Peters v. Colvin
Filing
25
Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER"For the foregoing reasons, this Court AFFIRMS the decision of the hearing officer, GRANTS the Defendants Motion to Affirm the Commissioners Decision, ECF No. 19 , and DENIES the Plaintiffs Motion for Order Reversing the Commissioners Decision, ECF No. 15 . SO ORDERED."(Sonnenberg, Elizabeth)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KELLY PETERS,
(f/k/a) KELLY ANNE ONEILL
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner, Social
Security Administration,
Defendant.
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CIVIL ACTION
NO. 14-11764-WGY
YOUNG, D.J.
September 23, 2015
MEMORANDUM & ORDER
I.
INTRODUCTION
This is an action under sections 1631(c)(3) and 205(g) of
the Social Security Act through which Kelly Peters (“Peters”)
seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying
her Social Security disability (“SSDI”) benefits.
No. 1.
Compl., ECF
Peters avers that the Administrative Law Judge (the
“hearing officer”) did not base his denial of SSDI benefits on
substantial evidence.
Id. ¶ 9.
Specifically, Peters argues
that in deciding that she was not disabled because she was
capable of performing her past relevant work, the hearing
officer made a credibility determination that was not supported
1
by substantial evidence.
Mem. Law Supp. Pl.’s Mot. Order
Reversing Comm’r’s Decision (“Pl.’s Mem.”) 17, ECF No. 16.
Furthermore, Peters claims that the hearing officer did not give
proper weight to the opinion of her long-term treating
physician.
Id. at 20.
Thus, Peters asks this Court to reverse
the decision of the hearing officer and award her SSDI benefits,
Compl. 3, or alternatively, remand her claim for further
assessment, Pl.’s Mem. 20.
The Commissioner requests that this
Court affirm her decision denying Peters SSDI benefits.
Mem.
Law Supp. Def.’s Mot. Affirm Comm’r’s Decision (“Def.’s Mem.”)
18, ECF No. 20.
A.
Procedural Posture
On February 2, 2011 Peters applied for SSDI benefits, and
on February 3, 2011, she applied for supplemental security
income, initially alleging a disability onset date of November
1, 2005.
She later amended the disability onset date to August
10, 2009 at the administrative hearing.
Compl. ¶ 4;
Administrative Record (“Admin. R.”) 9, 30.
Both applications
were denied on June 16, 2011 and again after reconsideration on
October 20, 2011.
Admin. R. 9.
After filing a written request,
a hearing on her claim was held on January 22, 2013 in front of
the hearing officer at the Boston Office of Disability.
Compl. ¶ 6.
Id.;
The hearing officer denied Peters SSDI benefits in
a decision dated February 15, 2013.
2
Admin. R. 16; Compl. ¶ 7.
Peters appealed the hearing officer’s decision, but on February
10, 2014 the Appeals Council informed her that it declined to
review the hearing officer’s decision and as such, the decision
was final.
Admin. R. 1, Compl. ¶ 8.
On April 10, 2014, Peters filed the present action in the
United States District Court for the District of Massachusetts
seeking review of her claim pursuant to 42 U.S.C. §¶ 405(g) and
1383(c)(3).
Compl. ¶ 3.
Peters filed a motion and supporting
memorandum seeking a reversal of the Commissioner’s decision.
Pl.’s Mot. Order Reverse Comm’r’s Decision, ECF No. 15; Pl.’s
Mem.
In response, the Commissioner filed a motion and
supporting memorandum requesting that her decision be affirmed.
Def.’s Mot. Affirm Comm’r’s Decision, ECF No. 19; Def.’s Mem.
Peters replied in further support of her motion.
Pl.’s Reply
Mem. (“Pl.’s Reply”), ECF No. 24.
B.
Factual Background
At the time of the alleged disability onset date of August
10, 2009, Peters was a thirty-one year old woman suffering from
symptoms caused by fibromyalgia, osteoarthritis, overactive
bladder, and degenerative disc disease.
