Lam v. Colvin

Filing 26

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. ORDER ON REPORT AND RECOMMENDATIONS Action on motion: ; denying 16 Motion for Order Reversing Decision of Commissioner; granting 20 Motion ; adopting Report and Recommendations re 25 Report and Recommendations. (Attachments: # 1 Report and Recommendations)(Caruso, Stephanie)

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 1 of 34

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARYANN LAM,
Plaintiff,

v.

CIVIL ACTION NO.
14-14179-NMG

CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
REPORT AND RECOMMENDATION RE:
DEFENDANT’S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
(DOCKET ENTRY # 20); PLAINTIFF’S MOTION TO REVERSE THE DECISION
OF THE COMMISSIONER (DOCKET ENTRY # 16)
June 20, 2016
BOWLER, U.S.M.J.
Pending before this court are cross motions by the parties,
plaintiff Maryann Lam (“plaintiff”) and defendant Carolyn W.
Colvin (“Commissioner”), Acting Commissioner of the Social
Security Administration.

(Docket Entry # 20).

Plaintiff seeks

to reverse the final decision of the Commissioner pursuant to 42
U.S.C. § 405(g) or remand this action to obtain vocational
testimony to address the occupational effect of plaintiff’s
nonexertional impairments.

(Docket Entry ## 16, 16-1).

Commissioner moves for an order to affirm the decision.
Entry # 20).

The
(Docket

After conducting a hearing on February 2, 2016,

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 2 of 34

this court took the motions (Docket Entry ## 16 & 20) under
advisement.
PROCEDURAL HISTORY
On November 17, 2011, plaintiff filed an application for a
period of disability and disability insurance benefits alleging
disability beginning on June 9, 2011.
19).

(Docket Entry # 9, Tr.

The Social Security Administration (“SSA”) denied the

application and again on reconsideration.
Tr. 19).

Upon reconsideration, the SSA denied plaintiff’s

application again on August 28, 2012.
19).

(Docket Entry # 9,

(Docket Entry # 9, Tr.

Following the denials, plaintiff filed a written request

for a hearing in front of an administrative law judge (“ALJ”).
(Docket Entry # 9, Tr. 19).

The ALJ conducted a hearing on June

25, 2013, at which plaintiff testified and was represented by
counsel.

(Docket Entry # 9, Tr. 19).

On July 11, 2013, the ALJ

issued a decision finding plaintiff was not disabled under the
Social Security Act, 42 U.S.C. § 405, from June 9, 2011 through
July 11, 2013.

(Docket Entry # 9-2, Tr. 19, 29).

On September 24, 2014, the Appeals Council denied
plaintiff’s request for review thereby affirming the ALJ’s
decision as the final decision.

(Docket Entry # 9, Tr. 1-3).

On November 17, 2014, plaintiff filed this action against the
Commissioner pursuant to 42 U.S.C. § 405(g).
1).
2

(Docket Entry #

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 3 of 34

FACTUAL BACKGROUND
I.

Plaintiff’s Background and Work History
Plaintiff was 48 years old at the time of the ALJ hearing.

(Docket Entry # 9, Tr. 37).

At the time of the hearing,

plaintiff was married with children but lived with just her
spouse in an apartment in Brockton, Massachusetts.
Entry # 9, Tr. 37).

Plaintiff has a high school diploma and

some skills and vocational training.
37).

(Docket

(Docket Entry # 9, Tr.

Plaintiff testified at the hearing that she was driving

for an “auction” for two to four hours per week which she had
been doing for a couple of years.1
39).

(Docket Entry # 9, Tr. 37-

This job represented plaintiff’s only income and she

received $70 for one day of work.

(Docket Entry # 9, Tr. 38-

39).
The Disability Determination Services of the Massachusetts
Rehabilitation Commission (“DDS”) referred plaintiff to the
office of John Hennessey, Ph.D. (“Dr. Hennessy”) to perform a
consultative evaluation (“CE”).

(Docket Entry # 9, Tr. 440).

On August 20, 2012, Dr. Hennessey performed a CE on plaintiff.
As set out in his consultative examination report, Dr. Hennessey

1

Plaintiff’s attorney clarified that plaintiff drives the
materials, presumably for an auction business. Plaintiff’s
attorney explained that, “[S]omeone loads [the materials] up and
she takes them from location-to-location.” (Docket Entry # 9,
p. 38).
3

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 4 of 34

reported that:

(1) plaintiff lives with her husband and dog;

(2) plaintiff cleans up the house; (3) she “works two days a
week driving cars to a car auction”; (4) she drives to medical
appointments; (5) plaintiff does her own grocery shopping; (6)
plaintiff enjoys reading and music; and (7) she visits with her
friends and her friends visit her.

(Docket Entry # 9, Tr. 442).

Dr. Hennessy also noted that plaintiff’s “pace, concentration,
attention and focus are well within normal limits,” she “is
capable of carrying out and remembering instructions” and she
responds to supervisors, co-workers and job pressures
appropriately when she is employed.
442).

(Docket Entry # 9, Tr.

He further opined that plaintiff had arthritis in both

knees, left ankle, both hands and back, ailments which
restricted her from sitting, standing or walking for extended
periods of time and also determined that plaintiff was able to
“lift her dog who is approximately 12 pounds.”
9, Tr. 442).

(Docket Entry #

He also determined that plaintiff was “very

overweight and borderline obese.”

(Docket Entry # 9, Tr. 442).

Dr. Hennessy noted that plaintiff’s global assessment of
functioning was an 80.

(Docket Entry # 9, Tr. 444).

At the hearing held on June 25, 2013, plaintiff testified
that she tries “to watch what [she] eat[s]” but that she is
limited because she is only able to “microwave or just make . .
. a fast sandwich.”

(Docket Entry # 9, Tr. 44).
4

In terms of

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 5 of 34

taking care of her house, plaintiff testified that her house is
“a mess” because she is “not able to clean.”
Tr. 44).

(Docket Entry # 9,

Plaintiff further testified to only being able to do

“small loads” of laundry and that she is only able to grocery
shop for small amounts of food because of the “pain in [her]
back.”
II.
A.

