Charkowski v. Colvin

Filing 29

Judge George A. O'Toole, Jr:OPINION AND ORDER entered denying 16 Motion for Order Reversing Decision of Commissioner; granting 20 Motion for Order Affirming Decision of Commissioner (Halley, Taylor) Modified on 3/22/2017 (Halley, Taylor).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-13356-GAO
BRIAN L. CHARKOWSKI,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Defendant.
OPINION AND ORDER
March 22, 2017
O’TOOLE, D.J.
The plaintiff, Brian L. Charkowski, appeals the denial of his application for Social Security
Disability Benefits (“DIB”) by the Commissioner of Social Security (“Commissioner”). Before
the Court are Charkowski’s Motion to Reverse the Decision of the Commissioner (dkt. no. 16) and
the Commissioner’s Motion to Affirm the Commissioner’s Decision (dkt. no. 20). After
consideration of the administrative record and the parties’ memoranda, the Court now affirms the
Commissioner’s decision because there is substantial evidence in the administrative record to
support the decision and no error of law was made.
I.

Procedural History
Charkowski applied for DIB on January 3, 2012, alleging disability beginning January 3,

2012. (Administrative Tr. at 187–95, 221 [hereinafter R.]).2 Charkowski’s application was initially

1

Nancy A. Berryhill is now the acting commissioner of the Social Security Administration.
Therefore, pursuant to Federal Rule of Civil Procedure 25(d), Berryhill is automatically substituted
as the defendant in this action.
2
The administrative record has been filed electronically. The record is in its original paper form,
with the page numbers in the lower right-hand corner of each page. Citations to the record are to
the pages as originally numbered, rather than to numbering supplied by the electronic docket.

denied on September 18, 2012, (id. at 75–86), and again upon reconsideration on January 10, 2013.
(Id. at 87–101.) Charkowski requested a hearing, (id. at 109–10), which was held before
Administrative Law Judge Henry J. Hogan on March 4, 2014. (Id. at 41–74.) On March 28, 2014,
the ALJ issued an unfavorable decision, stating that Charkowski could perform his past relevant
work as a greeter based on his residual functional capacity (“RFC”). (Id. at 9–34.) Accordingly,
the ALJ found that Charkowski was “not disabled” pursuant to the Social Security Act. (Id. at 33.)
On July 15, 2015, the Appeals Council denied Charkowski’s request for review. (Id. at 1–6.) This
denial rendered the ALJ’s decision the final decision of the Commissioner, and made the case
suitable for review by this Court pursuant to 42 U.S.C. § 405(g).
II.

Discussion
An individual may seek judicial review of a final decision by the Commissioner within

sixty days of the decision. 42 U.S.C. § 405(g). Judicial review is restricted “to determining whether
the ALJ used the proper legal standards and found facts upon the proper quantum of evidence.”
Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001). Upon review, a court will uphold the ALJ’s decision when it is supported
by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is considered “more than a mere
scintilla” and exists when there is sufficient relevant evidence that “a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Thus, a Commissioner’s decision is
affirmed “even if the record arguably could justify a different conclusion,” Rodriguez Pagan v.
Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (citing Lizotte v. Sec’y of Health
& Human Servs., 654 F.2d 127, 128 (1st Cir. 1981)), for “factual inferences, credibility
determinations, and resolutions of conflicts in the evidence are reserved to the Commissioner.”

2

Conte v. McMahon, 472 F. Supp. 2d 39, 46 (D. Mass. 2007) (citing Ortiz v. Sec’y of Health &
Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)). Further, the ALJ may rely upon findings and
opinions of multiple physicians to ascertain medical facts. Evangelista v. Sec’y of Health &
Human Servs., 826 F.2d 136, 144 (1st Cir. 1987).
Charkowski argues the ALJ decision should be overturned both for lack of substantial
evidence to support the decision and for legal error. Specifically, Charkowski argues the ALJ erred
by: (1) determining that Charkowski had a residual functional capacity (“RFC”) that was
inconsistent with the findings and conclusions expressed by reviewing Disability Determination
Services (“DDS”) physicians; (2) failing to comply with SSR 00-4p at step four; and (3) relying
on vocational expert (“VE”) Diane Durr’s testimony to contravene the Grids.
The full and extensive administrative record is filed on the docket of this case, as is the
lengthy written decision of the ALJ. There is no reason to rehearse the details of Charkowski’s
medical history or of the DIB application process except as is necessary to discuss the specific
objections made to the Commissioner’s decision.
A.