Admin R. 11; 30.
The
record contains voluminous evidence of medical treatment that
occurred prior to her alleged disability onset date, but as this
is not relevant to whether Peters was disabled in August 2009,
it is not discussed in detail here.
3
In December 2008, Peters
sought medical treatment for widespread pain all over her body
and a physical examination revealed trigger points, which are
related to fibromyalgia.
Admin. R. 404, 407.
At this
appointment, Peters stated that while she could perform
household chores, she could not stand or carry more than 20
pounds for long periods of time.
Id. at 404.
On March 11, 2009
Peters returned to the doctor’s office complaining of various
sources of pain.
Id. at 744-45.
The record confirms that she
was diagnosed with fibromyalgia previously, but by April 2009,
Peters told her treating physician, Dr. Nsa Henshaw (“Dr.
Henshaw”), that her pain was reduced to a five out of ten and
she was able to swim once a week.
Id. at 743-44.
Dr. Henshaw
referred her to an acupuncturist because she “seem[ed] to have
exhausted all classes of meds.”
Id. at 744.
When Peters met with the acupuncturist, she stated that her
pain was at a five or six out of ten, but the pain was constant.
Id. at 759.
Peters further informed the acupuncturist that
while she was capable of caring for her then-two-year-old son,
it was difficult and she could not pick him up on days when she
experienced a great amount of pain.
Id.
She also stated that
her pain was such that she could not go grocery shopping or do
laundry.
Id. at 760.
At a follow-up visit with Dr. Henshaw,
Peters stated that the acupuncture was ineffective as she
4
continued to experience back pain, joint pain, and stiffness.
Id. at 785-86.
On August 10, 2009 Peters went to the emergency room at
Massachusetts General Hospital complaining of back pain at a
five out of ten on the pain scale.
Id. at 789.
An examination
revealed that Peters’ back was tender and had a limited range of
motion, but otherwise her exam was normal, including an absence
of trigger points, despite her history of fibromyalgia.
790-91.
Id. at
The emergency room physician diagnosed Peters with back
pain and discharged her.
Id. at 791.
On November 17, 2009
Peters suffered a neck strain, causing a spasm that limited her
range of movement, for which she was given pain medication.
at 804-05.
Id.
On December 16, 2009 Peters went to the emergency
room again complaining of chest pain, but it was later
determined that she experienced the pain in conjunction with
cocaine use.
Id. at 819. On January 29, 2010 Peters saw Dr.
Henshaw for a follow-up visit regarding her fibromyalgia, and
Peters reiterated that her back pain was constant, her feet and
knee pains were intermittent, and she was stiff and experiencing
fatigue.
Id. at 818-19.
Dr. Henshaw referred Peters to
Massachusetts General Hospital for a second opinion regarding
her fibromyalgia.
Id. at 819.
At Massachusetts General Hospital, Peters was seen by Drs.
Tabtabai and Pinals, and she informed them of her lack of
5
successful treatment of her fibromyalgia and her inability to
work for the past six years due to the pain.
Id. at 827.
A
physical examination revealed symptoms consistent with
fibromyalgia and osteoarthritis of the knees, and the doctors
recommended exercise and a higher dose of medication.
828.
Id. at
On February 22, 2011 Peters again visited the emergency
room because of neck and shoulder pain that had been ongoing for
four days with a pain level of ten out of ten on the pain scale.
Id. at 847.
Her physical exam was normal besides stiffness and
tenderness in the neck, and Peters was prescribed Ultram and
Valium.
Id. at 848-49.
On March 9, 2011 Peters fell and hurt
her left knee, and Dr. Henshaw stated that she was most likely
suffering from patellar tendinitis; Peters was prescribed Motrin
and physical therapy.
Id. at 415.
