Robichau v. Colvin
Filing
24
Magistrate Judge M. Page Kelley: ORDER entered. MEMORANDUM AND ORDER(adminn, )
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ALLAN PAUL ROBICHAU,
Plaintiff,
CIVIL ACTION NO. 14-14119-MPK1
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security Administration,
Defendant.
MEMORANDUM AND ORDER ON
PLAINTIFF’S MOTION FOR JUDGMENT ON
THE PLEADINGS (#12) AND DEFENDANT’S
MOTION FOR AN ORDER AFFIRMING
THE DECISION OF THE COMMISSIONER (#22).
KELLEY, U.S.M.J.
I. INTRODUCTION
Plaintiff Allan Paul Robichau seeks reversal of the decision of Defendant
Carolyn W. Colvin, Acting Commissioner of the Social Security Administration,
denying him Social Security Disability Insurance (“SSDI”) and Supplemental Security
Income (“SSI”) benefits. Defendant moves for an Order affirming her decision. With
1
With the parties’ consent, this case was reassigned to the undersigned for all purposes,
including trial and the entry of judgment, pursuant to 28 U.S.C. § 636(c). (#19.)
the administrative record (#7) having been filed and the issues fully briefed (##13,
23), the cross motions stand ready for decision.
II. BACKGROUND
A. Procedural History
Robichau filed for SSDI and SSI on June 9, 2011. (TR2 at 111, 294.) His
disability onset date was June 20, 2009. (TR at 293, 297.) The two claims were
originally denied on September 28, 2011 and then again on reconsideration on January
30, 2012. (TR at 111-114.) Plaintiff requested a hearing before an administrative law
judge, which was held on June 18, 2013. (TR at 48-83.) Robichau appeared at the
administrative hearing with his legal representative. (TR at 48.) Both Plaintiff and a
vocational expert testified at the hearing before the ALJ. (TR at 48-83.)
The ALJ issued a decision unfavorable to Robichau on July 12, 2013. (TR at
27-41.) Plaintiff filed a request for review of hearing decision on July 26, 2013. (TR
at 6-7.) On September 11, 2014, the Appeals Council denied the request for review.
(TR at 1-5.) As a consequence of the denial, the ALJ’s decision de facto became the
final decision of the Acting Commissioner, subject to judicial review under 42 U.S.C.
§ 405(g). The instant action was filed on November 9, 2014. (#1.)
B. Factual History
2
The designation “TR” refers to the administrative record. (#7.)
2
According to his testimony at the administrative hearing, at that time Plaintiff
was 48 years old and went as far as the seventh grade in school. (TR at 52-53.)
Robichau is married and has a son. (TR at 72.) He lives with his wife, son, and
parents. Id. Robichau worked as a roofer from 1988 to 2005; for Home Depot as a
freight mover from 2005 to 2009; and again as a roofer for one to two weeks in 2011.3
(TR at 53-57.) He has not worked since his brief stint as a roofer in 2011. (TR at
56.)
1. Medical History
Robichau’s relevant medical history begins in October 2007 when he received
the first of five injections in his spine to combat back pain. (TR at 396.) The injections
continued into July of 2008. (TR at 392-397, 412-413.) On October 17, 2008,
Robichau received an MRI of his lumbar spine which revealed, inter alia, “[m]ild
stable chronic anterior wedging of the L2 vertebral body suggest[ing] a remote old
healed L2 vertebral body compression fracture, . . . [m]ild stable degenerative
changes, . . . [and] [s]light scoliosis.” (TR at 465-466.)
On January 19, 2009, Plaintiff, complaining of back pain radiating into the right
3
Plaintiff testified that he was immediately let go from his 2011 roofing job because his
employer felt that he was no longer able to perform the tasks necessary to complete the work. (TR
at 57.) This period of employment was not included in his Work History Report. (See TR at 305.)
3
hip, was treated at the Emergency Department of the Lahey Clinic (“Lahey ED”). (TR
at 407-410.) The cause of the injury was determined to be shoveling snow. (TR at
407.) Robichau was diagnosed with an acute lumbar strain, prescribed Vicodin,
limited in his lifting for a week, and told to follow up with a physical therapist. (TR
at 407-410.)
On June 13, 2009, Plaintiff was seen in the Emergency Department of the
Northeast Hospital Corporation (the “Northeast ED”) for complaints of chest, left arm,
and left back pain that had been ongoing for the previous week. (TR at 416.) The level
of pain was stated to be a 5 out of 10. Id. Robichau was prescribed Tylenol with
Codeine and referred to his primary care physician for a follow-up appointment. (TR
at 417.)
On July 14, 2009, Plaintiff was in a low-speed motor vehicle accident and was
taken to the Northeast ED for neck pain. The level of pain was said to be 8 out of 10.
(TR at 418.) The treating physician noted that Robichau stated that after the accident
“he took a couple of Vicodin, drank some alcohol, and then decided to come to the
emergency department to have [his neck] evaluated.” Id. Robichau was prescribed
Vicodin, told to consult with his primary care physician, and discharged. (TR at 419.)
Two days later, on July 16, 2009, Robichau was seen at Family Medical Associates
(“FMA”), his primary care provider, per the emergency department doctor’s
4
recommendation. (TR at 809-810.) Plaintiff was told to take the muscle relaxants he
had been prescribed and to return if necessary. (TR at 810.)
On August 3, 2009, Robichau was seen at the FMA by Nurse Practitioner
Nancy Lyons. (TR at 581-583.) The purpose for his visit was assistance with stress
and difficulty sleeping as a result of an altercation he had at work in which Plaintiff
threatened to kill his general manager. (TR at 581.) Plaintiff believed he was
depressed and Ms. Lyons recorded his affect as anxious. (TR at 582.) Robichau
requested a refill of his Vicodin prescription. Id. He was diagnosed with general
anxiety and back pain. Id.
On September 28, 2009, Plaintiff was seen at the FMA by his primary care
physician, Phillip Burrer, M.D., for his ongoing anxiety. (TR at 577.) Robichau
complained of anxiety, depression, fatigue, stress, panic attacks, and insomnia. Id. Dr.
Burrer diagnosed Robichau with general anxiety, back pain, chronic pain syndrome,
fatigue, insomnia, and low back pain. (TR at 578.) Dr. Burrer noted that Plaintiff
appeared to be anxious and agitated. Id.
On November 30, 2009, Robichau presented at the Lahey ED with complaints
of rib pain on his right side incident to slipping off the hood of his truck and falling
onto the blade of a snow plow. (TR at 401.) X-rays were ordered, but Robichau
walked out before they could be administered. (TR at 404.) On December 2, 2009,
5
Plaintiff presented at the Northeast ED for the same injury and x-rays were taken. (TR
at 421.) The x-rays showed “clear lungs and no evidence of acute rib fracture.” Id.
Robichau was prescribed Percocet for the pain. Id. Plaintiff returned to the Northeast
ED on December 8, 2009 complaining of ongoing rib pain; he was prescribed
Percocet and Motrin to help with the pain. (TR at 423-424.) Plaintiff was seen by Dr.
Burrer as a follow-up to the fall from the hood of his truck on December 21, 2009.