(Docket Entry # 9, Tr. 44-46).

Plaintiff’s Medical History
Physical History
At the hearing, plaintiff’s counsel stated that plaintiff

suffers from diabetes and obesity.

(Docket Entry # 9, Tr. 42).

She was 5’8” and 290 pounds at the time of the hearing.
Entry # 9, Tr. 42).

(Docket

Plaintiff’s attorney further stated that

plaintiff experiences pain in her lumbar sacral spine and
bilateral knees from degenerative joint disease.
# 9, Tr. 39).

(Docket Entry

He stated that plaintiff has “significant

spurring which attacks the patella . . . whenever there is
significant movement.”

(Docket Entry # 9, Tr. 39).

On August 8, 2007, plaintiff had a physical exam with her
primary care provider, Benjamin Lightfoot, M.D. (“Dr.
Lightfoot”), at which she complained of a sharp pain in her left
ankle that was “aggravated by sitting, walking and standing.”
(Docket Entry # 9, Tr. 342-344).

Dr. Lightfoot’s exam notes

show that plaintiff’s “pain is relieved by pain/RX meds and OTC
medicines:

acetaminophen.”

(Docket Entry # 9, Tr. 342).
5

His

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 6 of 34

exam notes also describe how plaintiff’s left foot had “no joint
deformity, heat, swelling, erythema or effusion [and had] [f]ull
range of motion.”

(Docket Entry # 9, Tr. 344).

The following month, on September 26, 2007, plaintiff had
another exam with Dr. Lightfoot, at which plaintiff complained
of pain in her “bilateral hand and left ankle . . . aggravated
by standing and walking.”

(Docket Entry # 9, Tr. 339).

Dr.

Lightfoot noted again that plaintiff’s pain is relieved by “OTC
medications:

acetaminophen.”

(Docket Entry # 9, Tr. 339).

On

April 7, 2008, plaintiff was seen in the urgent care department
at the Brockton Neighborhood Health Center (“BNHC”) by Martha
Ayano (“Ayano”), a nurse practitioner.
335-36).

(Docket Entry # 9, Tr.

During this appointment, Ayano reviewed plaintiff’s

musculoskeletal system and noted plaintiff’s left ankle aches,
bilateral knee aches, bilateral hand aches and lumbar aches were
all moderate and stable.

(Docket Entry # 9, Tr. 335).

On March 19, 2009, plaintiff was seen again by Ayano.
(Docket Entry # 9, Tr. 333).

At this visit, plaintiff

complained of “occasional pain [in the] joints of [her] hands,
knees and ankles that is worse with increase[d] activity.”
(Docket Entry # 9, Tr. 333).

Plaintiff’s physical exam during

the appointment showed she had full range of motion and no joint
deformity, heat, swelling, erythema or effusion in her hands,
knees and feet.

(Docket Entry # 9, Tr. 333).
6

On July 9, 2009

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 7 of 34

and January 8, 2010, Dr. Lightfoot noted plaintiff’s
osetoarthiritis was under “fair control” and seemed to respond
well to Ultram and sustained release Tylenol.

(Docket Entry #

9, Tr. 323-324, 327).
A year later on January 13, 2011, plaintiff was seen in the
urgent care department at BNHC, this time by Sanjeetha Aella,
M.D. (“Dr. Aella”), who determined plaintiff’s left foot was
“normal on inspection, no swelling, no erythema, no tenderness”
and that plaintiff’s pain was “most likely from osteoarthritis.”
(Docket Entry # 9, Tr. 317).

Dr. Aella’s exam notes state that

plaintiff’s pain is “most likely from osteoarthritis” and
plaintiff should “continue [taking] tramadol and Tylenol prn for
pain, rest and leg elevation.”

(Docket Entry # 9, Tr. 427).

Dr. Lightfoot saw plaintiff on February 4, 2011 for
musculoskeletal pain in her upper lumbar spine, which plaintiff
claimed was aggravated from lifting, moving and walking.
(Docket Entry # 9, Tr. 424).

Dr. Lightfoot’s exam notes reflect

that plaintiff’s “spine is positive for posterior tenderness
[but] no paravertebral spasm.”

(Docket Entry # 9, Tr. 314).

Dr. Lightfoot also noted plaintiff’s pain “appears to be
muscular in origin” and plaintiff was not interested in physical
therapy (“PT”) or a referral at the time of the visit.
Entry # 9, Tr. 315).

(Docket

Plaintiff’s left ankle was also examined

and Dr. Lightfoot reported there was neither effusion nor any
7

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 8 of 34

areas of focal tenderness.

(Docket Entry # 9, Tr. 314).

Dr.

Lightfoot further noted that plaintiff’s left knee exhibited
tenderness but there was “no obvious effusion.”

(Docket Entry #

9, Tr. 314).
On February 19, 2011, plaintiff had an x-ray of her back
and knee, which determined her “disks [sic] appear to be
essentially normal [and] [t]here is no acute bone abnormality.”
(Docket Entry # 9, Tr. 456).

The x-ray did show, however, that

there was significant degenerative joint disease in plaintiff’s
lower facets.

(Docket Entry # 9, Tr. 456).

The x-ray also

showed “there is no significant varus or vaigus [sic] deformity”
in the right and left knees and “there is a DJD [degenerative
joint disease] of the posterior patella” and “spurring of the
lateral compartment and [a] mild narrowing of the medial
compartment” in plaintiff’s right knee.

(Docket Entry # 9, Tr.

456).
On March 22, 2011, plaintiff saw Dr. Lightfoot to review
the x-ray results.

(Docket Entry # 9, Tr. 421).

At this

appointment, plaintiff reported that her pain was minimal but
worsened when standing and that “Tylenol-codeine No.3” is
helpful.

(Docket Entry # 9, Tr. 421).

Dr. Lightfoot’s exam

notes further show that plaintiff’s spine was “negative for
posterior tenderness.”

(Docket Entry # 9, Tr. 421).

