Blackette v. Colvin

Filing 28

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER"For the aforementioned reasons, Blackettes motion to remand, ECF No. 13, is DENIED, and the Agencys motion for an order affirming the decision of the Commissioner, ECF No. 25, is GRANTED.SO ORDERED."(Sonnenberg, Elizabeth)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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SUZANNA E. BLACKETTE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

CIVIL ACTION
NO. 1:13-cv-11546-WGY

YOUNG, D.J.

September 25, 2014
MEMORANDUM AND ORDER

I.

INTRODUCTION
In this action, Suzanna E. Blackette (“Blackette”) appeals

the decision of the Social Security Commissioner (the
“Commissioner” or the “Agency”) denying her application for
Social Security Disability and Supplemental Security Income
benefits.

This Court has jurisdiction pursuant to 42 U.S.C.

section 405(g).

Blackette challenges the determination of the

presiding Administrative Law Judge (the “hearing officer”) that
she was not disabled within the meaning of the relevant
statutory provisions.
A.

Procedural Posture

In early 2009, Blackette filed two applications for
benefits under the Social Security Act: the first, on February

1

19, 2009, for disability insurance benefits under Title II, and
the second, on March 10, 2009, for supplementary security income
under Title XVI.

Administrative R. (“Admin. R.”) 80, 1195.1

The

claims were initially denied in late 2009, see id. at 34, 1205,
and were then denied a second time in 2010 after a motion for
reconsideration, see id. at 17.

Blackette requested a hearing

on July 14, 2011, id. at 42, which was conducted on August 21,
2012, id. at 17.

The hearing officer concluded that Blackette

was not disabled in a written decision issued on September 10,
Id. at 17, 31.

2012.

Blackette administratively appealed her

case to the Agency’s Appeals Council, which denied her appeal in
May 2013.

Id. at 10.

Accordingly, on June 28, 2013, Blackette timely filed this
appeal in federal district court.

See Compl., ECF No. 1.

On

October 9, 2013, after the administrative record was produced,
she moved to remand this case to the Agency.

Pl.’s Mot. Remand

Decision Acting Comm’r Social Sec. Admin., ECF No. 13; Pl.’s Am.
Mem. Law Supp. Mot. Remand Decision Acting Comm’r Social Sec.
Admin. (“Pl.’s Mem.”), ECF No. 18.

The Agency, in turn, moved

for an order affirming the decision of the Commissioner on
February 24, 2014.

Def.’s Mot. Order Affirming Decision Comm’r,

ECF No. 25; Mem. Law Supp. Mot. Order Affirming Comm’r’s
1

Court.

The Administrative Record was provided under seal to this
See ECF No. 11.

2

Decision (“Def.’s Mem.”), ECF No. 26.
March 4, 2014.
B.

Blackette replied on

Reply Mem. (“Pl.’s Reply”), ECF No. 27.

Facts and Medical History

The relevant factual history is briefly described here.

In

order to preserve the privacy of the parties involved, facts not
necessary to this Court’s decision, though they were considered,
are not discussed in this opinion.
1.

Accident and Immediate Post-Accident
Hospitalization

On December 31, 2004, Blackette, then nineteen years old,
was involved in a high-speed car accident.

Admin. R. 572.

She

was brought to the University of Massachusetts (“UMass”) Medical
Center’s emergency room, where she was diagnosed with a skull
See id.

fracture and brain hemorrhaging.

She underwent

extensive treatment over the next six weeks, including surgery
to repair her skull fracture.

Id.

On February 15, 2005, she

was discharged from UMass and admitted to Spaulding
Rehabilitation Hospital.

Id. at 209.

On admission to

Spaulding, she was “aware and alert,” although she was “unable
to know the President, [and] could not name month or date.”

Id.

After beginning rehabilitation activities, however, “she made
consistent excellent gains with respect to agitation, cognition,
and orientation.”

Id. at 210.

She was discharged on March 3,

2005, and she returned home, where she was placed under 24-hour

3

supervision.

Id. at 212.

Upon discharge, her treating

physician, Dr. Heechin Chae, M.D., reported that a
“[n]europsychology evaluation shows significant frontal lobe
syndrome, mostly with slowness of processing speech and memory
difficulty with difficulty of arithmetic solution.

The patient

is an excellent candidate to continue to improve.”

Id.

Over the next several years, Blackette underwent a series
of medical treatments and evaluations.
2.

Dr. Neiman Evaluation (April & May 2005)

Early in her rehabilitation, Blackette was examined on
April 5, 2005, and again on May 3, 2005, by Dr. Beth Neiman,
Ph.D., a consulting neuropsychologist.

Id. at 310.

Dr. Neiman

reported that Blackette’s “language was generally fluent,” and
she “worked for two hours without asking for or accepting the
evaluator’s offer to take a break.”

Id. at 311.

She did note

that Blackette’s mother had reported that her daughter
“currently demonstrates memory difficulties.”

Id. at 310.

Dr.

Neiman then summarized the results of her testing as follows:
Evaluation results shows [Blackette] to be
demonstrating a profile of intact skills on tasks of
visual conceptual problem solving, visual abstract
reasoning, and executive functioning. She
demonstrates evidence of significant cognitive slowing
on tasks of mental control and sustained attention.
She demonstrates functional skills on tasks of
immediate auditory recall, delayed auditory memory,
auditory recognition, and visual motor integration,
with significantly impaired visual recall and delayed

4

visual memory. She demonstrates moderately to
severely impaired verbal fluency skills.
Results suggest that [Blackette] is at risk to
experience episodes of mental fatigue and cognitive
confusion when attempting complex cognitive tasks,
given the slowing of her information processing speed
and the intensity of attention necessary to achieve a
high level of success.
Id. at 313-14.

She then recommended “extensive educational

support[] to achieve academic success,” as well as speech,
language, and cognitive rehabilitation therapy.
3.

Id. at 314.

Dr. Swearer Evaluation (November 2007)

Blackette’s next evaluation was conducted on November 13,
2007, by Dr. Joan M. Swearer, Ph.D., a neuropsychologist.
at 770, 776.

Id.

Dr. Swearer summarized her test results by

concluding that:
[Blackette]’s general intellectual abilities were
estimated to be in the average range. Verbal and nonverbal abilities were at similar functional levels,
but with significant scatter among subtest scores
(e.g., high average vocabulary versus low average
immediate memory span). Her memory and ability to
learn new information were variable with average
recall and retention of prose material. Immediate
recall of a supraspan word list after 5 learning
trials was within normal limits, however, an
interference list had a significant negative impact on
immediate and delayed recall of the original list
(impaired). A recognition format did not appreciably
enhance her performance. Immediate and delayed recall
of visual material were impaired. Confrontation
naming was impaired for age and educational
background. Otherwise expressive and receptive
language functions were grossly intact on exam.
Visuospatial and visuoconstructive abilities were
variable (average to impaired). She had difficulties
on complex working memory/memory tracking tasks, and

5

sustained and divided attention. Fine manual
dexterity was slowed for both right and left hands.
She endorsed a significant degree of emotional and
psychological distress on a self-report inventory.
Id. at 774-75.