On March 16, 2011 Dr. Henshaw filled out an arthritis
questionnaire on which she noted that though Peters complained
of chronic neck pain, she had not ever been diagnosed with
arthritis.
Id. at 422.
Soon after, on March 25, 2011 Peters
sought medical treatment complaining of ongoing fatigue and
nausea but stated that she was not in any pain.
Id. at 861-62.
At this time, Peters had ceased taking medication due to a
suspected pregnancy, which was confirmed on March 31, 2011.
at 862.
Id.
On June 14, 2011 Peters complained of ongoing pain that
was hindering her mobility, particularly in her right heel,
6
which was diagnosed as plantar fasciitis.
Id. at 898-99.
After
giving birth in November, Peters reported at an appointment in
December 2011 that physically she felt well and was no longer
suffering from back or joint pain.
Id. at 921.
By January 25,
2012, however, Peters returned to Dr. Henshaw’s office
requesting to be put back on pain medication, although she did
state that she was not in pain.
Id. at 931.
A physical
examination revealed paraspinal tenderness and impaired
mobility.
Id. at 931-32.
At this same appointment, Peters
informed Dr. Henshaw that she was applying for SSDI benefits and
asked for a letter to give to her attorney.
Id.
Dr. Henshaw
provided such a letter on February 2, 2012 detailing the
symptoms and impairments for which she had treated Peters since
2005 and emphasizing Peters’ fibromyalgia diagnosis.
886.
Id. at
On January 18, 2013 Dr. Henshaw completed a medical source
statement form in which she stated that she had treated Peters’
fibromyalgia and chronic back pain since 2005.
Id. at 954.
She
further wrote that Peters was capable of carrying ten pounds
occasionally and less than ten pounds frequently, and that she
could stand for less than one hour in a workday and sit for two
hours in a workday.
Id.
On August 29, 2011, Dr. Libbie Russo (“Dr. Russo”) reviewed
the record and completed a case analysis as part of Peters’
disability determination.
Id. at 48-57.
7
Dr. Russo opined,
based on Peters’ medical record, that she could carry ten pounds
occasionally and frequently, could stand or walk for two hours
in an eight-hour workday, could sit for more than six hours in
an eight-hour workday, and could occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, or crawl.
Id. at 55.
On
September 28, 2011 Dr. Harris C. Faigel also reviewed Peters’
medical record and stated that Peters could lift or carry twenty
pounds occasionally and ten pounds frequently, could stand or
walk for four hours in an eight-hour workday, could sit for more
than six hours, and could occasionally climb ramps and stairs,
balance, stoop, kneel, crouch, or crawl.
II.
Id. at 79-80.
LEGAL STANDARD
A.
Standard of Review
Although this Court can “affirm, modify, or reverse a
decision of the Commissioner,” Rivera v. Astrue, 814 F. Supp. 2d
30, 33 (D. Mass. 2011), in reviewing decisions of the
Commissioner, “the findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive,” 42 U.S.C. § 405(g).
“As it is the role of
the Commissioner to draw factual inferences, make credibility
determinations, and resolve conflicts in the evidence, the Court
must not perform such tasks in evaluating the record.”
814 F. Supp. 2d at 33.
Rivera,
Thus, the Commissioner’s findings and
decisions must be upheld “if a reasonable mind, reviewing the
8
evidence in the record as a whole, could accept it as adequate
to support [her] conclusion.”
Irlanda Ortiz v. Sec’y of Health
& Human Servs., 955 F.2d 765, 769 (1st Cir. 1991).
While this
Court can alter a decision of the Commissioner, it is only
empowered to do so if “[she] has committed a legal or factual
error in evaluating a particular claim.”
Manso-Pizarro v. Sec’y
of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996).
This
means that as long as the record arguably supports the
Commissioner’s decision, even if another outcome is equally
plausible, the Commissioner’s determination must stand “‘so long
as it is supported by substantial evidence.’”
Rivera, 814 F.