(TR at 573-574.) He was diagnosed with rib pain, back pain, and chronic pain
syndrome. (TR at 574.)
In the winter of 2010 Plaintiff suffered from a variety of cold related ailments.
Over the course of January and February of that year, Robichau was seen at the FMA
several times for symptoms including sore throat, cough, and bronchitis. (TR at 567,
568, 571, 572.) On March 4, 2010, Plaintiff was seen at the Northeast ED for chest
pain, shortness of breath, fever, and cough. (TR at 425.) The treating physician noted
that Robichau continued to smoke and abuse alcohol, “8 glasses of wine per day at
least.” Id. Plaintiff left the emergency department against medical advice. (TR at 426.)
On May 25, 2010, Robichau was seen at the FMA by Nurse Practitioner
Katelynne Lyons (“NP Lyons”)4 for a follow-up to discuss his medications. (TR at
4
As there are two nurse practitioners with the surname Lyons, Katelynne Lyons will be
referred to as “NP Lyons.”
6
564.) Plaintiff stated that the Prozac was not helping anymore and that he wanted to
stop taking the pain medication for his back. Id. A physical examination revealed
decreased range of motion in Robichau’s neck and back. (TR at 565.) Plaintiff
returned to NP Lyons on July 6, 2010, complaining of stress as a result of purchasing
a new house and not being employed. (TR at 562.) Robichau believed that his
medications were insufficient and stated that he would like to see a psychiatrist. Id.
NP Lyons diagnosed Plaintiff with fatigue, stress reaction, insomnia, and grief
reaction. (TR at 563.)
Seven weeks later, on August 20, 2010, Robichau returned to NP Lyons for a
follow-up to his July 6 appointment. (TR at 559.) Plaintiff reported improvements
with the use of medication, and that he started seeing a psychiatrist. Id. Robichau
stated that he was unable to work because of the pain in his back, that his mental
stressors had improved, and that he recently applied for disability. Id. An examination
of Robichau revealed lumbar tenderness and spasm, but no neurological
abnormalities. (TR at 560.)
At an office visit on September 17, 2010, Robichau complained to Dr. Burrer
of pain in his right hip and side of his back as a result of an injury suffered while
working at a “roof job” three weeks prior.5 (TR at 556.) Dr. Burrer prescribed physical
5
This period of work was not recorded in Plaintiff’s Work Activity Report, nor was it
7
therapy. (TR at 558.) Two months later, on November 10, 2010, Robichau was seen
by NP Lyons for chronic low back pain and anxiety. (TR at 534.) The resulting
diagnosis confirmed as much. (TR at 535.)
On February 16, 2011, Plaintiff was evaluated by Michael Yoon, M.D., of the
FMA. (TR at 536.) Robichau presented to Dr. Yoon with tingling and numbness in
the left side of his face, pus in his left eye, headache, fatigue, and weakness in the left
arm and leg. Id. Dr. Yoon suspected that Robichau had suffered a stroke and advised
him to go the emergency department. (TR at 538.) On the same date, Plaintiff was
admitted to the Northeast ED for a suspected stroke. (TR at 432.) After diagnosing
him with a stroke and parasthesias of several extremities, the treating physicians
eventually discharged Robichau and recommended that he consult with an
ophthalmologist and follow up with Dr. Burrer. (TR at 433.) A history of alcohol
abuse was documented and cocaine was discovered in Plaintiff’s urine. Id. When
questioned about the positive drug test, Robichau stated that he was unsure how that
could be, as he did not use cocaine. Id.
Plaintiff followed up with Dr. Burrer on March 22, 2011 for ongoing symptoms
incident to the stroke including tingling in the left side of his head and face, pus in his
eye, and weakness in his left arm and leg. (TR at 599.) Dr. Burrer noted that Robichau
referenced at the hearing. (See TR at 48-83, 305.)
8
had presented to Dr. Yoon the prior month with similar symptoms; he also noted the
positive drug screen. Id. An Echocardiogram and MRI/A of the brain were conducted.
Id. In his psychiatric evaluation of Robichau, Dr. Burrer noted that Plaintiff might be
faking the symptoms. (TR at 600.) Robichau was seen at the Northeast ED for similar
symptoms on April 9, 2011. (TR at 434.) The treating physician documented the
inconsistency between Plaintiff’s denial of the use of alcohol or illicit drugs and his
positive test for cocaine and opiates. Id. Robichau was diagnosed with left facial
weakness and left-sided parasthesias. (TR at 435.) Plaintiff ultimately stated that he
wanted to leave; the treating physician, noting that Robichau was stable, acquiesced
and recommended that Plaintiff make an appointment to see a neurologist. Id.
The report of a May 23, 2011 office visit with Dr. Burrer reflects treatment for
symptoms consistent with sinusitis. (TR at 539.) Ten days later, on June 2, 2011,
Plaintiff returned to Dr. Burrer. (TR at 541.) Robichau complained of pain in his groin
as a result of physical exertion and blunt trauma. Id. Later in the month, on June 16,
2011, Plaintiff was seen by Nurse Practitioner Janice Thoen of the FMA for pain in
his lower back. (TR at 543-544.) Robichau stated that the pain was chronic, but had
been exacerbated incident to his mowing the lawn. (TR at 543.) An x-ray taken on
June 28, 2011 revealed, inter alia, “[a] slight compression abnormality, . . . slight
anterior wedging, . . . and minimal vascular abnormality.” (TR at 474, 630.) That same
9
day, Robichau was also seen by Dr. Burrer for a skin rash on his scalp. (TR at 545.)
Robichau returned to Dr. Burrer for a follow-up appointment for low back pain
on July 7, 2011. (TR at 547.) Robichau was assessed to have back pain and appeared
anxious and agitated. (TR at 548.) An MRI of Plaintiff’s back was taken on July 16,
2011. (TR at 476.) The MRI showed, inter alia, “[m]ild chronic and stable anterior
wedging of L2, [m]ild disc degeneration at L2-3 with slight disc bulging, and no disc
herniation or spinal stenosis.” (TR at 476-477.) When compared to a July 2008 MRI,
the results showed no significant change. (TR at 477.)
NP Lyons treated Robichau for chronic back pain on August 1, 2011. (TR at
614.) In similar fashion to his July 6 visit, Robichau complained of chronic back pain
that was exacerbated by mowing his lawn. Id. He stated that the pain radiated from his
back to his buttocks and thigh. (TR at 614-615.) The record of treatment noted
Robichau to have an agitated and anxious demeanor throughout the course of his
August 1 visit. Id.
Plaintiff returned to NP Lyons on August 31, 2011 to discuss disability and get
his medications refilled. (TR at 616.) Over the course of the visit Robichau reported
chronic pain with moderate intensity. Id. An echocardiogram and MRI were
performed and found to be negative. Id. A physical examination revealed decreased
range of motion with back flexion and extension. (TR at 617.) NP Lyons reported
10
that Robichau saw a neurologist, Harneet Singh, M.D. However, Plaintiff stated that
he was unable to secure an appointment at the MGH stroke center, as was
recommended by Dr. Singh. (TR at 616.)
Throughout October 2011, Plaintiff was treated at the FMA for urinary
problems. (TR at 618-623.) On November 30, 2011, Robichau was seen by Dr. Yoon.