Dr. Swearer did, however, note that Blackette

“has made remarkable recovery” from her accident, though she has
“residual cognitive deficits in attention, memory, executive
functions, emotional processing, and feelings of depression.”
Id. at 775.

She recommended that Blackette commence a course of

cognitive rehabilitative therapy.
4.

Id.

Dr. Perlman Evaluation (July 2009)

On July 22, 2009, Blackette was evaluated by Dr. Jon
Perlman, Ed.D., who conducted a residual function evaluation to
determine the presence and extent of her potential disability.
Id. at 460.

He filled out a Social Security Administration Form

SSA-2506-BK, where he indicated that she met Social Security
Disability Listing 12.02 A & B, based on organic mental
disorders and affective disorders.

Id.

Dr. Perlman also

diagnosed her with a depressive disorder not otherwise
specified.

Id. at 463.

He also considered Blackette’s

functional limitations, noting that she had moderate restriction
of activities of daily living, but marked difficulties in
maintaining social functioning and maintaining concentration,
persistence, or pace.

Id. at 470.

In his notes section, Dr.

Perlman reported that: “[t]he neuropsychological evaluation on

6

[November 13, 2007, by Dr. Swearer] showed significant
improvement from previous evaluations.

However this most recent

neuropsychological evaluation showed continued cognitive
deficits in attention, memory, executive functions, emotional
processing and depression.”

Id. at 472.

It is unclear,

however, whether Dr. Perlman’s reference to “this most recent
neuropsychological evaluation” refers to the evaluation he
conducted, or to the 2007 evaluation conducted by Dr. Swearer.
5.

Dr. Kresser Evaluation (August 2009)

Dr. Perlman’s functional finding was reviewed by Dr. Paula
Kresser, Ph.D., who concluded that it was not supported by the
medical evidence.

See id. at 478-89.

Dr. Kresser first

summarized Blackette’s self-report on her own functioning,
stating that:
[Blackette] volunteers in a kindergarten, substitute
teaches, and visits with others. Claimant takes care
of her pets. She indicates that she used to read
faster, have a better memory, and have a faster
processing speed. She wakes up every few hours. She
prepares food and does household chores. She can
drive and goes out daily. She shops. She manages
money but sometimes needs reminders to finish the job
and assistance balancing her check book. She
socializes in person, online, and by phone. She can
only pay attention for 15 minutes. She does pretty
well with written instructions but needs extra time to
process and repetition for spoken instructions. She
fears noises and driving fast and anything that
reminds her of her accident.

7

Id. at 477.

Dr. Kresser did report that while Blackette

had worked two summers as a camp counselor, “[s]he was
unable to find another job when the summer ended.”

Id.

Dr. Kresser then indicated that it was “unclear” to her how
Dr. Perlman had concluded that Blackette had marked difficulties
in social functioning.

Id. at 478.

She noted that Blackette’s

“adult functioning report indicates that she socializes on line,
by phone, and in person.
group.

She goes to church and sign language

She gets along with others unless her core values are

challenged.”

Id.

Turning to the second “marked difficulty”

area identified by Dr. Perlman, she concluded that:
[The e]vidence does not indicate[] more than moderate
limitation with concentration, persistence, or pace at
least for non complex activities as represented by
scores of 74 in processing speed. Although
[Blackette] has low visual memory scores, it does not
represent deficits of more than a moderate nature due
to [Blackette’s] ability to compensate with average
auditory skills.
Id.

Dr. Kresser concluded that Blackette “retains the ability

to perform at least simple, repetitive tasks for a normal work
week and day and to interact appropriately with co-workers and
supervisors.”
6.

Id. at 479.

Dr. Perlman Evaluation (November 2009)

On November 10, 2009, in response to Dr. Kresser’s report,
Dr. Perlman reevaluated his original assessment.
488.

See id. at

He concluded, albeit without explanation, that Blackette’s

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difficulties in maintaining social functioning and in
maintaining concentration, persistence, or pace were only
moderate.

Id. at 498.

He also concluded that her performance

on four measures - (1) understanding and memory, (2) sustained
concentration and persistence, (3) social interaction, and (4)
adaption - was generally not significantly limited, though it
was “moderately limited” in several areas.2

Id. at 502-03.

He

concluded by noting that “[t]he most recent neuropsychological
evaluations showed some continued cognitive deficits in
attention, memory, executive functions, and emotional
processing,” but that Blackette was “able to perform simple
unskilled work on a sustained basis.”
7.

Id. at 504.

Dr. Eisenstock Evaluation (March 2010)

Next, on March 11, 2010, Dr. Jordan Eisenstock, a
neuropsychologist, evaluated Blackette.

Id. at 1071, 1075.

He

started with her functional history, and noted that:
[Blackette] . . . has difficulty at times with
comprehension and occasional difficulty with word
finding. She has no specific problems with activities
of daily living. She has taken and completed a
driving course and does drive an automobile, but tries
not to drive any long distances. She is working as a
substitute teacher for grades K and up. She would
prefer a more regular schedule but is limited by
2

Blackette’s ability to understand and remember detailed
instructions was moderately limited, as was her ability to carry
out detailed instructions, to maintain attention and
concentration for extended periods, to complete a normal workday
and workweek without interruption, and to get along with
coworkers or peers without distracting them. Admin. R. 502-03.
9

severe fatigue, which has also been present since her
accident.
...
With regards to mood, [Blackette] notes significant
problems with environmental issues surrounding her
situation. This includes difficulty getting a stable
job, having to live with her parents after college.
Id. at 1071-72.

Medically, Blackette was relatively healthy

neurologically, although she was depressed, for which she took
Zoloft.

See id. at 1072.

Dr. Eisenstock reviewed her recent

psychiatric history, and recommended increasing her dose of
Zoloft and Adderall, and that she continue with psychotherapy.
Id. at 1074.
8.

Dr. Davis Evaluation (June 2010)

On June 7, 2010, Dr. P. Davis, Psy.D., reviewed the
existing case material on Blackette, although it does not appear
that he independently examined her.

Id. at 646.

He determined,

based on her self-assessments, that “[s]he’s busy planning her
wedding & exercises, shops, socializes, can use a planner, cook,
clean, etc.”

Id.

He also stated she was “depressed and

somewhat slow,” although “[s]he seems to adequately compensate,
for the most part.”

Id.

He concluded by stating that he

affirmed Dr. Perlman’s November 2009 finding of no marked
disability.
9.

Id.

Dr. Schodlatz Evaluation (June 2011)

10

Next, on June 10, 2011, Blackette was evaluated by Dr.
Diane Schodlatz, Ed.D., a clinical neuropsychologist.
1027.

Id. at

Schodlatz began her evaluation by discussing Blackette’s

work and educational history, noting first that she graduated
from Gordon College in 2008 with a grade point average of 3.2.
Id. at 1028.

