, e.g., R. 81 (citing to “the established onset date of disability, April 20, 2011”).
V.

Conclusion
For these reasons, the Court DENIES Tighe’s motion for partial reversal and remand, D.

11, and ALLOWS the Commissioner’s motion to affirm, D. 12.
So ordered.
/s/ Denise J. Casper
United States District Judge

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