(TR at 624.) Plaintiff reported facial episodes over the previous few weeks consisting
of numbness, tingling, headache, and loss of motor function. Id. Robichau was
referred back to Dr. Singh. (TR at 626.)
On December 3, 2011, Robichau was treated at the Lahey ED for pain localized
to his right flank. (TR at 689.) He was diagnosed with kidney stones and was
ultimately discharged after the pain level was decreased. (TR at 689-697.)
On January 10, 2012, NP Lyons saw Plaintiff as a follow-up for his seizure and
for treatment related to his history of sinusitis. (TR at 760.) An electroencephalogram
taken on January 26, 2012 was within the normal limits. (TR at 712.) The following
day, Robichau was seen by Ms. Thoen for complaints of low back pain. (TR at 713.)
Plaintiff was again assessed to have chronic low back pain. (TR at 714.)
At a February 3, 2012 visit to the FMA, Robichau was seen by NP Lyons for
low back pain and the completion of his disability forms. (TR at 715.) Plaintiff
presented with a limp, limited range of motion, and an anxious and agitated demeanor.
11
(TR at 716.) Robichau returned for a follow-up with NP Lyons on February 17, 2012.
(TR at 717.) The record of treatment noted ongoing complaints of facial droop, denial
of any recent head trauma, and that Plaintiff started seeing a neurologist. Id. NP
Lyons found the neurologist’s tests to be negative. Id.
On March 30, 2012, Plaintiff was seen by NP Lyons for a follow-up
appointment for his kidney stones and generalized anxiety. (TR at 728.) Robichau
stated that the Prozac was not treating his anxiety as effectively as it had previously,
and he wanted to increase his medication or try something different. Id. NP Lyons
determined his psychiatric state to be within the normal ranges and prescribed
Wellbutrin for his depression and anxiety. (TR at 729.)
On May 29, 2012, Plaintiff was sent to the Northeast ED from jail for pain and
swelling in his left elbow from what appeared to be a bug bite. (TR at 730-735.)
Robichau was treated and returned to jail. Id. On September 17, 2012, Robichau was
seen at the FMA by Nurse Practitioner Jarra Carney.6 (TR at 779-781.) Plaintiff stated
that he spent the previous five months at Middleton Jail and had been without his
medication for the entirety of his stay. Id. Robichau was seeking refills for all of his
6
Ms. Carney is supervised by Dr. Yoon. (TR at 779-781.) Dr. Yoon co-signed the September
17 report. See id.
12
medications. Id. Ms. Carney called the Middleton Jail6 infirmary and was informed
that Plaintiff had been weaned off all narcotics over the course of his incarceration.
(TR at 780.) The infirmary told Ms. Carney that Robichau had done well taking
Motrin and did not exhibit any signs of uncontrolled pain.
Id.
A physical
examination revealed “normal gait; normal range of motion of all major muscle
groups; pain with range of motion: back in flexion.” Id.
On September 21, 2012, Plaintiff began treatment with Susan Rudman, Ed. D.,
a licensed psychologist. (TR at 861.) According to a letter authored by Dr. Rudman,
she saw Robichau regularly through June 10, 2013. Id. Dr. Rudman refused to provide
her records of treatment for Plaintiff. See id.
Plaintiff’s first recorded medical visit in 2013 occurred on February 6th. (TR
at 836.) Robichau presented for a consultation, per his primary care physician’s
request, with Sara Lee, M.D., of the North Shore Physicians Group. Id. Dr. Lee
conducted a physical examination and observed Plaintiff to walk with an antalgic gait,
so an MRI was ordered. (TR at 837.) The MRI, administered April 10, 2013, revealed,
inter alia, “[m]ild to moderate central canal stenosis, . . . mild facet arthopathy, . . .
6
There appears to be a discrepancy regarding the name of the institution in which Robichau
was housed for the period of his incarceration. Ms. Carney initially refers to the institution as
“Middleton Jail” on page 1 of her treatment report, but subsequently refers to it as “Middlesex
County Correction Facility” on page 2. (See TR at 779-780.)
13
[m]ild diffuse degenerative disc disease, multilevel small disc bulges, . . . mild
multilevel foraminal narrowing, . . . and [m]ild exaggerated kyphotic angulation . . .
.” (TR at 838-839.)
On April 30, 2013, Robichau was seen for chronic back pain by Navid Mahooti,
M.D. (TR at 845.) Dr. Mahooti observed that Plaintiff presented with a cane to
ambulate and moved around frequently during the visit. (TR at 846.) Having seen
Robichau on two previous occasions, Dr. Mahooti compared his demeanor to his
previous visits and noted that Plaintiff appeared less comfortable on April 30.7 Id.
Plaintiff was seen by Dr. Lee for a follow-up to review his April 10, 2013 MRI
results on June 11, 2013. (TR at 835, 838-839.) Dr. Lee opined that there was “no
significant central stenosis at any level, . . . there [were] multilevel degenerative
changes that were contributing to his back pain, . . . and there was disc ostephyte to
the left of L4-5 . . . .” Id. Robichau was referred for a surgical consultation. Id.
2. Medical Opinions
On August 22, 2011, Jane Mathews, M.D., an advising physician to the
Disability Determination Services, found Plaintiff capable of performing light work
with certain limitations. (TR at 91-92.) Dr. Mathews concluded that Robichau was not
7
Dr. Mahooti’s two preceding appointments with Robichau are not contained within the
administrative record.
14
disabled. Id. Two weeks later, on September 6, 2011, Stanley Rusnak, ED. D, also
opining for the Disability Determination Services, examined Plaintiff. (TR at 549553.) Dr. Rusnak concluded that Robichau had a mood disorder, personality disorder,
back pain, arthritis, left arm weakness, and a Global Assessment Functioning
(“GAF”)8 score of 50. Id.
On September 26, 2011, Eugene Fierman, M.D., an advising psychiatrist to the
Disability Determination Services, determined that Robichau was able to perform light
unskilled work. (TR at 96.) On January 20, 2012, Sandra Diaz, Ph.D, an advising
psychologist to the Disability Determination Services examining Robichau’s disability
status on reconsideration, concurred with Dr. Fierman’s conclusion that Plaintiff is not
disabled. (TR at 124-126.)
Henry Astarjian, M.D., an advising physician to the Disability Determination
Services, reconsidered Plaintiff’s physical status on January 24, 2012. (TR at 124.) Dr.
Astarjian’s opinion as to Plaintiff’s physical status was in line with Dr. Mathews’
initial conclusion, with the only differences being Dr. Astarjian determined that
Robichau could only stand for four hours in an eight-hour day, could climb
8
“The GAF scale ranges from zero to 100 and [c]onsider[s] psychological, social, and
occupational functioning on a hypothetical continuum of mental health-illness.” Social Security
Claims and Procedures § 8:137 (6th ed.) (alterations in original) (internal citation and quotation
omitted). “A GAF of 41–50 indicates that the individual has [s]erious symptoms . . . OR any serious
impairment in social, occupational, or school functioning . . . .” Id.
