Derbes v. Colvin

Filing 25

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER In accordance with the foregoing,1) plaintiffs motion for judgment on the pleadings for a reversal of the Commissioners decision (Docket No. 15) is DENIED and 2) defendants motion for an order affirming the decision of the Commissioner (Docket No. 22) is ALLOWED.So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts
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Marie Derbes,
Plaintiff,
v.
Carolyn W. Colvin,
Defendant.

Civil Action No.
16-11758-NMG

MEMORANDUM & ORDER
GORTON, J.
Plaintiff Marie Derbes (“Derbes” or “plaintiff”) seeks
judicial review of the denial of her application for disability
insurance benefits by defendant, Carolyn W. Colvin (“the
Commissioner”), in her official capacity as Commissioner of the
Social Security Administration (“SSA”).

Pending before the

Court are plaintiff’s motion for judgment on the pleadings to
reverse the Commissioner’s decision and defendant’s motion for
an order affirming her decision.

For the reasons that follow,

plaintiff’s motion to reverse the Commissioner’s decision will
be denied and the Commissioner’s motion to affirm will be
allowed.

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I.

Background
A.

Employment History and Alleged Disability

Derbes was born in 1987.

She resides in Weymouth,

Massachusetts, is unmarried and has no children.

She has a high

school education and, through her school, earned a certification
in cosmetology.

She has not maintained full time employment

since 2010, but continues to work part time, 10 hours a week, at
Marshall’s department store.
government assistance.

Her main source of income is

Derbes filed an application for

supplemental security income (“SSI”) under Title XVI of the
Social Security Act, 42 U.S.C. § 1381 et seq., in June, 2013,
alleging that she was disabled.

Although she has been afflicted

by Crohn’s disease, related physical impairments and anxiety
disorder since adolescence, for purposes of her application for
disability insurance benefits, her alleged onset date (“AOD”) is
January 1, 2011, the beginning of the first year during which
she was unable to maintain full time employment.
B.

Procedural Background

Derbes’s initial application for disability benefits was
filed in June, 2013.

Her disability claim was predicated upon

her Crohn’s disease, gastroesophageal reflux disease (“GERD”),
anemia and severe anxiety stemming from those conditions.

Her

application was denied in October, 2013, and, upon
reconsideration, further denied in January, 2014.
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She filed a

request for a hearing and review of the SSA’s decision.

That

hearing was held on April 28, 2015, before Administrative Law
Judge Sean Teehan (“the ALJ”).

On May 29, 2015, the ALJ found

Derbes to be not disabled.
To determine whether an individual is disabled, the ALJ
determines whether
1) the claimant is engaged in “substantial gainful
activity”, 2) the claimant has a severe physical or
mental impairment, 3) that impairment is equivalent to
an impairment enumerated in the regulations, 4) the
claimant’s residual functional capacity (“RFC”) meets
the requirements of her previous work and 5) there are
jobs that would be appropriate for the claimant given
her RFC, age, education and work experience.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v).
During the course of his analysis, the ALJ found that
Derbes was not entitled to disability benefits.

The ALJ relied

upon the testimony before him during the disability hearing as
well as several exhibits entered into the record which contain
medical reports from doctors and health professionals.
At step one of the analysis, the ALJ deemed that Derbes was
not engaged in substantial gainful activity.

At step two, the

ALJ found that Derbes was severely impaired as a result of her
Crohn’s disease, GERD and anemia.

He then found, at step three

of the analysis, that her impairments did not meet or equal the
severity of those enumerated in Appendix 1 of 20 C.F.R. § 404
Subpart P.

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At step four, the ALJ concluded that Derbes had a residual
functional capacity (“RFC”) of “light work” with the additional
restriction that she must have ready access to restroom
facilities at all times during the workday.

The ALJ also noted

that she remains capable of performing past relevant work as a
hairstylist and salon cleaner, both of which Dr. Robert Laskey
(“Dr. Laskey”), the vocational expert assessing her case,
determined to be light work.
The ALJ proceeded to step five of the analysis to determine
if there were jobs in the general economy that Derbes could
perform.

Based on plaintiff’s age, education and work

experience Dr. Lasky identified three suitable occupations:
assembler (14,700 jobs in Massachusetts), mailroom clerk (3,800
jobs in Massachusetts) and office helper (5,900 jobs in
Massachusetts).

Citing Dr. Lasky’s testimony, the ALJ concluded

that Derbes was not disabled because there were several jobs in
the economy that she could perform.
Derbes timely appealed the ALJ’s decision but review was
denied by the Appeals Council on July 11, 2016.