Supp. 2d at 33 (quoting Rodriguez Pagan v. Sec’y of Health &
Human Servs., 819 F.2d 1, 3 (1st Cir.1987)).
Thus, this Court
can reverse a decision only if it was “derived by ignoring
evidence, misapplying the law, or judging matters entrusted to
experts.”
Bazile v. Apfel, 113 F. Supp. 2d 181, 184 (D. Mass.
2000) (quoting Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)
(per curiam)).
B.
Social Security Disability Standard
A disabled person in the context of Social Security
disability benefits is someone who is unable “to do any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
9
last for a continuous period of not less than 12 months.”
C.F.R. § 404.1505.
20
The Social Security Administration employs a
five-step process to determine whether a person is disabled
within the meaning of the regulation.
Id. § 404.1520(a)(4).
First, the hearing officer asks whether the claimant is
currently performing “substantial gainful activity,” meaning
work that is both substantial and gainful.
404.1520(a)(4)(i).
Id. §
Substantial work “involves doing significant
physical or mental activities,” id. § 404.1572(a), while gainful
work is any work “done for pay or profit, whether or not profit
is realized,” id. § 404.1572(b).
If the claimant is found to be
performing substantial gainful activity, she is not disabled.
Id. § 404.1520(a)(4)(i).
If the claimant is not currently
engaging in substantial gainful activity, the inquiry moves to
the second step, which asks whether the claimant’s impairment,
or combination of impairments, is severe.
Id. § 404.1520(c).
A
severe impairment is one that “significantly limits [the
claimant’s] physical or mental ability to do basic work
activities.”
Id.
If the claimant’s impairment does not rise to
the level of severe, she is not disabled and the inquiry ends.
See id.
If the hearing officer deems the impairment severe he then
undertakes the third step of the analysis, where he determines
if the severity of the impairment is such that it is “equivalent
10
to a specific list of impairments contained in the regulations.”
Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st
Cir. 1982).
“If the claimant has an impairment of so serious a
degree of severity, the claimant is automatically found
disabled.”
Id.
If not, then the hearing officer moves on to
the fourth step, at which the hearing officer decides whether
the claimant has the residual function capacity to do her past
relevant work, meaning work that she has performed within the
last 15 years that lasted long enough to be substantial gainful
activity.
20 C.F.R. § 404.1520(e); id. § 404.1560(b).
If the
claimant can perform her past relevant work, she is not
disabled.
Goodermote, 690 F.2d at 7.
If she cannot, the
inquiry proceeds to the fifth and final step, at which point the
burden then shifts to the Social Security Administration to show
that given the claimant’s age, education, and prior work
experience, combined with her impairment(s), she can “perform[]
other work of the sort found in the economy.”
C.F.R. § 404.1512(f).
Id.; see also 20
If the Social Security Administration
cannot show that the claimant can do any other work, she will be
deemed disabled.
III.
See id.; see also 20 C.F.R. § 404.1520(f).
THE HEARING OFFICER’S DECISION
Upon reviewing all of the evidence, the hearing officer
ultimately decided that Peters was not disabled between August
10, 2009 (her claimed disability onset date) and the time of his
11
decision.
Going through the five-step inquiry discussed above,
he first determined that Peters had not undertaken substantial
gainful activity since her disability onset date of August 10,
2009.
Admin. R. 11.
He next stated that Peters suffers from
severe impairments, specifically osteoarthritis, degenerative
disc disease, overactive bladder, and fibromyalgia, however, her
impairments do not meet the severity of one of the impairments
listed in the regulations.
Id. at 11, 13.
He specifically
noted that Peters’ knee issues do not constitute a major
dysfunction of a joint under the Listings of Impairments in
section 1.02 because she is able to “ambulate effectively.”
at 13.
Id.