15
ramps/stairs occasionally, could never climb ropes and ladders, and should avoid
concentrated exposure to extreme temperatures, whereas Dr. Mathews found he could
stand for six hours, climb ramps/stairs frequently, climb ropes and ladders
occasionally, and was not limited in his exposure to temperatures. (Compare TR at 91
with TR at 122.) Both physicians ultimately concluded that Robichau was not
disabled. (TR at 96, 128.)
On August 17, 2012, Dr. Yoon completed a Multiple Impairment Questionnaire
(“MIQ”) on Plaintiff’s behalf. (TR at 740-748.) Dr. Yoon diagnosed Robichau with
chronic back pain rated at 5 out of 10, depression, anxiety, and kidney stones. (TR at
741.) It was Dr. Yoon’s opinion that Robichau could sit for one hour in an eight-hour
workday and stand for four in the same period, frequently lift up to ten pounds,
occasionally carry ten to twenty pounds, would need to take unscheduled breaks every
hour, and would be absent more than three times per month. Id.
On April 30, 2013, Dr. Mahooti completed a MIQ for Robichau. (TR at 852860.) Dr. Mahooti reported that Plaintiff walked with an antalgic gait, had pain upon
palpation, was restricted in his range of motion, and walked with a cane. (TR at 852.)
With respect to Plaintiff’s ability to perform over the course of an eight-hour work
day, Dr. Mahooti reported that Robichau could sit for five hours and stand/walk for
three hours per day. (TR at 855.) Plaintiff was given a prognosis of “fair.” (TR at
16
852.)
Opining as to Robichau’s mental condition, Dr. Rudman completed a
Psychiatric Impairment Questionnaire on May13, 2013. (TR at 821-828.) She stated
that Plaintiff’s current GAF was 44 and the lowest it had been in the past year was 40.
(TR at 821.) Dr. Rudman’s prognosis for Robichau was “limited to poor” and she
found him to “markedly limited” in his ability to perform in a workplace setting. (TR
at 821, 823.)
3. Hearing Testimony
At the hearing, Plaintiff stated that he suffered from chronic low back pain,
numbness on the left side of his body as a result of a stroke, anxiety, and depression.
(TR at 57-58.) Robichau described the chronic back pain as sharp and aggravating.
(TR at 61.) Addressing his daily limitations due to his conditions, Robichau testified
that he usually only slept between four and five hours per night because of the pain
in his left leg; if medicated, he could sit for between two and two and one half hours
before needing to walk around; and could not lift more than ten pounds with either
hand. (TR at 62-64, 66-67.) Plaintiff stated that to cope with his physical ailments he
walked with the assistance of a cane, took hot showers, and would sit or lay prone for
extended periods. (TR at 64-65.) With respect to his psychological maladies,
Robichau explained that his state of depression resulted in a lack of motivation, no
17
desire to interact with others, and a preference to remain bedridden for two to three
day periods. (TR at 70.)
III. THE STANDARD OF REVIEW
Title 42 U.S.C. § 405(g) provides, in relevant part:
Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to
which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a
civil action commenced within sixty days after the mailing
to him of notice of such decision or within such further
time as the Commissioner of Social Security may allow . .
. . The court shall have power to enter, upon the pleadings
and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner
of Social Security, with or without remanding the cause for
a rehearing. The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive . . . .
The court’s role in reviewing a decision of the Commissioner under this statute is
circumscribed:
We must uphold a denial of social security disability
benefits unless ‘the Secretary has committed a legal or
factual error in evaluating a particular claim.’ Sullivan v.
Hudson, 490 U.S. 877, 885, 109 S. Ct. 2248, 2254, 104 L.
Ed. 2d 941 (1989). The Secretary’s findings of fact are
conclusive if supported by substantial evidence. See 42
U.S.C. § 405(g); see also Richardson v. Perales, 402 U.S.
389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971).
Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996);
18
see Reyes Robles v. Finch, 409 F.2d 84, 86 (1st Cir. 1969) (“And as to the scope of
court review, ‘substantial evidence’ is a stringent limitation”).
The Supreme Court has defined “substantial evidence” to mean “‘more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see Irlanda
Ortiz v. Secretary of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). It has
been explained that:
In reviewing the record for substantial evidence, we are to
keep in mind that ‘issues of credibility and the drawing of
permissible inference from evidentiary facts are the prime
responsibility of the Secretary.’ The Secretary may (and,
under his regulations, must) take medical evidence. But the
resolution of conflicts in the evidence and the determination
of the ultimate question of disability is for him, not for the
doctors or for the courts. We must uphold the Secretary’s
findings in this case if a reasonable mind, reviewing the
record as a whole, could accept it as adequate to support his
conclusion.
Lizotte v. Secretary of Health & Human Servs., 654 F.2d 127, 128 (1st Cir. 1981)
(quoting Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st
Cir. 1981)). In other words, if supported by substantial evidence, the Commissioner’s
decision must be upheld even if the evidence could also arguably admit to a different
interpretation and result. See Ward v. Commissioner of Social Sec., 211 F.3d 652, 655
19
(1st Cir. 2000); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
Finally,
Even in the presence of substantial evidence, however, the
Court may review conclusions of law, Slessinger v. Sec’y
of Health & Human Servs., 835 F.2d 937, 939 (1st Cir.
1987) (per curiam) (citing Thompson v. Harris, 504 F.
Supp. 653, 654 [(D. Mass.1980)]), and invalidate findings
of fact that are ‘derived by ignoring evidence, misapplying
the law, or judging matters entrusted to experts,’ Nguyen v.
Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
Musto v. Halter, 135 F. Supp.2d 220, 225 (D. Mass. 2001).
IV. DISCUSSION
In order to qualify for SSDI or SSI benefits, a claimant must prove that he/she
is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
12 months.” Title 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In making the decision
to deny Plaintiff’s request for disability benefits, the ALJ conducted the familiar five
step evaluation process to determine whether an adult is disabled. See 20 C.F.R. §§
404.1520(a), 416.920(a); Goodermote v. Secretary of Health & Human Servs., 690
F.2d 5, 6-7 (1st Cir. 1982); Veiga v. Colvin, 5 F. Supp.3d 169, 175 (D. Mass. 2014).
The ALJ concluded that: 1) Robichau had not engaged in substantial gainful activity
20
since June 20, 2009, the alleged onset date;9 2) Robichau had severe impairments, to
wit, low back pain secondary to a slight L2 compression abnormality and degenerative
disc disease status post facet blocks, nerve root blocks, depression, and anxiety; 3)
Robichau does not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1; 4) Robichau retained the following residual functional
capacity:10 he can lift twenty pounds occasionally and ten pounds frequently; he can
stand and/or walk for four hours total over the course of an eight-hour workday; he
can sit for six hours total over an eight-hour workday; he can occasionally climb
ramps and stairs with a need to avoid climbing ropes, ladders, and scaffolds; he can
occasionally balance, stoop, kneel, crouch, and crawl; he needs to avoid concentrated
exposure to extreme cold, heat, humidity, vibrations, and hazards; he can understand
and remember simple instructions; he can concentrate on simple tasks in two-hour
increments over an eight-hour workday; he can interact appropriately with coworkers
and supervisors; and he can adapt to changes in work settings; 5) Robichau is unable
9
Robichau only made $896.00 for his brief work as a roofer in 2011. (TR at 56.) Therefore,
this work did not rise to the level of substantial gainful activity. See 20 C.F.R. § 404.1574 (2006).