After this

appointment, Dr. Lightfoot drafted a letter to plaintiff’s
8

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 9 of 34

electric company explaining that plaintiff “has osteoarthritis
of both knees and lumbar spine and has difficulty working and
has been unable to afford her electric bill.”
9, Tr. 423).

(Docket Entry #

Dr. Lightfoot requested the electric company to

not shut plaintiff’s electricity off and to place plaintiff on a
payment plan.

(Docket Entry # 9, Tr. 423).

On May 31, 2011, plaintiff had a follow-up visit with Dr.
Lightfoot during which plaintiff complained that her pain “acts
up a lot when up and about,” however, Dr. Lightfoot found
plaintiff’s “pain control is adequate with continued maintenance
of function.”

(Docket Entry # 9, Tr. 419).

At this

appointment, plaintiff was not interested in addressing her
obesity problem or any implementation of an exercise plan.
(Docket Entry # 9, Tr. 420).
Plaintiff saw Dr. Lightfoot again on September 19, 2011.
During the appointment, Dr. Lightfoot notes reflect that
plaintiff “insist[ed] she ha[d] a fairly high level of activity
and ha[d] no excessive calorie intake.”
307).

(Docket Entry # 9, Tr.

Plaintiff also stated she “runs around a lot and [she

does not] eat much.”

(Docket Entry # 9, Tr. 306).

Dr.

Lightfoot emphasized that plaintiff needs to pay close attention
to her calorie intake and to exercise.
307).

(Docket Entry # 9, Tr.

Although plaintiff had obesity issues, Dr. Lightfoot

found that plaintiff’s pain control is “adequate with continued
9

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 10 of 34

maintenance of function.”

(Docket Entry # 9, Tr. 307).

Dr.

Lightfoot also noted that plaintiff has normal range of motion
in her knees and a “small amount of crepitus no effusion.”
(Docket Entry # 9, Tr. 306).
On January 19, 2012, plaintiff had an appointment with Dr.
Lightfoot for her diabetes.

(Docket Entry # 9, Tr. 415).

Dr.

Lightfoot found that plaintiff’s diabetes was “stable and well
controlled on diet.”

(Docket Entry # 9, Tr. 416).

During a

physical examination on December 5, 2012, Dr. Lightfoot found
that plaintiff’s respiratory inspection, auscultation and effort
were normal, plaintiff had an “appropriate mood and affect” and
her heart showed a “regular rate and rhythm [with] no murmurs,
gallops, or rubs.”

(Docket Entry # 9, Tr. 449).

On August 8, 2012, John Benanti, M.D. (“Dr. Benanti”)
performed a residual functional capacity (“RFC”) assessment on
plaintiff.

(Docket Entry # 9, Tr. 92).

Dr. Benanti determined

that plaintiff had exertional limitations including the ability
to lift and carry 20 pounds occasionally and ten pounds
frequently, to stand and/or walk for about six hours in an
eight-hour workday, and to sit for about six hours in an eighthour workday.

(Docket Entry # 9, Tr. 93).

Dr. Benanti also

determined that plaintiff had postural limitations such as
occasionally climbing, stooping, kneeling, crouching, or
crawling.

(Docket Entry # 9, Tr. 93).
10

Finally, Dr. Benanti

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 11 of 34

concluded that “the evidence shows that the individual has some
limitations in the performance of certain work activities;
however, these limitations would not prevent the individual from
performing past relevant work as a/an driver.”

(Docket Entry #

9, Tr. 95).
At the hearing held on June 25, 2013, plaintiff testified
to experiencing “sharp” pain in both her back and knees.
(Docket Entry # 9, Tr. 41).

Plaintiff testified to experiencing

this pain when she is “driving and when [she is] sitting or
standing for a long period of time.”
41).

(Docket Entry # 9, Tr.

Plaintiff further testified to experiencing this pain

after standing for about half an hour and that she elevates her
legs to relieve the pain.

(Docket Entry # 9, Tr. 42-43).

Plaintiff also testified that she wakes up in the morning “sore”
and that her pain makes it difficult for her to take care of
herself, such as taking a shower or going to the bathroom.
(Docket Entry # 9, Tr. 48).

Plaintiff testified that she has

“to be careful when [she] gets up because sometimes [her pain
is] severe enough that [she] can’t even move.”
9, Tr. 48).

Plaintiff also testified that her pain fluctuates

from day-to-day.
B.

(Docket Entry #

(Docket # 9, Tr. 49).

Psychological History
In Dr. Hennessy’s August 2012 CE, Dr. Hennessy determined

that plaintiff was “oriented in all spheres.”
11

(Docket Entry #

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 12 of 34

9, Tr. 442).

He also reported that plaintiff currently had no

psychotherapy counseling with a mental health professional and
she was not currently taking any psychiatric medications.
(Docket Entry # 9, Tr. 441).

It was also reported that

plaintiff’s only history of counseling or psychiatric
hospitalization was when she saw a therapist at South Bay Mental
Health in Brockton for two months in September and October of
2009 for depression and grief counseling.
Tr. 441).

(Docket Entry # 9,

Dr. Hennessy further noted that plaintiff reported

she never had a suicide attempt and was not actively suicidal at
the time of the CE.

(Docket Entry # 9, Tr. 443).

Dr. Hennessy

determined that plaintiff had no psychotic features and that her
“appetite is good, sleep good, energy good, motivation good.”
(Docket Entry # 9, Tr. 443).

He concluded that plaintiff had a

mild depressive order not otherwise specified.
9, Tr. 444).

(Docket Entry #

Also in August 2012, the state agency consultant,

Joan Kellerman, Ph.D. (“Dr. Kellerman”) declined to gauge
plaintiff’s mental impairments as severe, noting that she
“alleges depression” with “no source” and that the “CE now in
[the] file” shows “average intellect, good family support,
social functioning responsible and . . . normal attention, [and]
no evidence of memory issues.”

(Tr. 90-91).

DISCUSSION
I.

Jurisdiction and Standard of Review
12

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The court has the power to affirm, modify or reverse the
ALJ’s decision with or without remanding the case for a hearing.
42 U.S.C. § 405(g).