Moving on to step four, the hearing officer decided that
Peters has a residual functional capacity to perform sedentary
work and that she
can occasionally lift ten pounds; can frequently
lift less than ten pounds; can stand and/or walk at
least two hours total in an eight-hour workday; can
sit (with normal breaks) for about six hours in an
eight-hour
workday;
can
occasionally
climb,
balance, stoop, kneel, crouch, and crawl; requires
the ability to take one five-minute bathroom break
per hour; and requires the ability to alternate
between sitting and standing in the performance of
work tasks.
Id.
To determine her residual functional capacity, the hearing
officer considered “whether there [was] an underlying medically
determinable physical or mental impairment(s) . . . that could
12
reasonably be expected to produce the claimant’s pain or other
symptoms.”
Id.
Then, after finding that there was such an
underlying medically determinable impairment, the hearing
officer “evaluate[ed] the intensity, persistence, and limiting
effects of the claimant’s symptoms to determine the extent to
which they limit the claimant’s functioning.”
Id.
This
included taking into account Peters’ own statements about her
impairments, but to the extent that her statements were not
“substantiated by objective medical evidence [the hearing
officer] [made] a finding on the credibility of the statements
based on . . . the entire case record.”
Id.
The hearing officer found that based upon the entirety of
the case record, Peters’ statements regarding her impairments
and their limiting effects were not credible.
Id. at 14.
Peters testified that she suffers chronic pain in her neck,
back, legs, and feet that is unaffected by the medications
Lyrica and Flexeril.
Id. at 13.
She further testified that she
is unable to sit for more than half an hour at a time and stand
for more than fifteen to twenty minutes.
Id. at 14.
She also
cannot walk more than five to six city blocks before needing to
rest, and her overactive bladder makes it difficult to sleep
through the night.
Id. at 14.
The hearing officer highlighted
Peters’ statements regarding her daily activities, specifically
her ability to care for her two children (ages five years and
13
fourteen months, respectively).
Peters stated that she gets her
five-year-old ready for school and feeds both children in the
mornings.
Id. at 14.
She is capable of cooking easy-to-prepare
meals such as sandwiches but cannot stand for prolonged periods
at the stove.
Id.
While her son is at school, Peters testified
that her daughter “spends the day playing independently in a
playroom while the claimant sits in a recliner in her bedroom,”
and that she can usually care for her daughter on her own, but
sometimes requires assistance from her mother “two to three days
per week when her pain and fatigue are more severe.”
Id.
Peters further stated that although she has a drivers’ license,
she can only drive for fifteen to twenty minutes at a time and
she is also incapable of performing household chores such as
laundry or vacuuming.
Id.
Peters also stated that she plays
pool for recreation once a week.
Id.
The hearing officer surmised that although Peters’ alleged
symptoms reasonably could be expected to be caused by her
orthopedic impairments and fibromyalgia, her testimony regarding
the limiting effects of the symptoms were “not entirely
credible.”
Id.
First, the hearing officer found that “[t]he
objective and clinical evidence of record” showed that Peters’
knee problems were not so severe so as to preclude her from
sedentary work.
Id.
Namely, Peters’ medical records show that
in 2004 she had a left medial meniscal repair, and in 2005 after
14
re-tearing her meniscus, she had a second repair “with good
result.”
Id.
Furthermore, the records from her July 2010
examination showed that she had a “full range of motion in both
knees with full strength, sensation, and reflexes” and although
she reported knee pain in March 2011, the physical exam revealed
no instability.
Id.
Second, the hearing officer decided that
Peters’ ability to care for a five-year-old and fourteen-monthold child “is inconsistent with her allegation of total
disability,” especially considering that Peters described her
children as “pretty active.”
Id. at 15, 31.
The hearing
officer further stated that he did not credit Peters’ claim that
her fourteen-month-old daughter plays independently all day
while she rests in a recliner.
Id. at 15.