10
A Social Security claimant’s residual functional capacity (“RFC”) is “an assessment of an
individual’s ability to do sustained work-related physical and mental activities in a work setting on
a regular continuing basis,” despite his/her mental and physical limitations. SSR 96-8p, 1996 WL
374184, at *1 (S.S.A. July 2, 1996); see 20 C.F.R. §§ 416.920(e), 416.945, 404.1545(a)(1).
21
to perform any past relevant work, but is able to perform jobs that exist in significant
numbers in the national economy; and 6) Robichau has not been under disability from
June 20, 2009 through July 12, 2012, the date of the ALJ’s decision. (TR at 29-40.)
A. Weight of Medical Opinions
Robichau takes issue with the ALJ’s decision in several respects. First, he
contends that the ALJ failed to weigh properly the medical evidence. (#13 at 13.) It
is Robichau’s position that Drs. Yoon and Mahooti’s opinions should have been given
controlling weight, or, in the alternative, that the ALJ failed to evaluate properly their
opinions with respect to the factors set forth in 20 C.F.R. §§ 404.1527 and 416.927.
(#13 at 13-19.)
The opinion testimony of the treating physician must be
given controlling weight if it is well-supported and not
inconsistent with the other substantial evidence on the
record. 20 C.F.R. § 404.1527(d)(2); see also Clayton v.
Astrue, No. 09–10261–DPW, 2010 WL 723780, at *6 (D.
Mass. Feb.16, 2010) (applying the consistency standards of
20 C.F.R. § 404.1527(d)(2)). This means that while there is
a general presumption of deference to the treating
physician’s opinion, the ALJ can choose not to grant the
opinion controlling weight if that opinion is inconsistent
with other substantial evidence in the record. Green v.
Astrue, 588 F. Supp.2d 147, 154 (D. Mass. 2008).
Decisions regarding inconsistencies between a treating
physician’s opinion and other evidence in the record are for
the ALJ, and not the Court, to resolve. Costa v. Astrue, 565
F. Supp.2d 265, 271 (D. Mass. 2008) (citing Rodriguez v.
Sec'y of Health and Human Servs., 647 F.2d 218, 222 (1st
Cir.1981)).
22
Abubakar v. Astrue, No. 11-cv-10456, 2012 WL 957623, at *8 (D. Mass. Mar. 21,
2012). Robichau argues that the ALJ erred by rejecting the opinions of Drs. Yoon and
Mahooti, Plaintiff’s treating physicians, with respect to their findings as to Robichau’s
physical limitations. (#13 at 15.)
The record is clear that the ALJ did not reject either opinion, but that he gave
them less weight based on their inconsistencies with the record as a whole. See 20
C.F.R. § 404.1527(c)(2) (“If we find that a treating source’s opinion on the issue(s)
of the nature and severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in your case record, we will give it controlling weight”);
Frenche v. Colvin, No. 14-cv-263, 2015 WL 4407940, at *3 (D. R.I. July 20, 2015)
(“The ALJ may discount a treating physician’s opinion or report regarding an inability
to work if it is unsupported by objective medical evidence or is wholly conclusory”)
(citing Keating v. Sec'y of Health and Human Servs., 848 F.2d 271, 275–276 (1st
Cir.1988)). Such a decision is for the ALJ and the Court will confine its examination
to the evidence and reasoning relied upon to reach such a conclusion. See McNelley
v. Colvin, No. 14-cv-14342, 2015 WL 3454721, at *4 (D. Mass. May 29, 2015) (“If
the treating physician’s opinion is inconsistent with other evidence in the record, the
conflict is for the ALJ, not the court, to resolve. The ALJ’s decision must nevertheless
23
“contain specific reasons for the weight given to the treating source's medical opinion,
supported by the evidence in the case record.”) (citing and quoting Rodriguez v. Sec'y
of Health and Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) (internal quotation
omitted) and SSR 96–2p, 1996 WL 374188, at *5 (July 2, 1996)). Thus, reversal or
remand is only warranted if the ALJ’s decision was factually unfounded or devoid of
sufficient justification. In the instant case, the ALJ’s decision was adequately
supported.
1. Treating Physicians
The ALJ chose to give Dr. Yoon’s opinion little weight for three articulated
reasons. First, the ALJ found “Dr. Yoon’s disabling limitations [to be] inconsistent
with the diagnostic evidence of record.” (TR at 37.) Second, Robichau “does not
present clinically with any focal neurological deficits.” (TR at 38.) Third, “the
limitations in Dr. Yoon’s opinion are more restrictive than the claimant’s own
testimony regarding his limitations.” Id.
The ALJ included in his decision a detailed review of Robichau’s medical
history beginning in October 2007 and continuing through the date of hearing, June
18, 2013. (See TR at 32-37.) As part of his recitation of the medical record, the ALJ
examined Robichau’s MRI reports and noted their findings of “mild” and “stable”
changes. (See TR at 33-34, 36.) Further analysis of the MRI reports can be seen in
24
the ALJ’s analysis of Plaintiff’s credibility. (See TR at 38.)
Plaintiff’s argument that “the MRIs in the record confirmed spinal
abnormalities” is not a conclusion contrary to that of the ALJ. The ALJ accounted for
these abnormalities in Robichau’s RFC. (See TR at 39-40) (finding Robichau unable
to perform any of his past work and limiting his RFC to light unskilled work). It is
Plaintiff’s position that the evidence contained in the record warrants a finding of
greater limitation than what was determined by the ALJ. A review of the ALJ’s
decision shows that the ALJ considered all of the medical evidence before
determining Robichau’s RFC.
Robichau does not contest the ALJ’s second justification for discounting Dr.
Yoon’s opinion; Robichau does not argue that he has focal neurological deficits. (See
#13.) With respect to the third justification for the limited weight given to Dr. Yoon’s
opinion, the ALJ noted the inconsistency between Dr. Yoon’s opinion and Robichau’s
testimony, finding “[f]or example, Dr. Yoon opined that the claimant is only able to
sit for one hour in total in an eight-hour workday; whereas, the claimant testified that
he is able to sit for two to two and one half hours at a time.” (TR at 38.) Plaintiff takes
issue with the ALJ’s reliance on such an example, arguing that Dr. Yoon’s opinion
was in response to Robichau’s ability to perform in a workplace, while Plaintiff’s
testimony was in response to a general unqualified question. (#13 at 15-16.) The ALJ
25
was present at the hearing and was apprised of the context within which Robichau’s
answers were given. See Frustaglia v. Sec'y of Health and Human Servs., 829 F.2d
192, 195 (1st Cir.1987) (citing DaRosa v. Sec'y of Health and Human Servs., 803 F.2d
24, 26 (1st Cir.1986)) (finding that it is for the ALJ to determine how testimony fits
in with the rest of the evidence and deference must be given to those considerations).
Further, the ALJ found Dr. Yoon’s opinion to be inconsistent with Dr. Fierman’s
opinion that Robichau could sit for six hours in an eight-hour day, which the ALJ
found to be consistent with the record as a whole. (TR at 38; compare TR at 741-748
with TR at 90-96.)