Substantial Evidence Supports the ALJ’s Evaluation of Charkowski’s Physical
RFC
i.

Substantial Evidence Supports the ALJ’s Decision to Adopt Portions of the
DDS Physicians’ Assessments of Charkowski’s RFC

Charkowski alleges that the ALJ erred in rejecting the opinions of the DDS physicians,
Drs. Barbara Trockman and Jane Matthews, who found Charkowski limited to sedentary work.3

3

Sedentary work is defined as work that
involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary
job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a).
3

(R. at 81–82, 95–96.) The ALJ assessed Charkowski with the RFC to perform light work with
several limitations. (Id. at 14.) To make that determination, the ALJ afforded “partial and great
weight” to Dr. Trockman’s assessment of Charkowski’s RFC at the initial stage and Dr. Matthews’
assessment on reconsideration, as well as “evidence at [the] hearing level, including the fact that
the claimant was returned to light work by [nurse practitioner (“NP”) Veronica] Coutu in July
2012, and reports by Dr. Medeiros that the claimant can lift up to 20 pounds.” (Id. at 30.)
Charkowski is correct in stating that DDS examiners are highly qualified experts in Social
Security disability evaluations. However, an ALJ must consider the record as a whole when
determining a claimant’s RFC; even a treating physician’s opinion is discounted if “inconsistent
with the other substantial evidence in [the] case record.”4 20 C.F.R. § 404.1527(c)(2). It is the
prerogative of the ALJ to assess a claimant’s RFC. Id. §§ 404.1527(e)(2), 404.1546(c). The ALJ
must evaluate each medical opinion in the record, regardless of the source. Id. § 404.1527(c). The
ALJ may weigh one opinion more heavily than another. Id. To decide how much weight to assign
an opinion, the ALJ must consider: (1) the examining relationship between the claimant and the
source; (2) the treatment relationship between the claimant and the source (including length of
treatment relationship, frequency of examination, and the nature and extent of the treatment
relationship); (3) the evidentiary support for the opinion; (4) the opinion’s consistency with the
entire record; (5) the specialization of the source; and (6) other factors the claimant or others raise.
Id. § 404.1527(c)(1)–(6).

4

A treating source is a claimant’s “own physician, psychologist, or other acceptable medical
source who provides [the claimant], or has provided [the claimant], with medical treatment or
evaluation and who has, or has had, an ongoing treatment relationship with [the claimant].” 20
C.F.R. § 404.1502. Nontreating sources include physicians and psychologists who have examined
the claimant, but do not have an ongoing treatment relationship with the claimant. Id.
4

The ALJ determined that the DDS examiners’ assessments of Charkowski’s physical RFC
which limited him to sedentary work were inconsistent with the medical record as a whole. First,
as the Commissioner rightly points out, the DDS physicians did not have the opportunity to review
NP Coutu’s July 11th note releasing Charkowski to light duty, nor Dr. Medeiros’s assessment that
Charkowski was able to lift up to twenty pounds occasionally. (R. at 76–78, 88–92; Mem. of Law
in Supp. of Def.’s Mot. to Affirm the Commissioner’s Decision 13–14 (dkt. no. 21).) The ALJ is
entitled to draw inferences from the record evidence. Johnson ex rel. M.C.J. v. Astrue, No. 1111243-JLT, 2012 WL 1605984, at *7 (D. Mass. Apr. 12, 2012), adopted by, 2012 WL 1605982
(D. Mass. May 7, 2012). The ALJ may have inferred that the DDS examiners’ assessments would
have been different if they had known those additional facts.
Moreover, there was in the record substantial evidence to support the ALJ’s determination
that Charkowski possessed the RFC to perform light work, albeit with several limitations.
Charkowski’s self-reported range of daily activities in both Social Security Function Reports are
generally inconsistent with limitations of sedentary work. (R. at 279–88.) At the hearing before
the ALJ, Charkowski testified that he was able to cook, shop for groceries, drive his car, perform
light housekeeping, and lift ten to fifteen pounds. (Id. at 52–54, 57–61.) His testimony in these
respects was consistent with Dr. Trockman’s notation in the “RFC – Additional Explanation”
section that Charkowski had “independent ADLs,5 meals, chores, drives, shops.” (Id. at 82.) It is
also worth noting that while both DDS examiners limited Charkowski to sedentary work, they also
found him not disabled, and capable of performing his previous work as a greeter as actually
performed. (Id. at 84, 98–99.)