She then noted Blackette had been working as a

substitute teacher, and that she “did not inform the school that
she had a traumatic brain injury and no one, other than
students, has questioned her performance.

Her students have

commented on her slow rate of speech and reading.”

Id.

Dr. Schodlatz reported that, during the session itself,
Blackette “was fully cooperative and well motivated,” and “[s]he
worked steadily for the seven-and-one-half hour session, which
included a forty-five minute lunch break.”

Id. at 1029.

Dr.

Schodlatz concluded that Blackette had “demonstrated significant
improvements or gains in nearly all areas assessed in January
2006,” including, inter alia, her (1) verbal comprehension and
perceptual reasoning, (2) narrative memory, (3) confrontational
naming, (4) visuomotor processing speed, and (5) phonemic
fluency.

Id. at 1041.

“Her visual planning and organization on

a task requiring copying a complex geometric figure continued to
be mature, configurational, and well organized.”

Id.

Blackette also “performed well within normal limits on a
series of measures that were not administered in January 2006,”

11

including (1) having no difficulties with cognitive shifting or
response inhibition, (2) typical responses to hypothesis testing
and concept formation, (3) typical nonverbal creativity, and (4)
adequate basic academic skills.

Id.

Dr. Schodlatz did report

problems in terms of (1) visual memory, which “showed little
improvement,” (2) word finding and speed of mental processing on
tasks requiring rapid naming, (3) slowed mental processing
speed, as well as self-reported “significant day-to-day
difficulties with planning and organization,” (4) “striking”
difficulties with expressive organization and word retrieval,
and (5) reduced self-awareness.
10.

Id. at 1042.

Dr. McCahan Letter (August 2012)

On August 9, 2012, at the request of Blackette’s counsel,
Dr. John McCahan, Blackette’s physician, wrote that she has
“difficulty adapting to new situations, translating social
feedback such as body language, and has significant difficulty
with expressive language.”

Id. at 1193.

As a result, he

concluded that “the nature of her injury and her continued
cognitive problems make it impossible for [Blackette] to
maintain a job with a traditional 5-day workweek.”
11.

Id.

Ms. Read Letter (August 2012)

Patricia J. Read, M.A./C.A.G.S., Blackette’s vocational
rehabilitation counselor since 2011, reported on August 10,
2012, that Blackette “continues to need assistance to help her

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plan and organize her routine and environment, multitask as
required in typical employment situations, resist a tendency to
be easily distracted, pay greater attention to detail, initiate
and complete household and financial management tasks, and
manage her time.”

Id. at 180.

She also provided an update on

Blackette’s employment history, stating:
In the 2011 academic year [Blackette] attempted to
work as a substitute teacher but encountered
difficulties that subsequently resulted in her being
placed on the “do not call” list for all of the
schools in the district. In April of this year she
met with the HR manager when she was given a list of
reasons for the decision that included difficulties
with classroom management, concerns about her high
anxiety level and problems interacting with students.
Id.
II.

LEGAL STANDARDS
A.

Standard of Review

Under the Social Security Act, this Court is empowered “to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security.”

42 U.S.C. § 405(g).

The

Court’s role, though, is a narrow one, and its “review is
limited to determining whether the [hearing officer] deployed
the proper legal standards and found facts upon the proper
quantum of evidence.”
Cir. 1999).

Nguyen v. Chater, 172 F.3d 31, 35 (1st

Legal questions are reviewed de novo.

Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).

13

Seavey v.

Findings of fact,

however, “are conclusive when supported by substantial evidence,
but are not conclusive when derived by ignoring evidence,
misapplying the law, or judging matters entrusted to experts.”
Nguyen, 172 F.3d at 35 (internal citations omitted).
Substantial evidence, in turn, must be “more than a mere
scintilla.

It means such relevant evidence as a reasonable mind

must accept as adequate to support a conclusion.”

Olen v.

Colvin, No. 12-12424-JLT, 2014 WL 1912357, at *4 (D. Mass. May
7, 2014) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)) (internal quotation marks omitted).

The Commissioner,

not the Court, is tasked with “determin[ing] issues of
credibility and . . . draw[ing] inferences from the record
evidence.”

Irlanda Ortiz v. Sec’y of Health & Human Servs., 955

F.2d 765, 769 (1st Cir. 1991).

Accordingly, the “resolution of

conflicts in the evidence” is done by the agency, not the
judiciary.

Id.

As such, the court must affirm the agency’s

decision “even if the record arguably could justify a different
conclusion, so long as it is supported by substantial evidence.”
Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3
(1st Cir. 1987).
B.

Disability Standard

An individual is disabled under the Social Security Act if
he or she is unable “to engage in any substantial gainful
activity by reason of any medically determined physical or

14

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.”
see also 20 C.F.R. § 404.1505(a).

42 U.S.C. § 423(d)(1)(A);
The impairment must be “of

such severity that he [or she] is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work which exists in the national economy.”

42 U.S.C. §

423(d)(2)(A).
The agency sets out a five-step process to determine
whether an applicant is disabled.
404.1520(a)(4).

See 20 C.F.R. §

The First Circuit has summarized these steps as

follows:
1) [I]f the applicant is engaged in substantial
gainful work activity, the application is denied; 2)
if the applicant does not have, or has not had within
the relevant time period, a severe impairment or
combination of impairments, the application is denied;
3) if the impairment meets the conditions for one of
the “listed” impairments in the Social Security
regulations, then the application is granted; 4) if
the applicant's “residual functional capacity” is such
that he or she can still perform past relevant work,
then the application is denied; 5) if the applicant,
given his or her residual functional capacity,
education, work experience, and age, is unable to do
any other work, the application is granted.
Seavey, 276 F.3d at 5 (citing 20 C.F.R. § 416.920).

The agency

need not proceed through all five steps if the case may be
decided according to an earlier step in the process.

15

Id.

The

applicant bears the burden of proof on the first four steps, and
the agency bears the burden on the last step.

McKay v. Colvin,

No. 13-10521-PBS, 2014 WL 2957723, at *4 (D. Mass. June 30,
2014) (Saris, C.J.).
III. THE HEARING OFFICER’S DECISION
In her written findings of fact and conclusions of law, the
hearing officer reviewed and then applied the five-step
framework discussed above.

First, the officer concluded that

Blackette has not engaged in substantial gainful activity since
the alleged onset date.3

Admin. R. 19.

Turning to the second

step, the medical severity of her impairments, 20 C.F.R. §
404.1520(a)(4)(ii); id. § 404.1520(c), the hearing officer
determined that Blackette had four severe impairments: posttraumatic brain injury, organic mental disorder, mood disorder,
and asthma.

Admin. R. 19.

This conclusion was based on

impairments for which, according to the record medical evidence,
Blackette had been diagnosed and treated.

Id. at 20.

Next, the hearing officer turned to the third factor,
whether Blackette’s impairments were sufficiently severe to meet
or medically equal the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1.