The ALJ’s findings are conclusive if

supported by substantial evidence.

See Richardson v. Perales,

402 U.S. 389, 390 (1971); Seavey v. Barnhart, 276 F.3d 1, 9 (1st
Cir. 2001); Manso-Pizzaro v. Sec’y of Health and Human Servs.,
76 F.3d 15, 16 (1st Cir. 1996).

The ALJ’s findings of fact are

not conclusive when they 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).

It is the

court’s task to determine “whether the final decision is
supported by substantial evidence and whether the correct legal
standard was used.”

Seavey v. Barnhart, 276 F.3d at 9.

“[T]he determination of the ultimate question of
disability” as well as determinations regarding conflicts in the
evidence and issues of credibility are for the ALJ, not the
courts.

Rodriguez v. Sec’y of Health and Human Servs.,

647 F.2d 218, 222 (1st Cir. 1981); Seavey v. Barnhart, 276 F.3d
at 9.

Even if the record arguably justifies a different

conclusion, this court must affirm the ALJ’s decision as long as
it is supported by substantial evidence.

Rodriguez v. Sec’y of

Health and Human Servs., 819 F.2d 1, 2 (1st Cir. 1987).
“Substantial evidence is more than a scintilla of evidence that

13

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 14 of 34

a reasonable person could find sufficient to support the
result.”
2001).

Musto v. Halter, 135 F.Supp.3d 220, 225 (D.Mass.

If “reviewing the evidence in the record as a whole” a

reasonable mind “could accept it as adequate to support the
Commissioner’s conclusion,” then substantial evidence exists.
Rodriguez, 647 F.2d at 222.
I.

Disability Determination
The Social Security Act defines disability as the:
[I]nability 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 last for a
continuous period of not less than 12 months.

42 U.S.C. § 423(d)(1)(A).

The impairment must be of such

severity that the claimant “‘is not only unable to do [her]
previous work but, considering [her] age, education and work
experience, engage in any other kind of substantial work which
exists in the national economy.’”

Deblois v. Sec’y of Health

and Human Servs., 686 F.2d 76, 79 (1st Cir. 1982) (quoting 42
U.S.C. § 423(d)(2)(A)).
To determine whether a claimant is disabled within the
meaning of the statute, the SSA applies a five-step evaluation
process and considers all of the evidence in the claimant’s case
record.

20 C.F.R. §§ 404.1520 & 416.920; see Goodermote v.

Sec’y of Health and Human Servs., 690 F.2d 5, 6 (1st Cir.

14

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 15 of 34

1982).

In the first step, the claimant is not disabled if he or

she is currently employed.

See Goodermote, 690 F.2d at 6.

If

the claimant is not employed, the decision maker proceeds to the
second step to evaluate if the claimant has a severe impairment
or combination of impairments.

See id.

A severe impairment or

combination of impairments must meet the durational requirement
and “significantly limit[] your physical ability to do basic
work activities.”

20 C.F.R. § 416.909.

If the claimant is not

found to have a severe impairment or combination of impairments,
she is not disabled.

See Goodermote, 690 F.2d at 7.

If the

claimant has a severe impairment or combination of impairments,
then the analysis proceeds to the third step and the ALJ
determines if the claimant’s severe impairment or combination of
impairments meets or is medically equivalent to one of the
listed impairments in Appendix 1, Subpart P, Part 404 of the
Code of Federal Regulations.

20 C.F.R. §§ 404.1520 & 416.920;

see Goodermote, 690 F.2d at 7.

If the impairment or combination

of impairments meets or medically equals a listed impairment
then the claimant is disabled.
step four.

If not, the analysis proceeds to

See Goodermote, 690 F.2d at 7.

At step four, the ALJ must determine if the claimant can
perform any of his or her previous relevant work by comparing
the claimant’s current RFC with the mental and physical demands
of the claimant’s past work.

See Manso-Pizzaro, 76 F.3d at 17.
15

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 16 of 34

If the claimant can perform any of her past relevant work, the
claimant is not disabled.

See Goodermote, 690 F.2d at 7.

In

the first four steps, the burden to provide evidence and to
prove an inability to perform past work rests with the claimant.
See Manso-Pizzaro, 76 F.3d at 17; Freeman v. Barnhart, 274 F.3d
606, 608 (1st Cir. 2001) (“applicant has the burden of production
and proof at the first four steps of the process”).
At step five, if the claimant has successfully satisfied
her burden by showing she can no longer perform her past
relevant work, the burden shifts to the Commissioner to show the
existence of a significant number of jobs in the national
economy that the claimant could perform.

20 C.F.R. §§

404.1520(g), 404.1560(c), 416.920(g) & 416.960(c); Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at
7; Rosado v. Sec’y of Health and Human Servs., 807 F.2d 292, 294
(1st Cir. 1986).

In making this determination, the ALJ must

consider the claimant’s RFC, age, education and work experience.
20 C.F.R. §§ 404.1520(g) & 416.920(g).

The claimant is not

disabled if jobs the claimant can perform exist in significant
numbers in the national economy.

20 C.F.R. §§ 404.1520,

416.920, 404.1545 & 416.945.
III.

ALJ Decision
Before engaging in the five-step disability determination,

the ALJ concluded that plaintiff met the insured status
16

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requirements of 42 U.S.C. §§ 216(i), 223(d).
2, Tr. 19, 21).

(Docket Entry # 9-

At step one, the ALJ found that plaintiff had

not undertaken substantial gainful activity (“SGA”) since the
disability onset date, noting that plaintiff’s minimal work did
not rise to the level of SGA.

(Docket Entry # 9-2, Tr. 21).

At step two, the ALJ determined that plaintiff’s obesity
qualified as a severe impairment.

(Docket Entry # 9-2, Tr. 21).

The ALJ identified the following impairments as not qualifying
as severe:

“diabetes mellitus, unspecified polyarthopathy or

polyarthritis, and mild depressive order NOS . . ..”2
Entry # 9-2, Tr. 21-22).

(Docket

The ALJ declined to characterize

plaintiff’s polyarthritis as severe, finding plaintiff’s
musculoskeletal pain to be no “more than a minimal work-related
limitation.”