The hearing officer also noted that he was declining to
give much weight to the opinion of Peters’ treating physician,
Dr. Henshaw, regarding Peters’ disability and physical
limitations, and instead chose to rely on the opinion of the DDS
medical consultant, Dr. Russo.
Id.
Specifically, the hearing
officer concluded that the treating physician’s opinion that
Peters is extremely functionally limited is “inconsistent with
[Peters’] demonstrated ability to care for two young children
ages five and fourteen months.”
Id.
Thus, based on Peters’
physical impairments and their effects on her ability to
function as supported by the case record as a whole, the hearing
15
officer agreed with the opinion of a vocational expert and
determined that Peters’ residual functioning capacity is for
sedentary work activity and as such she can perform past
relevant work as a clerical assistant or medical secretary.
Id.
The hearing officer therefore found that Peters is not disabled
and summarily denied her application for SSDI benefits.
Id. at
15-16.
IV.
ANALYSIS
Peters contests the hearing officer’s determination on the
ground that he did not base his credibility determination on
substantial evidence.
Pl.’s Mem. 16.
Specifically, she asserts
that the hearing officer did not consider all of the factors set
forth by the First Circuit in Avery v. Sec’y of Health & Human
Servs., 797 F.2d 19 (1st Cir. 1986), and thus his decision was
not based on substantial evidence.
Id. at 17.
Peters also
argues that although the hearing officer is not compelled to
give controlling weight to the opinion of the treating
physician, his decision should be overturned because he did not
consider all of the factors enumerated in 20 C.F.R. §
416.927(d), and he did not provide a satisfactory reason for
rejecting the testimony and opinion of Peters’ treating
physician, Dr. Henshaw.
Id. at 20.
16
A. The Hearing Officer’s Credibility Determination was Based
on Substantial Evidence.
As part of establishing the claimant’s residual functional
capacity, the hearing officer must determine first whether there
is an underlying medical impairment that reasonably can be
expected to produce the claimant’s symptoms, and second the
intensity of those symptoms and their effect on the claimant’s
ability to function.
Avery, 797 F.2d at 20-21.
When assessing
the intensity or severity of the claimant’s symptoms, the
hearing officer takes into account the claimant’s subjective
statements regarding her symptoms.
If there are any
inconsistencies, or the subjective statements are not supported
by objective medical evidence, the hearing officer makes a
credibility determination and decides how much weight to give
the claimant’s own statements about her symptoms and their
effects.
1998).
Green v. Astrue, 588 F. Supp. 2d 147, 155-56 (D. Mass.
In reviewing the hearing officer’s credibility
determination, this Court should ask “(1) whether there is
sufficient evidence to show that the hearing officer properly
addressed all of her subjective allegations, and (2) if so,
whether he followed the proper procedure for assessing pain and
credibility.”
Green, 588 F. Supp. 2d at 156.
Here, the hearing officer acknowledged that Peters’ alleged
symptoms reasonably could stem from her medical impairments of
17
fibromyalgia, orthopedic issues, and overactive bladder.
R. 14.
Admin.
In doing so, he addressed and considered all of the
medical conditions and related symptoms that Peters alleged, as
required by Green.
The hearing officer, however, found that
Peters’ testimony and statements about the severity and limiting
effects of her symptoms were not credible because they were
inconsistent with her testimony about her daily activities and
child care capabilities.
Id. at 14-15.
Specifically, the
hearing officer stated that Peters’ statements, as well as the
evidence in the record, show that she is able to care for two
small, active children and can drive and prepare meals, albeit
for short periods of time, so her statements regarding the
severity of her alleged symptoms are inconsistent with her
“activities of daily living.”
Id. at 15; see also Green, 588 F.
Supp. 2d at 157 (discrediting claimant’s subjective complaints
because “[t]he hearing officer concluded that her regular
reading and viewing of television discredited her allegations
that she cannot concentrate or pay attention for more than a
short period of time”).
Peters states, however, that the credibility determination
was improper because the hearing officer did not “comport with
the Avery factors,” and so his decision is not based on
substantial evidence.