Id.

She concluded they were not, based

3

The hearing officer did acknowledge that Blackette has
worked as a substitute teacher and camp counselor after her
injury, but concluded that “the claimant’s work activity did not
reach substantial gainful activity levels.” Admin. R. 19.
16

on “the record as a whole, as well as that no treating physician
has proffered findings that would meet or medically equal the
severity required to meet any and all relevant listed
impairments both singly and in combination.”

Id.

Specifically,

she determined that the governing regulation required her to
assess Blackette’s functional limitations using the criteria in
“paragraph B” of the mental impairment listings, which required
that these limitations “must result in at least two of the
following: marked restriction of activities of daily living;
marked difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence, or pace;
or repeated episodes of decomposition, each of extended
duration.”

Id.

The hearing officer considered each category in turn.
First, she found that Blackette had a “mild restriction” in
activities of daily living, as determined by, inter alia, her
social activities, ability to drive, ability to leave the house,
and ability to use a computer.

Id.

The officer did note that

Blackette had reported that “completing tasks like doing email
or cooking takes her longer to do.”

Id.

Next, the officer

determined that Blackette had “mild to moderate difficulties” in
social functioning, based mainly on Blackette’s subjective
testimony and on the fact that she spends time with individuals
in person, online, and on the phone, is married, travels, and

17

participates in certain social groups.

Id. at 21.

Third, the

hearing officer classified Blackette as having “moderate
difficulties” with regard to concentration, persistence, or
pace.

Id.

This finding was based on evidence that Blackette

has a limited attention span and more limited memory, but that
she can “pay attention longer in the morning or if there are no
distractions” and that “she finishes what she starts.”

Id.

Fourth, the hearing officer concluded that there was no evidence
of decompensation.

Id.

The hearing officer then turned to the fourth and fifth
steps, where she assessed Blackette’s residual functional
capacity, and concluded that she had the capacity “to perform
light work,” though she would “be limited to simple routine
tasks, only occasional decision making, occasional changes in
the work setting, and occasional interactions with the public.”
Id. at 22.

Here, the hearing officer began by reviewing

Blackette’s entire medical record in considerable detail.
id. at 22-26.

See

She also considered the “narrative provided by

[Blackette]’s mother” and Blackette’s testimony before the
hearing officer on August 21, 2012.

Id. at 26.

The hearing

officer then made the following findings:
After careful consideration of the evidence, I find
that the claimant’s medically determinable impairments
could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting

18

effects of those symptoms are not credible to the
extent that they are inconsistent with the above
residual functional capacity assessment.
Id. at 27.

The hearing officer concluded that Blackette’s

“activities of daily living support a finding of a much higher
residual functional capacity than the claimant alleges,” id.,
pointing to evidence that she could finish her college degree
with assistance, travel, drive herself, and look for jobs, id.
at 27-28.

She also noted that the medical evidence has shown

“constant improvement and somewhat conservative treatment,” and
that “a number of neuropsychological evaluations found in the
record also support a higher degree of functioning than the
claimant alleges.”

Id. at 28.

The officer concluded by finding

Blackette “not fully credible,” with the qualification that
“[t]his is not to say that the claimant does not have
limitations in performing tasks,” but that “they are not so
limiting that the claimant could not perform work activity at
the level set forth above.”

Id.

In support of this finding, she summarized the medical
evaluations she considered.

She said that she gave great weight

to Dr. Perlman’s November 2009 opinion, as it is “consistent
with the record as a whole.”

Id.

She also stated that Dr.

Perlman’s earlier record was “given little weight,” because it
was inconsistent with both the “vast majority of the medical
evidence” and Blackette’s “activities of daily living.”

19

Id.

The officer also afforded great weight to Dr. Kresser’s opinion,
mainly on the basis that it is “consistent with the claimant’s
neuropsychological scores and her activities of daily living.”
Id. at 29.

The hearing officer also gave “some weight” to Dr.

Davis’s opinion, mainly because the opinion was “consistent with
the record as a whole.”

Id. at 29.

weight to two additional opinions.

The officer gave little
First, she discounted

Blackette’s mental health counselor, James Valeri, because his
opinion was not consistent with her neuropsychological exams,
conservative treatment for her depression, and her lack of
regular psychotherapy treatment.

Id.

Second, she discounted

the opinion of Dr. McCahan, Blackette’s primary care physician,
that Blackette could not maintain a five-day workweek job.

She

based this on two reasons: first, because Dr. McCahan was a
pediatrician without expertise in cognitive impairments, and
second, because his opinion did not accord with Blackette’s
neuropsychological testing scores, activities of daily living,
and her reports of her own abilities.

Id.

Finally, the hearing officer concluded that “the claimant
is capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.”
30.

Id. at

Here, she evaluated Blackette’s skills in accordance with

the Medical-Vocational Guidelines; she also relied heavily on
the findings of a vocational expert who considered that there

20

were light exertion and unskilled jobs that she could perform,
such as a production assembler, photo copy machine operator, or
cafeteria attendant.

Id.

Accordingly, she considered that a

finding of “not disabled” was proper.
IV.

Id.

ANALYSIS
Blackette challenges three parts of the hearing officer’s

ruling: (1) her residual function capacity analysis, (2) her
application (or lack thereof) of Social Security Regulation 8320, and (3) her findings that Blackette’s testimony was not
fully credible.
A.

See Pl.’s Mem. 10-20.

Residual Function Capacity Analysis

Blackette focuses the bulk of her argument on the hearing
officer’s residual function capacity analysis.

While

Blackette’s briefs are not entirely clear, her core argument
appears to be as follows: the hearing officer’s residual
function capacity (“RFC”) determination was based on the RFC
evaluation of an expert, Dr. Kresser, which, in turn, was based
on out-of-date and slanted data.

It was thus improper for the

hearing officer to rely on that report, and accordingly, the
officer’s RFC determination was itself invalid and must be
vacated and remanded.

See Pl.’s Mem. 11-12.

Put differently,

this Court must determine whether the raw material upon which an
expert based her report was flawed, and if so, whether the

21

hearing officer’s decision, itself based on that report, was
thus also fatally flawed.
1.

Residual Function Capacity Determination
Framework

As part of the process of evaluating whether the claimant
is disabled, a hearing officer is responsible for making a
residual function capacity determination.
404.1545(a)(1).

20 C.F.R. §

“In making this determination, the [hearing

officer] should consider a claimant’s mental health history and
the opinions of her doctors.”

Connolly v. Astrue, No. 11-10798-

RGS, 2011 WL 6888645, at *7 (D. Mass. Dec. 30, 2011) (Stearns,
J.).

Moreover, in developing an evidentiary record necessary to

support a residual function capacity determination, “the general
rule is that an expert is needed to assess the extent of
functional loss.” Roberts v. Barnhart, 67 F. App’x 621, 622-23
(1st Cir. 2003) (citing Manso-Pizarro v. Sec’y of Health & Human
Servs., 76 F.3d 15, 17 (1st Cir. 1996)); see also Rivera-Torres
v. Sec’y of Health and Human Servs., 837 F.2d 4, 7 (1st Cir.
1988) (holding that the record must generally include “an
[expert’s] explanation of claimant’s functional capacity,” as
the agency is “not competent to interpret and apply raw medical
data”).