5

ADLs are “activities of daily living.”
5

Although the ALJ’s determination might not have been the only conclusion which could
have been reached, “the resolution of conflicts in the evidence is for the Secretary, not the courts,”
Ortiz, 955 F.2d at 769 (citing Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981)), and accordingly, “[w]here the facts permit diverse inferences, we will affirm the
Secretary so long as the inferences drawn are supported by evidence.”6 Baez Velez v. Sec’y of
Health & Human Servs., 993 F.2d 1530, at *7 (1st Cir. 1993) (per curiam) (unpublished table
decision) (citing Rodriguez Pagan, 819 F.2d at 3).
ii.

Substantial Evidence Supports the ALJ’s Decision to Rely on the Findings
of NP Coutu and Dr. Medeiros

Charkowski next objects that the ALJ erred in relying on the findings of NP Coutu and Dr.
Medeiros because they are not “acceptable medical sources.”7 He is right that they do not fall
within the definition of “acceptable medical sources” because NP Coutu is a nurse practitioner and
Dr. Medeiros is a chiropractor. See 20 C.F.R. § 404.1513(a). However, as previously stated, an
ALJ must consider all evidence in a claimant’s record, which includes objective medical evidence,
opinions from medical sources, and opinions from “other sources.”8 Id. §§ 404.1513(d),
404.1527(c). “[D]epending on the particular facts in a case, and after applying the factors for
weighing opinion evidence, an opinion from a medical source who is not an ‘acceptable medical

6

Moreover, the ALJ had the opportunity to observe Charkowski, evaluate his demeanor, and
determine how Charkowski’s testimony coincided with the entire record, whereas the DDS
examiners simply evaluated objective medical records. The ALJ’s credibility determination is
“entitled to deference, especially when supported by specific findings.” Frustaglia v. Sec’y of
Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987) (citing DaRosa v. Sec’y of Health &
Human Servs., 803 F.2d 24, 26 (1st Cir. 1986)).
7
Acceptable medical sources are licensed physicians, licensed or certified psychologists, licensed
optometrists, licensed podiatrists, and qualified speech-language pathologists. 20 C.F.R. §
404.1513(a).
8
Other sources include “nurse practitioners, physician assistants, licensed clinical social workers,
naturopaths, chiropractors, audiologists, and therapists.” SSR 06-03P, 2006 WL 2329939 (Aug. 9,
2006).
6

source’ may outweigh the opinion of an ‘acceptable medical source,’ including the medical
opinion of a treating source.” SSR 06-03p, 2006 WL 2329939, at *5 (Aug. 9, 2006).
The ALJ legitimately took into account NP Coutu’s July 11th “light duty” note and Dr.
Medeiros’s assessment of Charkowski’s capacity to lift twenty pounds. He specifically noted NP
Coutu’s treating relationship with Charkowski as justification for giving weight to her note
releasing Charkowski to light duty. (R. at 30.) According to NP Coutu’s treatment notes,
Charkowski himself reported that his pain was improving and conveyed his desire to go back to
work. (Id. at 424.) This statement is supported by other evidence in the record, such as
Charkowski’s reports that the intercostal nerve blocks he received on June 6, 2012, and July 6,
2012, at St. Anne’s Pain Clinic had decreased his pain. (Id. at 420–21, 634, 637, 639.)
The ALJ stated that he gave Dr. Medeiros’s opinion serious consideration in light of his
treating relationship with Charkowski and afforded great weight to Dr. Medeiros’s assessments
that Charkowski was capable of lifting twenty pounds because of the evidence in the record. (Id.
at 30.) For example, Charkowski testified at his hearing that he was capable of lifting up to fifteen
pounds, often shopped for groceries, vacuumed, and drove his car. (Id. at 54, 57, 59.) In addition,
Dr. Medeiros’s own reports after Charkowski’s weekly spine manipulations noted that the
treatments had lessened his pain. (Id. at 714–17, 720–25, 833–43.) These weekly reports, as well
as the results from Charkowski’s October 2013 thoracic spine MRI, support the ALJ’s statement
that “there has been no objective evidence that his condition has deteriorated since” he was
returned to light work.9 (Id. at 30.) If an ALJ’s decision “makes clear that he considered the
factors,” then he is “not required to expressly mention each factor” when determining how much