(Docket Entry # 9-2, Tr. 22).

In support of this

finding, the ALJ referenced x-rays from February 2011 revealing
“no acute abnormality in the claimant’s lumbosacral spine, mild
degenerative joint disease in the bilateral knees and no
significant varus or valgus in the knees from a standing
perspective.”

(Docket Entry # 9-2, Tr. 22).

The ALJ further

noted that Tylenol alleviated the pain and plaintiff declined to
undertake physical therapy.

(Docket Entry # 9-2, Tr. 22).

The

ALJ also considered evidence that plaintiff’s pain control was

2

NOS is an acronym standing for “not otherwise specified.”
17

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 18 of 34

“adequate with continued maintenance of function.”
Entry # 9-2, Tr. 22).

(Docket

Moreover, the ALJ considered plaintiff’s

statements that she “runs around a lot” and maintains a “fairly
high level of activity,” despite her pain allegations.
Entry # 9-2, Tr. 22).

(Docket

Lastly, the ALJ indicated that

plaintiff’s medical record did not substantially corroborate the
alleged musculoskeletal impairment.

(Docket Entry # 9-2, Tr.

22).
At step three, the ALJ considered the severity of
plaintiff’s obesity and found that it did not meet or equal the
impairments defined in Appendix 1, Subpart P, Part 404 of the
Code of Federal Regulations.

(Docket Entry # 9-2, Tr. 24).

Prior to assessment under step four, the ALJ determined that
plaintiff had the RFC to perform light work, except that she
could only occasionally climb, stoop, kneel, crouch or crawl.
(Docket Entry # 9-2, Tr. 24).

The ALJ did so “[a]fter careful

consideration of the entire record” and in light of those
symptoms which appeared to be reasonably consistent with the
objective medical and non-medical evidence.
2, Tr. 24).

(Docket Entry # 9-

The ALJ found plaintiff’s medically determinable

limitations causally related to her alleged symptoms, however,
the ALJ discounted plaintiff’s credibility in assessing the
severity and persistence of her symptoms and the extent to which

18

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 19 of 34

those symptoms limited her functionality.

(Docket Entry # 9-2,

Tr. 25).
Viewing the objective medical evidence in the record, the
ALJ considered plaintiff’s continuous part-time work over recent
years and her pursuit of full-time employment, finding that it
supported his RFC conclusion.

(Docket Entry # 9-2, Tr. 25).

Further, the ALJ contemplated plaintiff’s Tylenol and nutrition
management regimen as the only real treatment program, secondary
to physician check-ups, pursued by plaintiff in regard to her
obesity.3

(Docket Entry # 9-2, Tr. 25).

Specifically as to

plaintiff’s musculoskeletal impairments, the ALJ emphasized the
“scant and conservative history of treatment” as supportive of
his RFC conclusion and generally inconsistent with plaintiff’s
allegations.

(Docket Entry # 9-2, Tr. 26).

Next, the ALJ reviewed the subjective evidence, ultimately
finding that it buttressed his RFC.
27).

(Docket Entry # 9-2, Tr.

Particularly noteworthy was plaintiff’s ability to upkeep

her home, prepare food, use public transportation, knit, read,
crochet, lift her dog and visit the grocery store, her friends
and medical providers.

(Docket Entry # 9-2, Tr. 27).

In light

of this evidence, the ALJ determined that plaintiff was not as

3

The ALJ further clarified that he gave plaintiff “the
benefit of the doubt” in considering plaintiff’s obesity a
severe impairment despite a paucity of corroborative medical
evidence on the record. (Docket Entry # 9-2, Tr. 25).
19

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 20 of 34

limited by her symptoms as she alleged.
Tr. 27).

(Docket Entry # 9-2,

To the extent that plaintiff’s hearing testimony

varied the range of activities and limitations enumerated, the
ALJ discredited them for lacking reasonably certain objective
evidentiary support, also pointing out the lack of evidence to
suggest any limitation attributable to plaintiff’s medical
condition rather than other sources.
27).

(Docket Entry # 9-2, Tr.

The ALJ also referred to plaintiff’s part-time employment

and pursuit of full-time work as factors “not enhanc[ing] the
credibility of her allegations.”

(Docket Entry # 9-2, Tr. 27).

The ALJ based his RFC assessment on the record as a whole,
but in so doing allotted “great weight” to the RFC assessment
conducted by Dr. Benanti at the behest of DDS, because it was
consistent with the record.

(Docket Entry # 9-2, Tr. 28).

For

the same reasons, the ALJ gave great weight to the opinion of
the state agency consultant, Dr. Kellerman, in rejecting the
existence of a severe mental impairment.
Tr. 28).

(Docket Entry # 9-2,

The ALJ concurred with Dr. Benanti’s opinion based on

the medical evidence of record that plaintiff was able “to lift
and carry 20 pounds occasionally and 10 pounds frequently, to
stand and/or walk for about 6 hours in an 8-hour workday, and to

20

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 21 of 34

sit for about 6 hours in an 8-hour workday.”4
2, Tr. 28).

(Docket Entry # 9-

Additionally, the ALJ agreed with Dr. Benanti’s

observation that plaintiff “could occasionally climb, stoop,
kneel, crouch, or crawl.”

(Docket Entry # 9-2, Tr. 28).

The

ALJ also noted that these opinions were made by non-examining
state agency doctors.

(Docket Entry # 9-2, Tr. 28).

Proceeding to step four, the ALJ found that the RFC of
plaintiff allowed her to perform her past relevant work as a
laborer and driver at the SGA level.
28).

(Docket Entry # 9-2, Tr.

In the ALJ’s estimation, plaintiff’s RFC enabled her to

meet the physical and mental demands of working as a laborer and
driver.

(Docket Entry # 9-2, Tr. 28).

As to step five, the ALJ

stated that, in the alternative, plaintiff’s RFC would allow her
to do other work.

(Docket Entry # 9-2, Tr. 28).