The court must uphold these capacity determinations by

the agency so long as they are supported by substantial

22

evidence.4

See McDougal v. Astrue, No. 09-40035-FDS, 2010 WL

1379901, at *10 (D. Mass. Mar. 31, 2010) (Saylor, J.).
2.

Dr. Kresser Report Timeliness and Consistency

Blackette’s first objection is that Dr. Kresser’s report,
which was completed in August 2009, was sufficiently untimely
that it should not have been relied upon by the hearing officer,
because it did not address medical evidence gathered between
December 2008 and when the hearing officer issued her decision
in 2012.

See Pl.’s Mem. 11-12.

As a matter of First Circuit case law, “[i]t can indeed be
reversible error for an administrative law judge to rely on an
RFC opinion of a non-examining consultant when the consultant
has not analyzed the full medical record.”

Strout v. Astrue,

No. 08-181-B-W, 2009 WL 214576, at *8 (D. Me. Jan. 28, 2009)
(citing Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994)).
is not a per se rule, though.
take a more nuanced tack.

This

Instead, a reviewing court must

If “there is an indication in more

recent records that there has been a significant change in the
claimant’s condition,” older medical reports now inconsistent
with that evidence may not be used to support an RFC
determination.

Abubakar v. Astrue, No. 1:11-cv-10456-DJC, 2012

4

To clarify the admittedly confusing terminology – medical
sources will produce a residual function capacity evaluation,
which is then considered by the hearing officer in her residual
function capacity determination (or assessment).
23

WL 957623, at *12 (D. Mass. Mar. 21, 2012) (Casper, J.) (citing
Soto-Cedeño v. Astrue, 380 F. App’x 1, 2 (1st Cir. 2010)). If,
however, the older evidence “remains accurate,” it may be relied
upon.

Id.
This timeliness standard raises two subsidiary questions.

First, how consistent must the older report be with newer
information?

The First Circuit has not spoken directly to this

point, but district courts within the circuit do not require a
particularly high level of consistency if (1) there are not
direct contradictions between the reports, such that the newer
evidence is essentially cumulative of the older evidence, or (2)
the newer reports show some measure of improvement in the
claimant’s condition.

See, e.g., id. (stating that older

reports can be relied upon unless there is a “significant
change”); Ferland v. Astrue, No. 11-cv-123-SM, 2011 WL 5199989,
at *4 (D.N.H. Oct. 31, 2011) (“[A]n ALJ may rely on such an [RFC
assessment] opinion where the medical evidence postdating the
reviewer’s assessment does not establish any greater
limitations, or where the medical reports of claimant’s treating
providers are arguably consistent with, or at least not ‘clearly
inconsistent’ with, the reviewer’s assessment.” (internal
citation omitted)); Strout, 2009 WL 214576 at *8 (stating that
the court could rely on the opinions of doctors who had not seen
new medical evidence when those new records “either were

24

cumulative of the records that [experts] did see or, on the
whole, reflected improvements in the plaintiff’s condition and
functionality”); Torres v. Comm’r of Social Sec., No. 04-2309
(DRD/GAG), 2005 WL 2148321, at *1 (D.P.R. Sept. 6, 2005)
(suggesting that RFC assessments of nontreating physicians based
on older evidence are acceptable unless they were in “stark
disaccord” with other medical evidence); Freese v. Barnhart, No.
03-286-P-S, 2004 WL 1920702, at *4 (D. Me. Aug. 26, 2004)
(stating that an RFC assessment can be substantial evidence,
even in the “absence of consideration of a complete medical
record,” if missing records “are merely cumulative”).
The second question is whether the court or the agency must
make the consistency determination between old and new reports.
Here again, the First Circuit has not spoken directly, nor have
district courts within the circuit settled on a clear position,
though most have implicitly held that the court may so
determine.

Compare Abubakar, 2012 WL 957623, at *12-13 (court

determines consistency), Strout, 2009 WL 214576, at *8 (court
determines consistency), and Freese, 2004 WL 1920702, at *4
(court determines consistency), with Ferland, 2011 WL 5199989,
at *4 (agency determines consistency).

Accordingly, this Court

determines that the hearing officer need not make an explicit
consistency determination, though, of course, the agency would
be advised to do so.

25

Turning back to the facts of this case, Blackette argues
that Dr. Kresser’s RFC report fails to consider several key
pieces of information which manifested after the report was
issued, including: (1) Blackette’s involuntary removal from
substitute teaching, (2) Blackette’s difficulty in managing
household affairs, (3) Blackette’s driving difficulties, (4) Dr.
Schodlatz’s 2011 neuropsychological record, and (5) evidence
about Blackette’s college completion.

Pl.’s Mem. 11-12.

As an initial matter, it first appears that the hearing
officer did consider whether Dr. Kresser’s report was consistent
with other evidence in the record, and she concluded that it
was.

See Admin. R. 29 (“As Dr. Kresser’s opinion is consistent

with the claimant’s neuropsychological scores and her activities
of daily living, I afford it great weight.”).

The question for

this Court, then, is whether that conclusion is supportable,
i.e., whether the post-dated medical evidence is consistent with
or demonstrates an improvement over the earlier reports.
Turning first to Dr. Schodlatz’s 2011 report, this
evaluation is more positive than the 2006 and 2007 reports which
provided the raw material for Dr. Kresser’s evaluation.

Dr.

Schodlatz concluded that Blackette “demonstrated significant
improvements or gains in nearly all areas assessed in January
2006.”

Id. at 1041.

Moreover, while Dr. Schodlatz’s report

indicates that Blackette continues to show weaknesses on certain

26

neuropsychological measures, these were comparable to those
identified in earlier reports.

See, e.g., id. at 1042.

Turning

next to the functional activities,5 several are relatively
straightforward: with respect to driving ability, Dr. Kresser
mentioned that Blackette “can drive,” id. at 477, a finding
confirmed by and consistent with a 2012 driving report,
highlighted in Blackette’s brief, Pl.’s Mem. 11, which stated
that her “basic driving knowledge [and] skill are slightly above
average,” Admin. R. 183.

Turning next to household skills, the

2012 report from Ms. Read, Blackette’s vocational rehabilitation
counselor, indicated that she needed assistance with household
skills, id. at 180, a finding not “clearly inconsistent” with
Dr. Kresser’s report that Blackette “prepares food and does
household chores,” id. at 477.
The more complicated issue is the fact that Blackette
stopped substitute teaching after Dr. Kresser’s report.

The

Agency argues that “it is not clear from the record that the
Plaintiff’s reported inability to maintain this job was
associated with her cognitive impairments.”

Def.’s Mem. 12.