Based on the medical record before the Court, Dr. Yoon saw Plaintiff on four
occasions, all of which occurred between February of 2011 and September of 2012:
February 16, 2011, October 19, 2011, November 30, 2011, and September 17, 2012.11
(TR at 536-539, 620-629, 679-684, 779-781.) None of the appointments where Dr.
Yoon is listed as the provider were in response to Robichau’s chronic pain. See id. The
three appointments were for a sinus infection, urinary track infection, and a follow up
to a potential stroke. Id. Such limited interaction with Plaintiff, the majority of which
11
On September 17, 2012, Robichau was seen at the FMA. (TR at 779.) The provider is listed
as Ms. Carney, with her supervisor being Dr. Yoon. Id. Both Ms. Carney and Dr. Yoon
electronically signed the report. (TR at 781.) Ms. Carney electronically signed on September 17,
while Dr. Yoon’s signature was recorded on the following day. Id. The ALJ cites this visit as an
appointment with Dr. Yoon, while Plaintiff reports this to be a visit with Ms. Carney. (See TR at 36;
#13 at 7.) For the sake of consistency, the visit will be credited to Dr. Yoon.
26
is not germane to the issues here, cuts against Dr. Yoon’s standing as a treating
physician with a better understanding of Plaintiff’s ongoing issues than a nonexamining doctor.12
Dr. Mahooti’s contact with Plaintiff was limited to three visits. Dr. Mahooti
described Robichau as “new to [him].” (TR at 859.) In Dr. Mahooti’s MIQ, several
of the questions are answered with “I don’t know” or “possibly yes.” (TR at 852860.) Dr. Mahooti conceded that to answer questions pertaining to Robichau’s ability
to lift and carry, he “would be guessing.” (TR at 856.) Dr. Mahooti concluded the
questionnaire by recommending that Dr. Lee would be better suited to answer the
functional questionnaire. (TR at 859.) Such an obvious lack of interaction with
Robichau and limited knowledge of his medical history significantly discounts Dr.
Mahooti’s standing a treating physician. As was the case with Dr. Yoon’s opinion, the
ALJ gave less to weight to Dr. Mahooti’s opinion to the extent that it was inconsistent
12
The treating source rule provides
that the ALJ should give ‘more weight’ to the opinions of treating
physicians because ‘these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of
[a claimant’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual
examinations.’ 20 C.F.R. § 404.1527(c)(2); 416.927(c)(2).
Bourinot v. Colvin, – F. Supp.3d –, 2015 WL 1456183, at *11 (D. Mass. 2015) (alterations in
original).
27
with the diagnostic evidence of record. As stated previously, the ALJ carefully
examined and set forth Robichau’s medical history, including diagnostic evidence, in
his decision.
Based on the entirety of the medical records, treatment notes, and Plaintiff’s
description of his abilities, it was not unreasonable for the ALJ to conclude that the
questionnaires submitted by Drs. Yoon and Mahooti exaggerated the extent of
Robichau’s physical limitations. In support of his findings, the ALJ gave great weight
to Dr. Astarjian’s opinion. (TR at 37.) Notably, the ALJ gave less weight to Dr.
Matthews, also opining for the DDS, to the extent that she found Robichau to have
greater standing and climbing ability and fewer environmental limitations than did Dr.
Astarjian. “The ALJ may rely on the opinions of non-examining sources to determine
a claimant’s RFC and need not to give greater weight to the opinions of treating
physicians.” Crossley v. Colvin, No. 13-cv-11427, 2015 WL 4512643, at *4 (D. Mass.
July 24, 2015) (citing Arroyo v. Sec'y of Health & Human Servs., 932 F.2d 82, 89 (1st
Cir. 1991)). The ALJ concluded that Robichau was capable of light work. (TR at 37.)
“Where, as here, treating source opinions are inconsistent with other substantial
evidence in the record, the SSA regulations do not require an ALJ to give the opinions
controlling weight.” Bourinot, – F. Supp.3d –, 2015 WL 1456183, at *12 (citing
Arruda v. Barnhart, 314 F. Supp.2d 52, 72 (D. Mass. 2004); 20 C.F.R. §
28
404.1527(c)(3), (4); 416.927(c)(3), (4); SSR 96–2p, 1996 WL 374188, at *2); see
Rodriguez, 647 F.2d at 222 (“[T]he resolution of conflicts in the evidence . . . is for
[the ALJ], not for the doctors or for the courts.”); McNelley, 2015 WL 3454721, at *5
(“Ultimately, the ALJ was within his discretion in giving small weight to [the treating
physician’s] opinion in light of other medical evidence in the record supporting a
finding of lesser impairment.”) (citing Rodriguez, 647 F.2d at 222). There is
substantial evidence to support the ALJ’s determination that the medical opinions of
Drs. Yoon and Mahooti were not controlling.
2. Evaluation of Opinions
Plaintiff’s alternative objection to the ALJ’s evaluation of Drs. Yoon and
Mahooti’s opinions – that the ALJ failed to consider the factors listed in 20 C.F.R. §§
404.1527 and 416.927 – is not persuasive. (#13 at 17.) The factors set forth in 20
C.F.R. §§ 404.1527 and 416.927 for evaluating a non-controlling treating source’s
opinion are as follows: 1) length of treatment; 2) nature and extent of relationship; 3)
supportability; 4) consistency; 5) specialization; and 6) other factors raised by the
claimant. 20 C.F.R. §§ 404.1527(c)(2-6) and 416.927(c)(2-6). As described above, the
ALJ’s discussion of Robichau’s treatment notes, imaging results, and other evidence
in the record explicitly considers factors three and four: the degree to which the
opinion is supported by relevant evidence and the consistency of the opinion with the
29
record as a whole. 20 C.F.R. §§ 404.1527(c)(3-4) and 416.927(c)(3-4). The decision
also recounts Plaintiff’s medical treatment history in detail, including individual
appointments with Drs. Yoon and Mahooti. Implicit in this review is the ALJ’s
consideration of the remaining factors: the treatment relationship between the claimant
and physician, the practice specialty of the physician, and “other” relevant factors.
Title 20 C.F.R. §§ 404.1527(c)(1-2), (5-6) and 416.927(c)(1-2), (5-6); see Bourinot,
– F. Supp.3d – , 2015 WL 1456183, at *13.
Plaintiff’s argument that “[t]he ALJ fail[ed] to weigh the doctors’ opinions
against the relevant factors” is unfounded. “The regulations do not require an ALJ to
expressly state how each factor was considered, only that the decision provide ‘good
reasons’ for the weight given to a treating source opinion.” Bourinot, – F. Supp.3d –,
2015 WL 1456183, at *13 (citing 20 C.F.R. §§ 416.927(c)(2) and 404.1527(c)(2)).
The ALJ’s decision contains a thorough analysis and is supported by both medical
opinion and diagnostic evidence. His reasons for discounting the opinions of Drs.