The ALJ

utilized the Medical-Vocational Guidelines, 20 C.F.R. Part 404,
Subpart P, Appendix 2 (“the Grid”) in finding that plaintiff
“can perform all or substantially all of the exertional demands
at the light level of exertion.”

(Docket Entry # 9-2, Tr. 28).

The ALJ did not use a vocational expert (“VE”).
9-2, Tr. 28).

(Docket Entry #

In light of the foregoing, the ALJ found

plaintiff not disabled.

(Docket Entry # 9-2, Tr. 29).

4

The ALJ pointed out that, “No treating or examining
source has identified greater physical or mental limitations
than I have found.” (Docket Entry # 9-2, Tr. 28.)
21

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IV.

Plaintiff’s Arguments
Plaintiff initially contends that the ALJ improperly failed

to classify the nonexertional impairments of degenerative joint
disease and bilateral osteoarthritis in her spine and knees as
severe.

(Docket Entry # 16-1, p. 8).

implicitly challenges the ALJ’s RFC.

Second, plaintiff
She emphasizes that the

ALJ failed to properly develop the record by addressing and
considering the occupational restrictions posed by these
nonexertional limitations, namely, elevating plaintiff’s legs as
well as lifting, standing and walking with respect to
plaintiff’s ability to perform her past relevant work as a
driver.

(Docket Entry # 16-1, pp. 6, 8).

Lastly, plaintiff

argues that the ALJ erred by failing to develop the record by
using a VE to assess the impact of plaintiff’s nonexertional
limitations on plaintiff’s ability to perform her past work at
step four as well as the availability of other jobs at step
five.
A.

(Docket Entry # 16-1, p. 8).

Failure to Classify Nonexertional and Musculoskeletal

Impairments as Severe
Plaintiff maintains that, “the ALJ failed to develop the
record by not properly addressing relevant severe impairments
affecting the plaintiff’s ability to engage in gainful activity
to include her degenerative joint disease and bone spurring.”
(Docket Entry # 16-1, p. 8).

Plaintiff submits that the ALJ
22

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failed to address her need to rest and elevate her legs and that
her degenerative joint disease and bone spurring impaired her
ability to lift, stand and walk.
The standard to establish a severe impairment at step two
is not rigorous.

In fact, it amounts to no more than “a de

minimis test, designed to ‘screen out groundless claims.’”
Hines v. Astrue, 2012 WL 2752192, at *9 (D.N.H. July 9, 2012)
(quoting McDonald v. Sec’y of Health & Human Servs., 795 F.2d
1118, 1123 (1st Cir. 1986)).

Step two requires the claimant to

make “a reasonable threshold showing that the impairment is one
which could conceivably keep him or her from working.”
v. Sec’y of Health & Human Servs., 795 F.2d at 1122.

McDonald

The

plaintiff bears the burden of proving that an alleged impairment
is, in fact, severe through the use of medical evidence.

See 20

C.F.R. § 404.1512(c) (plaintiff must provide evidence to show
impairment is severe and affects functioning).
A “severe impairment” is an impairment “which significantly
limits [the claimant’s] physical or mental capacity to do basic
work activities.”

20 C.F.R. §§ 404.1520(c), 416.920(c).

Conversely, “An impairment or combination of impairments is not
severe if it does not significantly limit [the claimant’s] your
physical or mental ability to do basic work activities.”
C.F.R. §§ 404.1521(a), 416.921(a).

20

“The severity requirement

cannot be satisfied when medical evidence shows that the person
23

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 24 of 34

has the ability to perform basic work activities.”
1985 WL 56856, at *1 (S.S.A. 1985).

SSR 85-28,

As explained in SSR 85-28:

[a]n impairment or combination of impairments is found “not
severe” and a finding of “not disabled” is made at this
step when medical evidence establishes only a slight
abnormality or a combination of slight abnormalities which
would have no more than a minimal effect on an individual’s
ability to work even if the individual’s age, education, or
work experience were specifically considered (i.e., the
person’s impairment(s) has no more than a minimal effect on
his or her physical or mental ability(ies) to perform basic
work activities).
SSR 85-28, 1985 WL 56856, at *1 (S.S.A. 1985); accord MartinezLopez v. Colvin, 54 F.Supp.3d 122, 129-30 (D.Mass. 2014).

Basic

work activities consist of an ability and aptitude “necessary to
do most jobs” such as the physical functions of “walking,
standing, sitting [and] lifting.”

20 C.F.R. §§ 404.1521,

416.921; Gonzalez–Ayala v. Sec’y of Health and Human Servs., 807
F.2d 255, 256 (1st Cir. 1986) (ALJ used “correct definitional
framework for determining” severity, “i.e., whether the
impairment or combination of impairments significantly limited
the claimant’s ability to perform basic work activities
such as walking, standing, sitting, lifting or carrying”).
Notwithstanding plaintiff’s assertion that the ALJ failed
to properly address her need to rest and elevate her legs and
include her degenerative joint disease and bone spurring as
severe impairments, the record provides substantial evidence to
conclude that her musculoskeletal impairments were not severe.

24

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The Commissioner correctly articulates Dr. Lightfoot’s findings
and identifies evidence in the record (Docket Entry # 21, p. 10)
which discounts plaintiff’s severity argument.

Added to this

evidence are the findings by Dr. Benanti who determined that
plaintiff could stand and/or walk and sit for six hours in an
eight-hour workday, with the occasional ability to climb, stoop,
kneel, crouch and crawl.

(Tr. 93).

Dr. Benanti further

specified that plaintiff was capable of lifting and carrying 20
pounds occasionally and ten pounds frequently.
Dr. Benanti’s opinion “great weight.”

The ALJ afforded

(Docket Entry # 9-2, Tr.

28).
Furthermore, the medical record showed that plaintiff
maintained normal range of motion in her ankle and knees and no
joint deformity, swelling, effusion, or valgus in the knees.
(Tr. 306, 312, 314, 330, 340, 344, 383).

Tylenol diminished any

pain associated with plaintiff’s lower extremities (Tr. 306,
313, 324, 421, 339), which at worst was categorized as minimalto-moderate, but could be worse when standing.

(Tr. 421).