Such an argument, even if true, is beside the point -- a medical

5

This Court notes that it is unclear whether changes in
reports of daily living activities, as opposed to medical
reports indicating a change in medical condition, would trigger
the application of the “cumulative report” rule discussed in
this section. This Court assumes without deciding that it
would.
27

expert, not the hearing officer, is charged with determining the
functional limitations caused by such cognitive impairments.
Roberts, 67 F. App’x at 622-23.

Dr. Kresser, though, based her

determination that Blackette did not suffer “marked difficulties
in social functioning” on the fact that “she socializes on line,
by phone, and in person.
group.

She goes to church and sign language

She gets along with others unless her core values are

challenged.

She is less out going than she used to be and

participates less in large groups.”

Admin. R. 478.

Kresser

does not appear to have based this determination on anything
related to Blackette’s ability to teach.

Accordingly, given the

relatively deferential standard of “arguably consistent” or “not
clearly inconsistent,” this Court concludes that that such
changed circumstances are not so stark as to warrant reversal.
This conclusion is especially true in light of the fact
that the medical expert opinions all essentially accord with one
another.

The First Circuit is clear that “[i]t is common ground

that an ALJ is not free to substitute his own judgment for
uncontroverted medical opinion.”

Rose, 34 F.3d at 18; see also

Dube v. Barnhart, No. 06-20-P-C, 2006 WL 2822370, at *2 (D. Me.
Sept. 29, 2006)(“[T]he plaintiff asks this court to invalidate
the commissioner’s conclusion based on the plaintiff’s own lay
evaluation of [a doctor’s] findings, in the face of contrary
findings in [a different expert]’s report.

28

Under these

circumstances, this court cannot do what the administrative law
judge could not do.

The administrative law judge was entitled

to rely on [the second expert]’s findings, particularly in the
absence of any contrary medical evidence.”).

Here, there are

simply no other medical opinions in evidence that contradict Dr.
Kresser’s report, which counsels in favor of determining that
the report is current.
3.

Report Adequacy

Next, Blackette argues that even if Dr. Kresser’s report is
not untimely, it is substantively inadequate to support the
hearing officer’s residual functional capacity assessment.
Pls.’ Mem. 12-16.

See

Blackette makes two specific objections: (1)

Dr. Kresser lacked current information on Blackette’s activities
when writing her report, id. at 13, and (2) Dr. Kresser did not
properly summarize earlier neuropsychological examinations
conducted by other specialists, id. at 13-14.
The standard for expert report adequacy is quite
permissive.

The First Circuit has clarified that nonexamining

medical expert reports, like the ones used in this case, can,
standing alone, serve as substantial evidence in support of a
residual functional capacity assessment.

See Berrios Lopez v.

Sec’y of Health & Human Servs., 951 F.2d 427, 431 (1st Cir.
1991).

The key is how detailed the reports themselves are:

those that “contain little more than brief conclusory statements

29

or the mere checking of boxes denoting levels of residual
capacity . . . are entitled to relatively little weight,” id.,
while those that “supported their conclusions with reference to
medical findings” ought be given more credit, Quintana v. Comm’r
of Social Sec., 110 F. App’x 142, 144 (1st Cir. 2004); see also
Morin v. Astrue, No. 10-cv-159-JL, 2011 WL 2200758, at *3
(D.N.H. June 6, 2011) (“[T]he ALJ’s decision to adopt an
assessment by a non-treating physician is further supported if
that assessment references specific medical findings indicating
that the claimant’s file was reviewed with care.”).

Reliance on

the report is further warranted when the expert report is not
the sole basis for the hearing officer’s RFC determination.

See

Morin, 2011 WL 2200758, at *6 (holding that agency was justified
in adopting expert RFC opinions when “the ALJ formulated his RFC
based on a review of all the evidence and then adopted the state
agency doctor’s opinions after determining that they ‘are not
inconsistent with the other substantial evidence in the
record’”).
Turning back to the facts of the case, Dr. Kresser’s report
meets the Berrios Lopez standard.

First, it is far more

detailed than the “check the box” style of report writing that
the First Circuit has criticized, Berrios Lopez, 951 F.2d at
431, but is rather a multi-page, narrative analysis that engages
with the relevant medical evidence.

30

See, e.g., Admin. R. 478

(“Evidence does not indicate[] more than moderate limitation
with concentration, persistence, or pace at least for non
complex activities as represented by scores of 74 in processing
speed.

Although claimant has low visual memory scores, it does

not represent deficits of more than a moderate nature due to
claimant’s ability to compensate with average auditory
skills.”).

Stated simply, Dr. Kresser provides evidence – in

the form of neuropsychological assessments and self-reported
functional information – that supports her conclusion, as is
required by the First Circuit.

See Ormon v. Astrue, 497 F.

App’x 81, 84 (1st Cir. 2012) (per curiam).

Second, the hearing

officer did not rely exclusively on Dr. Kresser’s report, but
rather considered it in conjunction with other evidence in the
record, Admin. R. 28-29, an analytical decision which further
justifies reliance on the report.

See Morin, 2011 WL 2200758,

at *6-7.
Nor do Blackette’s specific objections justify remand.
With respect to the criticism that Dr. Kresser’s report lacked
information on Blackette’s current medical history at the time
of writing, Dr. Kresser referenced medical evidence that was
only one month old at the time the report was written.

See

Admin. R. 477 (referencing form dated July 22, 2009, in a report
dated August 26, 2009).

Moreover, the First Circuit has

explicitly blessed the use of nonexamining, nontestifying

31

consultants, see Quintana, 110 F. App’x at 144, and such
consultants must necessarily and definitionally rely on
noncurrent information in making their determinations.
Accordingly, the use of slightly dated information cannot be a
per se cause for remand.
Second, Blackette argues that Dr. Kresser inadequately
summarized previous neuropsychological examinations, and did not
include information on the degrees of accommodation that
Blackette required.

See Pls.’ Mem. at 13-14.

Blackette points

to no case law indicating that an expert report must be rejected
if it does not summarize every detail of the raw medical data
upon which it is based, nor can this Court find a case standing
for such a proposition.

Blackette’s objection, it seems, goes

more to the weight and credibility that the hearing officer paid
to these reports, which is a judgment committed to the hearing
officer so long as there is, as here, evidence which could be
“adequate to support h[er] conclusion.”

Rodriguez v. Sec’y of

Health & Human Servs., 647 F.2d 218, 222-23 (1st Cir. 1981).
4.

Consideration of Reasonable Accommodations

Next, Blackette argues that the hearing officer did not
properly account for Blackette’s “need for accommodation for
[her] disability,” Pl.’s Reply 2, under the Americans with
Disabilities Act (“ADA”) in conducting her RFC.

32

Blackette correctly notes that “when the [Social Security
Agency] determines whether an individual is disabled for [Social
Security Disability Insurance] purposes, it does not take the
possibility of ‘reasonable accommodation’ into account, nor need
an applicant refer to the possibility of reasonable
accommodation when she applies for [Social Security Disability
Insurance].”