She then filed

her complaint in this Court in August, 2016, alleging that the
ALJ failed to consider pertinent evidence and did not properly
conduct the analysis under 20 C.F.R. § 404.1520(a).

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II.

The Parties’ Motions
A. Legal Standard
The Act gives United States District Courts (“District

Courts”) the power to affirm, modify or reverse an ALJ’s
decision or to remand the case for a rehearing. 42 U.S.C.
§ 405(g).

A District Court’s review of an ALJ decision is not,

however, de novo. See Lizotte v. Sec’y of Health & Human Servs.,
654 F.2d 127, 128 (1st Cir. 1981).

The Act provides that the

findings of the Commissioner are conclusive if they are
“supported by substantial evidence” and the Commissioner has
applied the correct legal standard. See 42 U.S.C. § 405(g);
Seavey v. Barhart, 276 F.3d 1, 9 (1st Cir. 2001).

If those

criteria are satisfied, the Court must uphold the Commissioner’s
decision even if the record could justify a different
conclusion. Evangelista v. Sec’y of Health & Human Servs., 826
F.2d 136, 144 (1st Cir. 1987).

Substantial evidence means

evidence “reasonably sufficient” to support the ALJ’s
conclusion. See Doyle v. Paul Revere Life Ins. Co., 144 F.3d
181, 184 (1st Cir. 1998).
B.

Application

Plaintiff claims that the ALJ erred in finding her not
disabled and capable of light work because he 1) gave incorrect
weight to the opinions of certain doctors, 2) engaged in an

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improper credibility assessment and 3) made a finding not
supported by the record.
1.

The weight afforded expert opinions in the record

Plaintiff avers that the ALJ erred in weighing the medical
opinions in the record by 1) failing to give controlling weight
to the opinion of a treating physician and 2) giving significant
weight to the opinion of Disability Determination Services
medical consultant Dr. Richard Goulding (“Dr. Goulding”).

The

Commissioner denies these characterizations and maintains that
the ALJ appropriately weighed all the evidence in the record and
supported his conclusions with substantial information found
therein.
To determine whether an individual is disabled, the ALJ
must weigh several potentially conflicting medical opinions.
Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981).

In weighing opinions, the ALJ may consider

whether they are consistent with the “record as a whole”. 20
C.F.R. § 416.927(c)(4).

Where a treating source's opinion is

not treated as controlling, the ALJ determines how much weight
to afford it.

This inquiry involves multiple factors including

the length of the treatment relationship, whether the source
provided evidence in support of the opinion, whether the opinion
is consistent with the record as a whole and whether the source

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is a specialist. 20 C.F.R. § 416.927(c)(5).

The ALJ must give

“good reasons” for the weight assigned to each opinion. Id.
Plaintiff contends that Dr. Dalton’s opinion should
control, but the Court disagrees.

As noted by the ALJ, Dr.

Dalton’s opinion is entitled to less than controlling weight
because it conflicted with the record as a whole, including the
objective results of examinations and the testimony of multiple
physicians. See Reeves v. Barnhart, 263 F. Supp. 2d 154, 161 (D.
Mass. 2003) (holding that ALJ did not err in assigning less than
controlling weight to opinion of treating physician which
conflicted with objective test results in the record).

In this

way, the ALJ made clear the reasons for his decision to award
the opinion “little weight”.
In addition to inconsistencies with the plaintiff’s own
testimony, Dr. Dalton’s testimony conflicted with the opinion of
another treating physician, Dr. Paul Musto (“Dr. Musto”), who
found plaintiff to be capable of carrying on all pre-disease
performance without restriction.

Because the opinion of Dr.

Dalton was not fully consistent with other substantial evidence
in the case record, this Court is not bound to give it
controlling weight. See 20 C.F.R. § 416.927(c)(2).
By the same token, because the opinion of Dr. Goulding was
more consistent with the record as a whole, it was appropriate
for the ALJ to give significant weight to Dr. Goulding’s
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assessment of plaintiff’s residual functional capacity.

When

determining the appropriate weight to assign to each medical
opinion, the ALJ need not tick off each individual criterion
found in 20 C.F.R. § 404.927(c), so long as the ALJ’s reasoning
is sufficiently clear. See Green v. Astrue, 588 F.Supp. 2d 147,
155 (D. Mass 2008).

Though Dr. Goulding is not a

gastroenterologist, the ALJ was explicit in his decision to
award Dr. Goulding’s testimony more weight due to the fact that
it more closely aligned with the record as a whole.
The ALJ’s conclusions must be accepted so long as there is
“substantial evidence” in the record to support them. Rodriguez
Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 2 (1st Cir.
1987).