In

fact, as recently as September 19, 2011, plaintiff indicated
that she “runs around a lot” and maintains a “fairly high level
of activity.”

(Tr. 22, 306).

Consequently, the ALJ decided

that plaintiff suffered musculoskeletal pain that neither
“caused the claimant more than a minimal work-related
limitation” nor rose to the level of a severe impairment.
25

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(Docket Entry # 9-2, Tr. 22-23).

In sum, the record is replete

with evidence that plaintiff’s musculoskeletal limitations and
need to rest and elevate her legs did no more than minimally
limit plaintiff’s ability to perform basic work activities.
Accordingly, the ALJ’s review of these facts and his decision to
deem plaintiff’s nonexertional, musculoskeletal limitations nonsevere is supported by substantial evidence.
B.

Failure to Address and Consider Nonexertional Limitations
As noted previously, plaintiff impliedly challenges the RFC

assessment and argues that the ALJ failed to properly develop
the record by addressing and considering the occupational
restrictions posed by plaintiff’s nonexertional limitations,
namely, elevating plaintiff’s legs as well as lifting, standing
and walking, in plaintiff’s ability to perform her past relevant
work.5

Contrary to plaintiff’s argument, the ALJ considered that

plaintiff’s “symptoms are exacerbated by prolonged sitting or
standing, and somewhat reduced by elevation and medication.”
(Docket Entry # 9-2, Tr. 25).

The ALJ however rejected

plaintiff’s “statements concerning the intensity, persistence,
and limiting effects of these symptoms.”

5

(Docket Entry # 9-2,

Nonexertional limitations are defined as “[l]imitations
or restrictions which affect your ability to meet the demands of
jobs other than the strength demands, that is, demands other
than sitting, standing, walking, lifting carrying, pushing or
pulling, are considered non-exertional.” 20 C.F.R. §
404.1569(a).
26

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 27 of 34

Tr. 25).

He explained, correctly, that she “has received very

minimal treatment for her alleged musculoskeletal impairments,
and this treatment has been entirely conservative in nature,
focusing on Tylenol use.”

(Docket Entry # 9-2, Tr. 26).

In

addition, the ALJ commented on plaintiff’s failure to seek
surgery, “injection therapy, or even a consistent prescription
for narcotic pain medication.”

(Docket Entry # 9-2, Tr. 26).

It is the prerogative of the ALJ to resolve conflicts and
credibility issues in the record when supported by substantial
evidence.

Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d

at 222; see Frustaglia v. Sec’y of Health & Human Servs., 829
F.2d 192, 195 (1st Cir. 1987) (ALJ’s credibility determination
“entitled to deference” when supported by substantial evidence);
Blyther v. Chater, 931 F.Supp. 60, 67 (D.Mass. 1996)
(recognizing that substantial evidence supports ALJ’s
credibility determination when based on medical opinion and
treatment options).

The record provides substantial evidence

for the ALJ’s findings.

As aptly noted by the ALJ, plaintiff

declined several treatment options, instead espousing a
conservative treatment approach centered on Tylenol use.
(Docket Entry # 9-2, Tr. 26).

In reviewing the medical record,

the ALJ found that plaintiff maintained normal ranges of motion
in her ankle and knees which were otherwise devoid of joint
deformity, swelling, effusion or valgus.
27

(Tr. 306, 312, 314,

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 28 of 34

330, 340, 344, 383).

These considerations were aided by

repeated suggestions in the medical record that Tylenol, in
addition to or in place of other prescribed pain relievers,
managed plaintiff’s pain (Tr. 306, 313, 324, 421, 339), which
otherwise tended to be mild.

(Tr. 421).

The ALJ considered

this assessment consistent with the array of plaintiff’s daily
activities in upkeeping her home, preparing food, using public
transportation, knitting, reading, crocheting, lifting her dog
and visiting the grocery store, her friends and medical
providers.

(Docket Entry # 9-2, Tr. 22, 25, 27).

Further, the

ALJ factored in plaintiff’s ongoing part-time work and ability
to work full-time at the onset of her symptoms.

(Tr. 25, 186-

96).
In addition, the ALJ afforded great weight to Dr. Benanti’s
opinion.

That opinion identified plaintiff’s ability to stand

and/or walk and sit for six hours in an eight-hour workday, with
the occasional ability to climb, stoop, kneel, crouch and crawl.
(Docket Entry # 9-2, Tr. 28, 93).

An RFC assessment prepared by

a non-examining, non-testifying physician is entitled to
evidentiary weight dependent on “the nature of the illness and
the information provided by the expert.”

Rodriguez v. Sec’y of

Health & Human Servs., 647 F.2d at 223.

The findings of a non-

examining physician may constitute substantial evidence when the
report includes more than “brief conclusory statements or the
28

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 29 of 34

mere checking of boxes denoting levels of residual functional
capacity” and indicates “some care” in reviewing the medical
file.

Berrios Lopez v. Sec’y of Health & Human Servs., 951 F.2d

427, 431 (1st Cir. 1991).

As explained in the relevant

regulations, “[t]he better an explanation a source provides for
an opinion, the more weight we will give that opinion.”

20

C.F.R. § 404.1527(c)(3), (e); 20 C.F.R. § 416.927(c)(3), (e).
“Furthermore, because nonexamining sources have no examining or
treating relationship with [the claimant], the weight” given to
“their opinions will depend on the degree to which they provide
supporting explanations for their opinions” and “the degree to
which these opinions consider all of the pertinent evidence . .
..”

20 C.F.R. § 404.1527(c)(3), (e); 20 C.F.R. § 416.927(c)(3),

(e).
Here, the ALJ had substantial evidence to allot the medical
opinion of Dr. Benanti “great weight” because the conclusions of
that opinion are adequately supported by explanation and
grounded in consideration of the relevant evidence.

Dr.

Benanti’s opinion evinces more than a cursory examination of the
relevant evidence, clearly assessing the additional medical
records provided by plaintiff, namely, the notes of treating
physicians indicating some osteoarthritis and treatment with
Tylenol.

(Tr. 91).