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S.

795, 803 (1999).

She argues that the hearing officer, when

making her RFC determination, improperly considered Blackette’s
capacity with the benefit of accommodation, and thus remand is
warranted.6
As an initial matter, this Court notes that Cleveland is
formally inapposite.

In that decision, the Supreme Court

clarified that the Social Security agency could not “take the
possibility of ‘reasonable accommodation’ into account” when
determining disability.

Id.

Such language is most naturally

read to mean that the agency cannot consider the possibility
that a claimant will receive an accommodation in determining
whether they would be able hold a job (i.e., the hearing officer
could not say “this claimant would be disabled unless she
received a reasonable accommodation, but I will assume she will
receive such an accommodation”).
6

See Henriquez v. Astrue, 482

It does not appear from the record that Blackette has
received formal accommodation through an ADA-driven process.
Rather, the more proper term would likely be “assistance.”
33

F. Supp. 2d 50, 59 (D. Mass. 2007) (Neiman, M.J.)

(stating that

the hearing officer must make “no assumption that [claimant’s]
[future] employer would accommodate her impairments”).

In this

case, the hearing officer did not make such a determination.
This Court reads Blackette’s argument as one that is subtly
different: she argues that the hearing officer did not properly
account for the degree to which she was given accommodation (or
assistance) in her activities of daily living when determining
her residual functioning.

Said differently, instead of

prospectively assuming that Blackette would get assistance in
the future, as would be forbidden under Cleveland, the hearing
officer, under this argument, failed to consider that Blackette
had retrospectively received accommodation.

Neither party cites

case law explicating this specific issue.
Even so, the factual proposition underlying Blackette’s
argument appears flawed, as the hearing officer did recognize
that Blackette received help.

Turning to the opinion, the

hearing officer recognized and considered the fact that
Blackette received accommodation in completing school.

See

Admin. R. 26 (“She testified that her husband was really
supportive after her injury, and that when she was still in
college, she was given some accommodations including notes,
deadline extensions and testing in a quiet room for a longer
period of time.

When asked if she could finish school without

34

the accommodations, the claimant said she could not.”); id. at
27 (noting that Blackette “was able to finish her college degree
(with assistance with classes and longer time for exams)”).

The

closer question is whether the hearing officer recognized that
Blackette received help for household activities.

Here, the

evidence is equivocal – for some activities, the hearing officer
did consider assistance, for some, she may not have.

The

hearing officer notes that Blackette did receive some
assistance, especially with memory issues.

See id. at 26-27

(“The claimant also remarked that she has memory problems, and
needs reminders to keep appointments.”).

The officer also

focused, however, on the types of activities Blackette was able
to do independently (i.e., without assistance), noting that she
could “work at a summer camp, and work as a substitute teacher,
plan her wedding, regularly exercise, and maintain a household.”
Id. at 27.

Such statements generally accord with Blackette’s

own testimony.

See, e.g., id. at 1244-48 (describing activities

of daily life).
These statements do not, however, fully accord with the
testimony of Blackette’s vocational rehabilitation counselor,
who noted that Blackette was to receive “intensive in-home
support to improve her organizational strategies and ability to
complete simple tasks such as dishwashing and food preparation.”
Id. at 180.

(This Court does note that the statements are not

35

entirely inconsistent – Blackette could have an ability to
maintain a household, while still benefiting from resources that
would help her better manage or maintain that household.)

The

hearing officer did not mention this counselor, and thus does
not explicitly consider this type of assistance, though she did
state that she based her decision “on the record as a whole,”
which implies implicit consideration.
The question is: is that enough?
case law on this issue.

Id. at 29.
Again, there is little

Relevant, though, is Judge Saylor’s

decision in Santiago ex rel. V.S. v. Astrue, No. 08-40248-FDS,
2010 WL 1379836 (D. Mass. Mar. 31, 2010) (Saylor, J.).

There,

in the context of social security benefits for children, which
is a somewhat different statutory scheme, Judge Saylor held that
the hearing officer “erred by failing to consider . . .
accommodations” provided by the child’s school, as required by
the governing regulation.

Id. at *10-12.

Judge Saylor did

recognize that implicit consideration could be sufficient, but
there was insufficient evidence of such implicit consideration
in that case.

See id. at *11.

This Court recognizes, however,

that this decision is only somewhat useful here: Santiago
addressed a specific regulatory context not relevant to this
case, and that decision held that there was not even implicit
consideration of accommodation, whereas in Blackette’s case
there was explicit consideration of accommodation across several

36

factors, just not of every example of accommodation in the
record.
This Court must then turn to more general principles.

The

case law is clear that a hearing officer “need not explicitly
refer to every piece of evidence in [her] decision,”

Martinez

ex rel. J.R.M. v. Astrue, No. 11-30258-KPN, 2012 WL 2914427, at
*4 (D. Mass. June 25, 2012) (Neiman, M.J.), “so long as [her]
factual findings as a whole show that [she] ‘implicitly
resolve[d]’” such findings, NLRB v. Beverly Enters.-Mass., Inc.,
174 F.3d 13, 26 (1st Cir. 1999) (alteration in original)
(quoting NLRB v. Berger Transfer & Storage Co., 678 F.2d 679,
687 (7th Cir. 1982)).

Moreover, the decision itself is subject

to the “substantial evidence” standard, which requires
affirmation “if a reasonable mind, reviewing the evidence in the
record as a whole, could accept it as adequate to support [the
hearing officer’s] conclusion.”

Pires v. Colvin, No. 12-10327-

GAO, 2014 WL 1051206, at *3 (D. Mass. Mar. 18, 2014) (O’Toole,
J.) (quoting Irlanda Ortiz, 955 F.2d at 769) (internal quotation
marks omitted).
Accordingly, this Court recognizes that the hearing officer
would have been well served by explicitly considering the
testimony of Blackette’s vocational rehabilitation counselor.
Even so, this Court holds that - given the lack of an explicit
legal requirement for the agency to consider all examples of

37

assistance - the explicit consideration of many examples of
assistance that Blackette received, the fact that types of
assistance not explicitly considered are not necessarily
inconsistent with evidence that was explicitly discussed, and
the fact that, looking at the record as a whole and especially
at Blackette’s own testimony, a reasonable mind could accept the
hearing officer’s conclusion, the hearing officer’s decisions do
not justify remand on this ground.
B.

Social Security Regulation 83-20

Next, Blackette argues that the hearing officer was
obligated to obtain a medical expert under Social Security
Regulation 83-20, Titles II & XVI: Onset of Disability (“SSR 8320), 1983 WL 31249, to determine when she was disabled.
Pl.’s Mem. 16-17.

See

This argument fails.

SSR 83-20 requires that “[i]n addition to determining that
an individual is disabled, the decisionmaker must also establish
the onset date of disability.”

SSR 83-20, 1983 WL 31249, at *1.