9

Charkowski’s October 2013 MRI results were largely consistent with his December 2012 MRI.
(Id. at 758.) The findings were “statistically related to degenerative process.” (Id.)
7

weight to afford each opinion. McNelley v. Colvin, No. 15-1871, 2016 WL 2941714, at *2 (1st
Cir. Apr. 28, 2016) (citation omitted). In sum, the ALJ’s decision to give great weight to NP
Coutu’s note releasing Charkowski to light duty, and Dr. Medeiros’s assessment that Charkowski
was capable of lifting up to twenty pounds, was consistent with the analysis required by 20 C.F.R.
§ 404.1527 and supported by substantial evidence.
iii.

Substantial Evidence Supports the ALJ’s Decision to Selectively Rely on Dr.
Medeiros’s Opinions

Charkowski also argues that the ALJ’s selective reliance on Dr. Medeiros’s opinions was
improper. The argument is unconvincing because the First Circuit has expressly permitted an ALJ
“to piece together the relevant medical facts from the findings and opinions of multiple
physicians.” Evangelista, 826 F.2d at 144; see Howard v. Astrue, No. 06-96-B-W, 2007 WL
951389, at *5 (D. Me. Mar. 27, 2007), adopted by, 2007 WL 1146578 (D. Me. Apr. 16, 2007)
(citation omitted) (stating that “[i]n this circuit, picking and choosing among experts’ opinions
does not in itself constitute error”). In other words, an ALJ does not have to accept the entirety of
a doctor’s opinion simply because he accepts part of it.
Here the ALJ’s decision to selectively rely on Dr. Medeiros’s two physical capacity
evaluations was explained by his specific acknowledgement that aspects of the chiropractor’s two
physical capacity evaluations were incongruent with a good bit of the rest of the medical record,
including Dr. Medeiros’s own reports after Charkowski’s weekly spine manipulations, which Dr.
Medeiros noted provided relief. (R. at 30, 714–17, 720–25, 833–43.) For example, Dr. Medeiros’s
opinions in the physical capacity evaluations that Charkowski was only capable of sitting for one
hour at a time, in an eight-hour workday, were inconsistent with Charkowski’s own testimony at
his administrative hearing, where Charkowski testified that he sat for four or five hours each
morning watching television. (See id. at 59–60.)
8

It is the responsibility of the ALJ, not this Court, to resolve evidentiary conflicts and to
draw factual inferences. Ortiz, 995 F.2d at 769. Because the ALJ explained his decision by citing
substantial evidence in the record, “this Court is bound to affirm it, ‘even if the record arguably
could justify a different conclusion.’” Rivera v. Chater, 943 F. Supp. 90, 94 (D. Mass. 1996)
(quoting Rodriguez Pagan, 819 F.2d at 3).
B.

Substantial Evidence Supports the ALJ’s Decision to Rely on VE Durr’s Testimony
at Step Four

Charkowski argues that the ALJ failed to address a conflict between VE Durr’s testimony
that Charkowski could perform his previous work as a greeter, despite being limited to simple,
repetitive tasks, and the Dictionary of Occupational Titles’ (“DOT”) description of a greeter, which
requires a “specific vocational preparation” (“SVP”) of three.
Charkowski’s argument highlights a difference between the DOT and the Social Security
regulations. The DOT classifies each occupation with a physical demand or strength factor, a ninelevel SVP score, and a six-level general educational development (“GED”) score. Appendix C –
Components of the Definition Trailer, 1991 WL 688702 (Jan. 1, 2016). An SVP score is defined
as “the amount of lapsed time required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in a specific job-worker
situation.” Id. An occupation with an SVP of three will take “over 1 month up to and including 3
months” to master. Id. A GED score is composed of three elements (reasoning, mathematics, and
language development) which embrace the educational aspects required for a position. Id. A GED
of three requires one to “[a]pply commonsense understanding to carry out instructions furnished
in written, oral, or diagrammatic form” and to “[d]eal with problems involving several concrete
variables in or from standardized situations.” Id. In contrast, the Social Security regulations divide