Pl.’s Mem. 17.
Avery instructs the
hearing officer to consider (1) “the nature, location, onset . .
18
. and intensity of any pain”; (2)”precipitating and aggravating
factors”; (3) “type, dosage, effectiveness, and adverse sideeffects of any pain medication”; (4) “treatment, other than
medication”; (5) “functional restrictions” and; (6) “the
claimant’s daily activities.”
Avery, 797 F.2d at 29.
The
hearing officer, however, is not required to “slavishly discuss
all [Avery] factors relevant to analysis of a claimant's
credibility and complaints of pain in order to make a
supportable credibility finding.”
Amaral v. Comm’r of Soc.
Sec., 797 F. Supp. 2d 154, 162 (D. Mass. 2010) (ruling that the
hearing officer’s determination was supported by substantial
evidence and thus entitled to deference where he “observe[d] and
evaluate[d] a claimant, and ma[de] specific findings”); see also
Wright v. Barnhart, 389 F. Supp. 2d 13, 23 (D. Mass. 2005)
(Bowler, M.J.) (refusing to reverse the hearing officer’s
decision even though he did not “ask all the Avery questions”
because he “considered the complaints of pain and its [e]ffect
on claimant's activity and discussed them in his decision”).
The hearing officer comported with Avery because he asked
Peters many questions to elicit information about her daily
activities and the effects of her symptoms on her ability to
perform those activities.
See Admin. R. 31-35.
He also had
Peters’ attorney question her to develop the record regarding
her medications, treatment, pain level, and restrictions.
19
See
id. at 35-41.
He reached the conclusion, however, after
conducting this detailed inquiry, that her symptoms did not
affect her ability to function as severely as she claimed
because the evidence in the record showed that Peters was
capable of caring for two small children.
This is sufficient to
develop the record such that the hearing officer’s decision is
adequately based on substantial evidence.
See Wells v.
Barnhart, 267 F. Supp. 2d 138, 145-46 (D. Mass. 2003) (holding
that questioning by the hearing officer that indicated that
plaintiff “plays with a five-year old child for an hour and a
half to two hours in the morning before he goes to school,
sometimes makes him breakfast, and spends time caring for him
after school” was “thorough and [was] not so flawed as to
warrant remand”).
Thus, the hearing officer’s credibility
determination was proper and must be accorded deference.
Furthermore, the hearing officer did take into account
Peters’ statements regarding the severity of her symptoms and
their effect on her daily life when making his recommendation.
For example, he stated that she must be allowed at least one
five-minute bathroom break per hour due to her alleged symptoms
stemming from her overactive bladder.
Admin. R. 13.
Although
the hearing officer did not agree with the severity that Peters
claimed, he did find that she has limited mobility and cannot
sit or stand for long periods of time.
20
Id.
As a result, the
hearing officer found that Peters could only perform work in the
sedentary range with normal breaks, including bathroom breaks
once every hour.
Id. at 15-16.
In making his finding that she
could perform sedentary work, the hearing officer based his
credibility determination on substantial conflicting evidence in
the record, and he accounted for some of Peters’ own statements
about the effect of her symptoms on her daily activities.
Thus,
the Court will not overturn or remand the hearing officer’s
determination.
B. The Treating Physician’s Opinion is not Entitled to
Controlling Weight.
A treating physician’s medical opinion is not entitled
controlling weight if it is not well supported or it is
“inconsistent with the other substantial evidence in [the] case
record.”
20 C.F.R. § 404.1527(a)(2).
If the hearing officer
elects not to give the treating physician’s opinion controlling
weight, he must explain his reasons for not giving the opinion
controlling weight.