If the date of disability is not obvious from the record, and
thus must be inferred, the hearing officer “should call on the
services of a medical adviser.”

Id. at *3.

Here, however, the hearing officer ruled that Blackette was
not disabled.

Admin. R. 31.

Accordingly, SSR 83-20, which by

its plain text only applies after the hearing officer
“determin[es] that an individual is disabled,” is inapplicable.

38

SSR 83-20, 1983 WL 31249, at *1.

Arguing against this reading,

Blackette highlights two cases from within the Circuit, Ryan v.
Astrue, No. 08-cv-17-PB, 2008 WL 3925081 (D.N.H. Aug. 21, 2008),
and Bica v. Astrue, No. 09-cv-014-SM, 2009 WL 3756894 (D.N.H.
Nov. 9, 2009), and argues that they stand for the proposition
that these cases require the agency to make a date-of-disability
determination notwithstanding a no-disability ruling.
Mem. 17.

See Pl.’s

These cases do not stand for such a proposition.

Rather, they hold that an agency cannot “skip[] over the
question of present disability” and deny a benefits claim “by
determining that the claimant was not disabled as of her date
last insured.”

Ryan, 2008 WL 3925081, at *7.

If the agency has

determined that the applicant is not disabled, the regulation
does not apply.

See Bica, 2009 WL 3756894, at *4 (“[T]he ALJ

had an obligation first to address the issue of present
disability and then, if necessary, establish the onset date.”).
Accordingly, SSR 83-20 is wholly inapplicable to Blackette’s
case, and her argument on this point must be rejected.
C.

Credibility Explanation

Finally, Blackette argues that the hearing officer’s
determination that Blackette was not fully credible was not
“legally sufficient.”

See Pl.’s Mem. 17-20.

As a prerequisite matter, “[i]ssues of credibility and the
drawing of permissible inference from evidentiary facts are the

39

prime responsibility of the [agency].”

Rodriguez, 647 F.2d at

222 (alteration in original) (quoting Rodriguez v. Celebrezze,
349 F.2d 494, 496 (1st Cir. 1965)) (internal quotation marks
omitted).

A credibility determination by the hearing officer

“who observed the claimant, evaluated [her] demeanor, and
considered how that testimony fit in with the rest of the
evidence, is entitled to deference, especially when supported by
specific findings.” Simumba v. Colvin, No. 12-30180-DJC, 2014 WL
1032609, at *10 (D. Mass. Mar. 17, 2014) (Casper, J.)
(alteration in original) (quoting Frustaglia v. Sec’y of Health
& Human Servs., 829 F.2d 192, 195 (1st Cir. 1987)) (internal
quotation marks omitted).

Such determinations, however, “must

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

Id. (alteration in

original) (quoting Carr v. Astrue, No. 09-cv-10502-NG, 2010 WL
3895189, at *6 (D. Mass. Sept. 30, 2010) (Gertner, J.))
(internal quotation marks omitted).
In this case, the hearing officer had the chance to observe
Blackette in person, and she concluded that Blackette’s
“statements concerning the intensity, persistence and limiting
effects of [her] symptoms are not credible to the extent they
are inconsistent with the above residual functional capacity

40

assessment.”

Admin. R. 27.

She supported this assessment as

follows:
The claimant’s activities of daily living support a
finding of a much higher residual functional capacity
than the claimant alleges. For example, following the
claimant’s injury, she was able to finish her college
degree (with assistance with classes and longer time
for exams), work at a summer camp, and work as a
substitute teacher, plan her wedding, regularly
exercise, and maintain a household. The claimant has
also gone on trips to Hawaii and Israel after her
accident. At the hearing, as noted above, the
claimant also testified that she can drive herself,
she goes on the computer, looks for jobs, emails,
plays games, goes shopping and takes public
transportation. . . . The medical records outlined
above clearly demonstrate that the claimant for the
most part receives routine and conservative treatment;
when the claimant first had her accident, she was
subjected to a series of surgeries, however, after her
successful surgeries, she has shown constant
improvement and somewhat conservative treatment.
Id. at 27-28.

She also discussed the RFC reports of Drs.

Kresser, Perlman, and Davis, as discussed earlier.

See id. at

28-29.
This discussion, which includes specific references to
medical determinations and specific examples of the claimant’s
own self-reported activities of daily living, is the type of
“specific findings as to relevant evidence” that are required
under the statute.
In response, Blackette criticizes the hearing officer’s
recitation of Blackette’s ability to perform chores and other
household activities.

See Pl.’s Mem. 17-18.

41

While Blackette is

correct that such activities cannot, by themselves, demonstrate
an ability to work, they can be used – as the hearing officer
used them here – for credibility determinations.

Teixeira v.

Astrue, 755 F. Supp. 2d 340, 347 (D. Mass. 2010) (“While a
claimant’s performance of household chores or the like ought not
be equated to an ability to participate effectively in the
workforce, evidence of daily activities can be used to support a
negative credibility finding.”); see also Jette v. Astrue, No.
07-437A, 2008 WL 4568100, at *16 (D.R.I. Oct. 14, 2008) (stating
that the hearing officer may consider whether activities of
daily life are consistent with allegations of disability).
Next, Blackette points to the fact that her primary care
physician and therapist opined that she “could not perform all
of the functions of a job.”

Pl.’s Mem. 19.

The hearing officer

considered these sources, however, and gave them little weight,
mainly because they did not align with the available objective
medical evidence, were not acceptable medical sources (in the
case of her therapist) or were outside of their area of
specialty (in the case of her physician), and because they
contradicted Blackette’s “own activities of daily living and her
reports of her own abilities.”

Admin. R. 29.

This she may do

if supported by substantial evidence, which may include medical
evidence – such as expert reports – inconsistent with such
treating source reports.

See, e.g., Amaral v. Comm’r of Social

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Sec., 797 F. Supp. 2d 154, 162-63 (D. Mass. 2010); Tompkins v.
Colvin, No. 1:13-CV-73-GZS, 2014 WL 294474, at *4 (D.R.I. Jan.
27, 2014) (stating that treating source report can be rejected
if hearing officer gives “supportable reasons for rejecting
it”).

Such reasons are sufficiently substantial for these

purposes.
In essence, Blackette provides an alternate interpretation
of her symptoms – one where she struggles to work, but cannot do
so, despite her best efforts.

Were it to interpret this

evidence anew, this Court may well adopt this view.

Under the

relevant framework, though, this Court must affirm the agency
decision if supported by substantial evidence, “even if the
record arguably could justify a different conclusion.”

Tsarelka

v. Sec’y of Health & Human Servs., 842 F.2d 529, 535 (1st Cir.
1988).
V.

So it is here.

CONCLUSION
For the aforementioned reasons, Blackette’s motion to

remand, ECF No. 13, is DENIED, and the Agency’s motion for an
order affirming the decision of the Commissioner, ECF No. 25, is
GRANTED.

SO ORDERED.

_/s/ William G. Young__
WILLIAM G. YOUNG
DISTRICT JUDGE

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