9

skill requirements into just three levels: unskilled work, semi-skilled work, and skilled work. 20
C.F.R. § 404.1568(a)–(c).
Because of the slightly different standards for classifying occupations by the DOT and by
Social Security regulations, complete congruency is not to be expected. In an attempt to clarify
this ambiguity, a Social Security Administration (“SSA”) policy interpretation states in relevant
part that “unskilled work corresponds to an SVP of 1–2; semi-skilled work corresponds to an SVP
of 3–4; and skilled work corresponds to an SVP of 5–9 in the DOT.” SSR 00-4p, 2000 WL
1898704, at *3 (Dec. 4, 2000). Further, the SSA opined, “[a]lthough there may be a reason for
classifying an occupation’s skill level differently than in the DOT, the regulatory definitions of
skill levels are controlling.” Id.
There was no error in the ALJ’s reliance on VE Durr’s testimony, nor was there an internal
conflict for him to resolve. SSR 00-4p states that “[w]hen there is an apparent unresolved conflict
between VE or [vocational specialist (“VS”)] evidence and the DOT, the adjudicator must elicit a
reasonable explanation for the conflict before relying on the VE or VS evidence to support a
determination or decision about whether the claimant is disabled.” Id. at *2. In that situation, the
adjudicator will “[a]sk the VE or VS if the evidence he or she has provided conflicts with
information provided in the DOT” and if “the VE’s or VS’s evidence appears to conflict with the
DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict.” Id. at *4.
First, the ALJ began his examination of VE Durr by stating that he would assume her
testimony was consistent with the DOT, unless she indicated otherwise, and she agreed with that
assumption. (R. at 70.) Courts in this Circuit have stated that this instruction, along with testimony
regarding requirements of jobs proposed by the VE (based on the VE’s experience and DOT
classifications) satisfies an adjudicator’s responsibility to inquire into and to resolve potential

10

conflicts with the DOT. See Hargrow v. Colvin, No. 13-10170-DJC, 2014 WL 1153782, at *16
(D. Mass. Mar. 19, 2014); Wilcox v. Barnhart, No. 03-408-PB, 2004 WL 1733447, at *5 (D.N.H.
July 28, 2004) (concluding that because the VE stated that his testimony was based on a job’s
description in the DOT, the ALJ had no reason to suspect a conflict between the VE’s testimony
and the DOT existed).
Second, because of the difference in benchmarks, the assignment of an SVP of three does
not necessarily conflict with an RFC limiting the claimant to simple, routine work. See Auger v.
Astrue, 792 F. Supp. 2d 92, 97 (D. Mass. 2011) (holding that “[t]his court joins the great weight
of authority on this issue and holds that no conflict existed between the VE’s testimony that
Plaintiff could work as a surveillance system monitor despite being limited to ‘simple and
unskilled’ work, and the DOT’s level-three classification”); see also Thompson v. Astrue, No. 1011742-JLT, 2012 WL 787367, at *10 (D. Mass. Feb. 17, 2012), adopted by, 2012 WL 787363 (D.
Mass. Mar. 8, 2012) (stating that “the fact that Thompson’s RFC was limited to carrying out simple
two-to-three step instructions is therefore not necessarily inconsistent with the ALJ’s
determination that Thompson could return to his past relevant work as a laborer”).10
Furthermore, surveying the record as a whole, there was substantial evidence to support
the ALJ’s decision to rely on VE Durr’s testimony that Charkowski was capable of performing his
past relevant work as a greeter. Charkowski stated in his first Function Report that he could follow
written or spoken instructions and was able to get along with authority figures. (R. at 249–50.) In
his second Function Report, Charkowski reported that he occasionally struggled to follow spoken