Yoon and Mahooti are sufficient to apprise both Plaintiff and the Court of how each
treating source opinion was evaluated. “Remand is not required where, as here, ‘it can
be ascertained from the entire record and the ALJ’s opinion that the ALJ applied the
substance of the treating physician rule.’” Bourinot, – F. Supp.3d –, 2015 WL
1456183, at *13 (quoting Botta v. Barnhart, 475 F. Supp.2d 174, 188 (E.D. N.Y.
30
2007) (internal citation omitted)).
3. Non-treating Physicians
Despite the ALJ’s in-depth explanation for finding the non-treating physicians’
opinions more consistent with the record as a whole, Robichau argues that such a
conclusion was reached in error.
a. Completeness of the Record Upon Review
While Drs. Astarjian, Fierman, and Diaz did not personally evaluate Robichau,
they reviewed the medical record before concluding that Plaintiff was not disabled.
Plaintiff takes issue with the fact that Dr. Astarjian only reviewed Robichau’s records
through the date of his report, January 24, 2011.13 (#13 at 16.)
It is undisputed that the ALJ may rely on reports from
non-treating physicians when they are more consistent with
the record than reports provided by treating physicians. See
Berrios–Lopez v. Sec’y of Health & Human Servs., 951 F.2d
427, 431 (1st Cir.1991); DiVirgilio v. Apfel, 21 F. Supp.2d
76, 80–81 (D. Mass.1998). Nevertheless, it is well
established that medical evidence that is too far removed
from the relevant time period cannot constitute substantial
evidence if more recent records establish a significant
worsening of the claimant’s condition. See Abubakar v.
Astrue, No. 11–cv–10456–DJC, 2012 WL 957623, at *12
(D. Mass. Mar.21, 2012), and cases cited. On the other hand,
the ALJ may rely on the older evidence where it remains
13
Plaintiff asserts that Dr. Astarjian reviewed the medical record “through February 2011,"
which is a factual impossibility since Dr. Astarjian’s report was completed on January 24, 2011. (See
#13 at 16; TR at 124.)
31
consistent with the current condition. Id.; Ferland v. Astrue,
No. 11–cv–123–SM, 2011 WL 5199989, at *4 (D. N.H.
Oct.31, 2011).
Nelson v. Colvin, No. 14-cv-10254, 2015 WL 1387864, at *12 (D. Mass. Mar. 25,
2015). The record does not support, and Plaintiff has not argued, that Robichau’s
condition significantly worsened in the sixteen months between January 24, 2011, the
date Dr. Astarjian completed his assessment of Robichau, and the June 18, 2013, date
of hearing. (TR at 48, 124.) A January 26, 2012 electroencephalogram was within the
normal limits. (TR at 712.) On June 11, 2013, a week prior to the hearing, Dr. Lee,
examining Robichau’s April 10, 2013 MRI, concluded that there was no significant
central stenosis at any level in Plaintiff’s spine and that the symptoms have been
chronic since 2006. (TR at 835.)
The assertion that Dr. Astarjian’s opinion was based on “outdated records” falls
flat when the MIQ of Dr. Yoon is examined. (See #13 at 16.) Robichau noted Dr.
Yoon’s reliance on MRI findings as a foundation for his opinion; the MRI in question
was administered in 2007.14 (#13 at 15; TR at 741.) When the remainder of Dr. Yoon’s
listed supporting clinical findings are examined, it is clear that they range from 20072009. (See TR at 741.) Thus, it would be inapposite to find Dr. Yoon’s reliance on
14
Defendant notes that the “2007 MRI,” referenced in Dr. Yoon’s MIQ, is not contained in the
record. (#23 at 12 n. 9; see TR at 741.) It is Defendant’s position that Dr. Yoon intended to reference
the 2008 MRI. Id.
32
“outdated” diagnostic imaging appropriate, yet discredit Dr. Astarjian’s under the same
theory. Such an argument need not be decided, as Plaintiff has not demonstrated
substantial change in his condition post January 2011, and the evidence contained
within the record does not reflect such a deterioration. Dr. Astarjian’s opinion was an
appropriate source upon which the ALJ could rely in finding Robichau not disabled.15
4. Treating Psychologist
Robichau argues that the ALJ “failed to give good reasons for rejecting the
opinions [sic] from the treating psychologist.” (#13 at 18.) While the ALJ gave less
weight to Dr. Rudman, Plaintiff’s treating psychologist, he did not reject her opinion
as Robichau asserts. Additionally, the ALJ provided sufficient reasoning for
discounting the opinion: 1) the record does not contain any of Dr. Rudman’s treatment
notes; and 2) Dr. Rudman’s disabling concentration limitations were inconsistent with
Plaintiff’s own statements.16 (TR at 38.)
15
Robichau does not object to the opinions of Drs. Fierman and Diaz beyond their status as
non-treating physicians, which will be addressed below.
16
The statements in question, appearing on page six of Robichau’s Social Security
Administration Function Report, are as follows:
Q: For how long can you pay attention?
A: Quite a long time.
Q: Do you finish what you start? (For example, a conversation,
chores, reading, watching a movie)
A: Yes.
33
It is Plaintiff’s position that the ALJ was required to obtain Dr. Rudman’s
records or express his concern for their absence. (#13 at 18.) Robichau cites Bamford
v. Astrue, No. 12-10575, 2013 WL 870228, at *8 (D. Mass. Feb. 14, 2013) for the
proposition that the ALJ “has a duty to develop the record independent of any duty on
the claimant to present evidence . . . whenever the record ‘does not contain all the
necessary information . . .’.” (See #13 at 18.) However, Robichau’s reliance on
Bamford is misplaced and the quoted portion of text is taken out of context. The
Bamford court required such action
only when the ALJ cannot determine the basis of a treating
physician’s opinion from the record. Accordingly, an ALJ
must contact the medical source only when there is
ambiguity in the opinion of the treating physician, not when
evaluations are inconsistent with other information in the
record or when the ALJ finds the treating physician’s
opinion unpersuasive.
Bamford, No. 12-10575, 2013 WL 870228, at *8 (quoting Abubakar, 2012 WL
957623, at *11) (internal quotation omitted) (emphasis added). The basis of Dr.
Rudman’s opinion is evidenced in her Psychological Impairment Questionnaire; she
Q: How well do you follow written instructions? (For example a
recipe)
A: Very well.
Q: How well do you follow spoken instructions?
A: Pretty good.
(TR at 320.)
34
stated, under the laboratory and diagnostic support section, that her opinion is based
on “self reports [] [and] some observation.” The ALJ provided both a detailed
description of Dr. Rudman’s opinion and a thorough justification for his decision to
discredit it. (See TR at 36, 38.) Nothing further is required.
Robichau also takes issue with the ALJ’s second justification for discrediting Dr.
Rudman’s opinion: the inconsistencies between her opinion as to Plaintiff’s ability to
concentrate and Plaintiff’s own statements on the subject. (#13 at 19.) Robichau
contends that his own written statements were “incredibly vague” and “unclear,” and
therefore were insufficient support for the ALJ’s conclusion. Id. The standard with
respect to the evaluation of evidence as it relates to a treating physician’s opinion bears
repeating: “Decisions regarding inconsistencies between a treating physician’s opinion
and other evidence in the record are for the ALJ, and not the Court, to resolve.”
Abubakar, No. 11-cv-10456, 2012 WL 957623, at *8 (internal citations omitted).