20 C.F.R. § 416.927(a)(2); see also Shields
v. Astrue, 10-10234-JGD, 2011 WL 1233105, at *8 (D. Mass. 2011)
(Dein, M.J.) (“Because the [hearing officer] supported his
rejection of the treating physician's opinions with express
references to specific inconsistencies between the opinions and
the record, [his] decision not to grant [the treating
physician’s] opinions significant probative weight was not
21
improper”).
The regulations provide factors to assist the
hearing officer in his determination of whether to give the
treating physician controlling weight;1 the hearing officer,
however, is not required to assess every factor in detail if his
decision is based on substantial evidence.
See Green, 588 F.
Supp. 2d at 154 (refusing to remand a case where the hearing
officer did not address each factor set forth in the regulation
because his decision was supported by substantial evidence and
“[i]t would be a waste of judicial resources to remand this case
so that another hearing officer may arrive at the same decision
with more clarity”).
Peters’ treating physician, Dr. Henshaw, expressed her
opinion that Peters could lift and carry ten pounds occasionally
(up to 1/3 of an eight-hour workday), less than ten pounds
1
20 C.F.R. § 404.1527(c) provides factors for the hearing
officer to consider when weighing medical opinions. The Social
Security Administration promulgated this regulation seeking to
harmonize divergent views among the circuits concerning the
weight to be accorded to the opinion of a treating physician.
See Guyton v. Apfel, 20 F. Supp. 2d 156, 167 n.14 (D. Mass.
1998) (citations omitted). Nevertheless, inconsistency
persists. Id. (collecting cases); Paul R. Verkuil & Jeffrey S.
Lubbers, Alternative Approaches to Judicial Review of Social
Security Disability Cases, 55 Admin. L. Rev. 731, 754-55 (2003)
(noting widespread perception of a “problem of inconsistent
application of the law” in the Social Security disability
system); Jonah J. Horwitz, Social Insecurity: A Modest Proposal
for Remedying Federal District Court Inconsistency in Social
Security Cases, 34 Pace L. Rev. 30, 37 (2014) (“[I]nconsistency,
even if it can, at times, lead to greater generosity, is the
most serious problem plaguing the [Social Security] system[.]”).
22
frequently, could stand and/or walk less than one hour in an
eight-hour workday, and sit for two hours in an eight-hour
workday.
Admin. R. 954.
The hearing officer, however, rejected
Dr. Henshaw’s opinion that Peters suffered “extreme functional
limitations” because the evidence of Peters’ daily activities in
the record, which indicates that she is able to care for two
small children, contradicts Dr. Henshaw’s finding of severe
functional limitations.
See id. at 15.
Peters claims that the hearing officer’s decision is not
supported by substantial evidence because he did not discuss the
treatment record for Peters’ fibromyalgia.
Pl.’s Reply 2-3.
This reasoning is faulty because the hearing officer did not
have to discuss Peters’ fibromyalgia treatment record; the
hearing officer clearly explained why he declined to give the
treating physician’s opinion controlling weight, namely, Dr.
Henshaw’s opinion was inconsistent with the evidence in the
record showing that Peters does not in fact have such severe
functional limitations.
Admin. R. 15.
Such a conclusion is
within the hearing officer’s sound discretion.
Thus, the hearing officer did not err when he refused to
give Peters’ treating physician’s opinion controlling weight;
Dr. Henshaw’s opinion that Peters is severely functionally
limited in her daily activities is inconsistent with the
evidence in the record showing that Peters is able to care for
23
two young children, prepare meals, and drive short distances.
Because the hearing officer provided a satisfactory reason for
his decision, and that reason is supported by evidence in the
record, the Court will uphold his decision not to give Dr.
Henshaw’s opinion controlling weight.
V.
CONCLUSION
For the foregoing reasons, this Court AFFIRMS the decision
of the hearing officer, GRANTS the Defendant’s Motion to Affirm
the Commissioner’s Decision, ECF No. 19, and DENIES the
Plaintiff’s Motion for Order Reversing the Commissioner’s
Decision, ECF No. 15.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
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