In light of evidence showing that Derbes 1) has during

various examinations reported feeling that her disease was under
control, 2) has gone years at a time without an active flare up
of her disease while taking prescribed medications, 3) has
managed to maintain a level of employment, (4) has gone lengthy
periods wherein she presented no abnormal objective findings and
5) is able to perform an array of activities including running
errands, socializing and traveling, this Court concludes that
there is substantial evidence in the record to support the ALJ’s
conclusions.

If the findings of the Commissioner of Social

Security are supported by substantial evidence, they are

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conclusive. 42 U.S.C. § 405(g).

The ALJ’s decision as to

defendant’s disability will be affirmed.
2.

The ALJ’s credibility assessment

Derbes maintains that the ALJ’s assessment of her
credibility was improperly based on irrelevant evidence or was
based on an unreasonable interpretation of the record as a
whole.

To support that contention, she raises findings made by

the ALJ regarding the longitudinal picture of her medical
impairments, the effectiveness of her medications, her
employment history, her level of activity and omissions of other
pertinent facts in the record.
Generally, the credibility determination by the ALJ is
entitled to deference, especially when supported by specific
findings, given his greater familiarity with the proceedings.
Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195
(1st Cir. 1987).

Here, this Court finds that there is

substantial evidence in the record to support the ALJ's
credibility determination.
Plaintiff takes issue with the ALJ’s reliance on medical
records predating the alleged onset date which contradicted her
claims of subjective discomfort.

This argument is unconvincing.

The contested 2008 medical record was only one piece of evidence
among many taken into account by the ALJ when reviewing her
condition prior to the AOD.

He also took into account multiple
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instances of “flares” and “isolated episodes of emergency
medical treatment” when assessing the longitudinal picture of
plaintiff’s history with Crohn’s and her related conditions.
The same is true of the ALJ’s findings after the AOD.
Plaintiff suggests that the ALJ did not take into account the
entire record by omitting plaintiff’s history of perianal
abscesses necessitating surgery and stomach upset resulting from
changes in medication.

However, an examination of the ALJ’s

decision reveals that he clearly alluded to those complications
when summarizing the entirety of her medical history.

The ALJ

did not claim that her medical history was one without pain or
discomfort.

Rather he found that the pain and discomfort which

accompanied her condition did not leave her unable to engage in
a life that included travel, chores, socializing and,
presumably, a level of employment.
In assessing the plaintiff’s credibility the ALJ relied
extensively on her own statements, noting that many of her
reports of subjective pain were unsupported by corresponding
objective medical test results.

To the extent that the record

contains conflicting opinions and reports from multiple
physicians, it is not this Court’s place to resolve the question
of whose learned opinion is most accurate.
responsibility of the ALJ

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Rather, it is the

to find facts, decide issues of credibility, draw
inferences from the record, and resolve conflicts of
evidence.
Teague v. Colvin, 151 F.Supp.3d 223, 226 (D. Mass. 2015).

The

ALJ was thorough in his examination of the record and specific
in his reasons for valuing certain objective findings over the
plaintiff’s subjective claims.

Accordingly, this Court finds no

reason to reverse them.
3.

The ALJ’s excessiveness determination

Derbes takes issue with the ALJ’s finding that she
may need to use the restroom but not for an excessive
amount of time such as would not be tolerated in fulltime, competitive employment.
The ALJ did not rely on the record in support of his statement
that 45 minute bathroom use is not excessive.

However, the RFC

did fully account for the plaintiff’s need for constant, ready
access to a restroom.

Although this Court is ambivalent about

the ALJ’s conclusion regarding the excessiveness of plaintiff’s
bathroom use, that is not cause to vacate his decision. See
Evangelista, 826 F.2d at 144 (holding that even if the record
could justify a different conclusion, the decision of the ALJ
must be affirmed if supported by substantial evidence).
4.

The RFC’s inclusion of restroom accessibility

Plaintiff questions the inclusion of restroom availability
in the RFC, rightly pointing out that 29 C.F.R. §
1910.141(c)(1)(i) already guarantees access to a restroom at a
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place of employment.

However, that does not affect plaintiff’s

RFC which clearly stipulated that not only did she need access
to a restroom but also that such access be readily available out
of deference to her condition.

ORDER
In accordance with the foregoing,
1)

plaintiff’s motion for judgment on the pleadings for a
reversal of the Commissioner’s decision (Docket
No. 15) is DENIED and

2)

defendant’s motion for an order affirming the decision
of the Commissioner (Docket No. 22) is ALLOWED.

So ordered.
/s/ ___Nathaniel M. Gorton__
d
Nathaniel M. Gorton
United States District Judge
Dated September 20, 2017

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