In the alternative, Plaintiff takes the position that the factors enumerated in 20
C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2), as they relate to Dr. Rudman’s opinion,
suggest that deference should be afforded to her as a treating physician. (#13 at 19.)
With respect to Dr. Rudman, Robichau does not suggest that the ALJ failed to consider
the factors in his analysis, but rather came to the incorrect conclusion. See id. As he
did regarding the opinions of Drs. Yoon, Mahooti, Astarjian, Fierman, and Diaz, the
35
ALJ provided sufficient explanation to apprise the Court and Plaintiff why he treated
Dr. Rudman’s findings as he did. Remand is not warranted. See Bourinot, No. 14-cv40016, 2015 WL 1456183, at *13.
B. Plaintiff’s Credibility
1. Limitations
Next, Robichau takes issue with the ALJ’s evaluation of Plaintiff’s credibility,
arguing that the determination was not supported by substantial evidence. (#13 at 1921.) Plaintiff contends that the ALJ’s conclusion – that Robichau’s testimony with
respect to his limitations exceeded what could reasonably be expected based on the
entirety of the record – is contradicted by the opinions of two treating experts. (#13 at
21.) Such an argument is nothing more than an attempt to reassert Plaintiff’s objection
to the ALJ’s findings with respect to the weight given to the treating physicians’
opinions, cloaked as an attack on the ALJ’s determination of credibility.
The assertion that the ALJ’s credibility determination was not supported by
substantial evidence is unpersuasive. “[T]he ALJ was not required to credit [the
claimant’s] testimony.” Del Rosario v. Colvin, No. 13-30017, 2014 WL 1338153, at
*7 (D. Mass. Mar. 31, 2014) (citing Bianchi v. Sec'y of Health and Human Servs., 764
F.2d 44, 45 (1st Cir.1985) (recognizing the established principle that the ALJ “is not
required to take the claimant’s assertions of pain at face value.”)); Tozier v. Astrue, No.
36
12-10359, 2013 WL 1282371, at *4 (D. Mass. Mar. 28, 2013); Tetreault v. Astrue, 865
F. Supp.2d 116, 126 (D. Mass. 2012) (An ALJ “is entitled to disbelieve subjective
complaints of disabling pain in the face of contrary medical evidence.”). Such a
decision must be supported by evidence:
The finding on the credibility of the individual’s statements
cannot be based on an intangible or intuitive notion about an
individual’s credibility. The reasons for the credibility
finding must be grounded in the evidence and articulated in
the determination or decision . . . .
The determination or decision must contain specific reasons
for the finding on credibility, supported by the evidence in
the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements
and the reasons for that weight.
SSR 96-7p, 1996 WL 374186, at *4. The ALJ must consider seven factors:
If, after evaluating the objective findings, the ALJ
determines that the claimant’s reports of pain are
significantly greater than what could be reasonably
anticipated from the objective evidence, the ALJ must then
consider other relevant information. Avery v. Sec’y of Health
& Human Servs., 797 F.2d 19, 23 (1st Cir. 1986).
Considerations capable of substantiating subjective
complaints of pain include evidence of: (1) the claimant’s
daily activities; (2) the location, duration, frequency, and
intensity of the pain; (3) precipitating and aggravating
factors; (4) the type, dosage, effectiveness and side effects
of any medication taken to alleviate the pain or other
symptoms; (5) treatment, other than medication, received for
relief of pain; (6) any other measures used to relieve pain or
other symptoms; and (7) any other factors relating to
37
claimant's functional limitations and restrictions attributable
to pain. See id. at 22; 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii).
Cookson v. Colvin, –F. Supp.3d–, 2015 WL 4006172, at *10 (D. R.I. July 1, 2015).
While the ALJ is required to consider all of the Avery factors, “an ALJ is not
required to discuss every factor in its decision.” Silvia v. Colvin, No. 13-11681, 2014
WL 4772210, at *6 (D. Mass. Sept. 22, 2014). The ALJ’s consideration of the Avery
factors can be seen throughout his decision, specifically in his analysis of Robichau’s
RFC. (See TR at 32-39.)
The Court may overturn an ALJ’s credibility determinations
only when it concludes that the ALJ has ignored evidence,
misapplied the law or judged medical matters that should be
left to experts. The Court may also remand cases when the
ALJ has provided insufficient explanations for findings or
has failed to consider relevant evidence.
Silvia, 2014 WL 4772210, at *7 (emphasis added). The ALJ’s decision partially to
discredit Robichau’s testimony was supported by substantial evidence.
2. Evaluation of Treatment and Medications
Robichau’s contention that the ALJ “erred by criticizing [] Robichau’s treatment
with medications and lack of prescription medications while he was in jail for four
months” is a mischaracterization of the ALJ’s factual analysis. The argument ignores
the deference afforded the ALJ’s findings of fact. Plaintiff’s support for his position
is limited to his own reports of pain. (See #13 at 21) (“after he was released, Mr.
38
Robichau reported constant pain . . .”). As explained in the preceding section, the ALJ
was well within his province to find Robichau not entirely credible with respect to the
intensity, persistence, and limiting effects of his symptoms.
The assertion that the ALJ “offered his own lay judgment of the severity of
[Plaintiff’s] symptoms” is flatly contradicted by the record of Plaintiff’s treatment. At
Robichau’s September 17, 2012 visit with Ms. Carney, Ms. Carney reported that she
“called the Middlesex County Correction Facility and spoke to the infirmary who
reports they weaned [Robichau] off all narcotics while in prison and he did well taking
Motrin [] and did not exhibit signs of uncontrolled pain.” (TR at 780.) The record from
the September 17th visit reflects that Ms. Carney concurred with the Jail’s treatment
of Robichau without the use of narcotics. See id. (“[b]ased on this [finding] we will
continue ot [sic] prescribe only Motrin[,] but will give him the option of following up
with a pain clinic.”) The ALJ cited to this report in his decision.17 (See TR at 38.)
The ALJ’s findings with respect to Robichau’s level of pain without the use of
narcotics are supported by substantial evidence. (See TR at 38-39.) Further, the finding
was but a single piece of the ALJ’s comprehensive analysis of the credibility of
Robichau’s testimony. In reaching his ultimate conclusion that Plaintiff was not
17
It should be noted that the ALJ refers to this report as an appointment with Dr. Yoon. (See
TR at 38.) As noted previously, Ms. Carney is listed as the provider on the report, while Dr. Yoon
is listed as the supervisor and co-signed the report. (See TR at 779-781.)
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credible to the extent that his testimony exceeded the ALJ’s findings, the ALJ
sufficiently analyzed the entirety of the record and provided justification for his
findings. There is no error.
V. CONCLUSION AND ORDER
For all the reasons stated, it is ORDERED that Plaintiff’s Motion For Judgment
On The Pleadings (#12) be, and the same hereby is, DENIED. It is FURTHER
ORDERED that Defendant’s Motion For An Order Affirming The Decision Of The
Commissioner (#22) be, and the same hereby is, ALLOWED. Judgment shall enter for
Defendant.
/s/ M. Page Kelley
M. Page Kelley
United States Magistrate Judge
September 2, 2015.
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