In addition, Dr. Benanti provided a

relatively detailed explanation to support his RFC assessment,
29

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particularly citing plaintiff’s adequate pain management through
“continued maintenance of function.”

(Tr. 94).

Dr. Benanti

regarded plaintiff’s functional disabilities as variable and,
based on the reviewed function report, unspecific as to “what
these disabilities might be” save several boxes checked by
plaintiff’s physician.

(Tr. 94).

Lastly, Dr. Benanti

referenced the lack of any imaging study done to corroborate
plaintiff’s claims.

(Tr. 94).

Accordingly, this court finds

that the ALJ permissibly assigned great weight to the report of
Dr. Benanti.
Moreover, the ALJ addressed the incompatibility of
plaintiff’s demonstrated abilities with her allegations of
disabling nonexertional limitations, emphasizing her ability “to
prepare light meals, help her husband with household tasks, use
public transportation, shop for groceries, handle finances,
crotchet, knit, spending time with friends, and attend her
medical appointments” in addition to her ability to lift her dog
and work part-time.

(Docket Entry # 9-2, Tr. 27).

To the

extent that plaintiff’s hearing testimony contradicted this
range of activity and functionality, the ALJ discounted it for
lack of objective evidentiary support and lack of certitude in
causally relating plaintiff’s degree of limitation to her
medical condition.

(Docket Entry # 9-2, Tr. 27).

Indeed, the

medical record does not support a finding that plaintiff’s RFC
30

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should be further constrained because of a need to elevate her
legs and limited ability to stand or walk for extended periods.
The ALJ addressed plaintiff’s musculoskeletal injuries in
depth and concluded that plaintiff suffered no more than, at
worst, moderate pain.

(Docket Entry # 9-2, Tr. 22).

The record

supports this conclusion with the doctor’s notes repeatedly
quantifying plaintiff’s pain as mild and amenable to diminution
through the use of pain-relieving medications.
324, 421, 339).

(Tr. 306, 313,

Overall, this court finds the ALJ adequately

addressed and considered plaintiff’s nonexertional limitations
and that substantial evidence supports the ALJ’s RFC assessment.
C.

Failure to Obtain Testimony of VE
Plaintiff’s contention that the ALJ erred in failing to

obtain VE input is misplaced because the ALJ found plaintiff not
disabled at step four of the disability determination.

VE

testimony may be used at step four, but it is not required.
See, e.g., Santiago v. Comm’r of Soc. Sec., 1998 WL 161133, at
*1 (1st Cir. Mar. 18, 1998); Santos-Martinez v. Sec’y of Health &
Human Servs., 1995 WL 275679, at *1 (1st Cir. May 9, 1995) (per
curiam);6 Lewis v. Barnhart, 2005 WL 1923514, at *1 (D.Me. Aug.
9, 2005).

6

First Circuit Local Rules dictate that a court may cite
unpublished opinions “regardless of the date of issuance.”
First Cir. Local Rule 32.1. A court may consider unpublished
31

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At step four, the ALJ concluded that plaintiff could
perform past relevant work as a driver or laborer.
Entry # 9-2, Tr. 28).

(Docket

In contrasting plaintiff’s RFC with “the

physical and mental demands of this past relevant work,” the ALJ
found that plaintiff could perform this past relevant work.
(Docket Entry # 9-2, Tr. 28).

Plaintiff’s ability to stand,

walk and sit for six hours in an eight-hour workday, with the
occasional ability to climb, stoop, kneel, crouch and crawl
supports the ALJ’s determination that plaintiff could engage in
light work with the occasional ability to climb, stoop, kneel,
crouch and crawl.

(Docket Entry # 9-2, Tr. 28, 93).

Plaintiff’s ability to perform past relevant work is
substantially supported by Dr. Benanti’s RFC assessment in
addition to plaintiff’s ongoing part-time work and her testimony
indicating that she could use public transportation, maintain
her home, prepare food for herself, make several trips to the
grocery store, visit physicians and friends, as well as knit,
read and crochet.

(Docket Entry # 9-2, Tr. 27).

In short,

substantial evidence supports the ALJ’s step four determination
that plaintiff could perform her past relevant work.
Although the ALJ found plaintiff not disabled at step four,
the ALJ stated, alternatively, that, “In the absence of this

opinions “for their persuasive value but not as binding
precedent.” First Cir. Local Rule 32.1.
32

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past relevant work,” plaintiff could do other work based on a
conclusion that she was not disabled under the Grid.
Entry # 9-2, Tr. 28).

(Docket

Here too, the absence of VE testimony

does not warrant a remand or reversal.

Where, as here, a

claimant’s nonexertional limitations are found “to impose no
significant restriction on the range of work a claimant is
exertionally able to perform, reliance on the Grid remains
appropriate.”

Ortiz v. Sec’y of Health & Human Servs., 890 F.2d

520, 524 (1st Cir. 1989).

The ALJ found that plaintiff’s

nonexertional restrictions did not significantly restrict the
range of work she could perform based on the medical record and
the range of activities plaintiff actually performed despite
allegations of disabling pain.
the ALJ’s findings.

Substantial evidence supports

In sum, the ALJ did not err by failing to

obtain VE testimony either at step four or five of the
disability determination.
CONCLUSION
In accordance with the foregoing discussion, this court
RECOMMENDS7 that plaintiff’s motion for an order reversing the

7

Any objections to this Report and Recommendation must be
filed with the Clerk of Court within 14 days of receipt of the
Report and Recommendation to which objection is made and the
basis for any such objection. See Rule 72(b), Fed. R. Civ. P.
Any party may respond to another party’s objections within 14
days after service of the objections. Failure to file
objections within the specified time waives the right to appeal
the order.
33

Case 1:14-cv-14179-NMG Document 25 Filed 06/20/16 Page 34 of 34

decision of the Commissioner (Docket Entry # 16) be DENIED and
that defendant’s motion to affirm the Commissioner’s decision
(Docket Entry # 20) be ALLOWED.
__/s/ Marianne B. Bowler_
MARIANNE B. BOWLER
United States Magistrate Judge

34