10

Charkowski, in his Reply Brief, argues that this case is distinguishable from Auger v. Astrue,
for Charkowski has moderate mental limitations, whereas the plaintiff in Auger had mild to
moderate limitations. While this may be true, it is the responsibility of the ALJ to weigh the
evidence and draw factual inferences, not this Court. See Ortiz, 955 F.2d at 769.
11

instructions, but was able to follow written instructions “pretty good” and was still able to get
along well with authority figures. (Id. at 286–87.) This testimony indicates that Charkowski was
more than capable of applying “commonsense understanding to carry out instructions furnished in
written, oral, or diagrammatic form” and dealing “with problems involving several concrete
variables in or from standardized situations.” Appendix C – Components of the Definition Trailer,
1991 WL 688702 (Jan. 1, 2016).
Third, the DOT lists the “maximum requirements of occupations as generally performed,
not the range of requirements of a particular job as it is performed in specific settings.” SSR 004p, 2000 WL 1898704, at *3 (Dec. 4, 2000); see Hargrow, 2014 WL 1153782, at *16.
Charkowski’s capabilities as described in his two Function Reports, in addition to the description
he provided of his duties as a greeter, (R. at 264), provided the ALJ with substantial evidence to
find that Charkowski was capable of performing his past relevant work as a greeter “as actually
and generally performed.”11 (Id. at 31.) The ALJ could legitimately have inferred from
Charkowski’s own description of his position as actually performed that “stand[ing] at the door
greeting people at the door as they came into the store and then as they left thanking them for
shopping” could be characterized as simple, routine, repetitive work. (Id. at 264.) The SSA policy
interpretation on past relevant work states:
Under sections 404.1520(e) and 416.920(e) of the regulations, a claimant will be
found to be “not disabled” when it is determined that he or she retains the RFC to
perform:
(1) The actual functional demands and job duties of a particular past
relevant job; or

11

Charkowski’s argument that VE Durr misunderstood the second hypothetical posed is without
merit. It is clear that VE Durr perceived no conflict with a job with an SVP of three and
Charkowski’s limitation to “simple, routine, repetitive” work.
12

(2) The functional demands and job duties of the occupation as generally
required by employers throughout the national economy.
SSR 82-61, 1982 WL 31387, at *2 (Jan. 1, 1982). Given the permissive language of the policy
interpretation, it is reasonable for the ALJ to have primarily relied on Charkowski’s duties as
actually performed, not the DOT classification as generally performed.
Charkowski’s attorney was given ample opportunity to question VE Durr at the hearing,
and no argument was raised regarding a conflict between VE Durr’s testimony and the DOT
classifications. Charkowski’s failure to object to the hypotheticals at the hearing undercuts an
attack on them now. See Torres v. Sec’y of Health & Human Servs., 870 F.2d 742, 746 (1st Cir.
1989). Courts in this District have held that an ALJ’s duty to resolve conflicts in a VE’s testimony
arises only when the “inconsistencies are both ‘apparent’ and have been ‘identified’ in the
administrative hearing.” Jones v. Colvin, No. 14-12211-ADB, 2016 WL 1270233, at *7 (D. Mass.
Mar. 31, 2016) (citing Aho v. Comm’r of Soc. Sec. Admin., No. 10-40052-FDS, 2011 WL
3511518, at *14 (D. Mass. Aug. 10, 2011)). As the conflict was not identified during the hearing,
the ALJ was not obliged to explain the conflict. See Sullivan v. Colvin, No. 13-12907-FDS, 2015
WL 1308695, at *13 (D. Mass. Mar. 24, 2015) (citing Aho, 2011 WL 3511518, at *14).
C.

Any Error at Step Five was a Harmless Error

Charkowski’s third argument is futile, because the ALJ properly found Charkowski not
disabled at step four. See 20 C.F.R. § 404.1520(a)(4)(iv). (“At the fourth step, we consider our
assessment of your residual functional capacity and your past relevant work. If you can still do
your past relevant work, we will find that you are not disabled.”) Therefore, any mistakes in the
ALJ’s determination after the fourth step would be a harmless error and not provide a basis for
remand. See Valentim v. Colvin, No. 14-14103-ADB, 2016 WL 1181660, at *8 (D. Mass. Mar.
25, 2016) (stating “[b]ecause the ALJ’s step four finding is an independent basis for denying
13

Valentim’s application, any deficiencies in the ALJ’s step five finding are not grounds for
remand”); see also Ward, 211 F.3d at 656 (noting that “[a] remand is not essential if it will amount
to no more than an empty exercise”) (citations omitted).
III.

Conclusion
For all the reasons stated herein, Charkowski’s Motion to Reverse the Decision of the

Commissioner (dkt. no. 16) is DENIED, and the Commissioner’s Motion to Affirm the
Commissioner’s Decision (dkt. no. 20) is GRANTED.
The decision of the Commissioner is AFFIRMED.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

14