Joyce v. Colvin

Filing 24

Judge Richard G. Stearns: ENDORSED ORDER entered. ORDER ON REPORT AND RECOMMENDATIONS Action on motion: ; denying 14 Motion to Remand; granting 18 Motion for Order Affirming Decision of Commissioner; adopting Report and Recommendations re 21 Report and Recommendations. (Attachments: # 1 Report and Recommendations)(Caruso, Stephanie)

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 1 of 34

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JEROME P. JOYCE,
Plaintiff,
v.
No. 16-cv-11891-RGS
NANCY A. BERRYHILL
in her official capacity as
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.

REPORT AND RECOMMENDATION ON PLAINTIFF JEROME P. JOYCE’S MOTION
TO REVERSE OR REMAND THE DECISION OF THE COMMISSIONER (Dkt. No.
14), AND ON DEFENDANT’S MOTION FOR AN ORDER AFFIRMING THE
DECISION OF THE COMMISSIONER (Dkt. No. 18)
CABELL, U.S.M.J.:
Jerome P. Joyce (“the plaintiff” or “Joyce”) moves to reverse
or remand a final decision by the Commissioner of Social Security
(“the Commissioner”) 1 denying his application for Social Security
Disability

(SSD/Title

II)

benefits.

(Dkt.

Commissioner cross-moves to affirm its decision.

No.

14).

The

(Dkt. No. 18).

After careful consideration of the record, and as discussed below,
I find the plaintiff’s arguments to be without merit.

I therefore

recommend that the plaintiff’s motion to reverse or remand be
DENIED, and that the Commissioner’s motion to affirm be GRANTED.

1

When this case was originally filed, Carolyn W. Colvin was the Commissioner
of Social Security. Since then, Nancy A. Berryhill has succeeded her as Acting
Commissioner of Social Security. Pursuant to Fed. R. Civ. P 25(d), Berryhill
is automatically substituted as the defendant.

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 2 of 34

I.

PROCEDURAL HISTORY
On

December

16,

2013,

Joyce

disability insurance benefits (DIB).

filed

an

application

(Dkt. No. 11-2, p.21). 2

for
On

April 25, 2014, the Social Security Administration (SSA) denied
the application, and then denied it again after the plaintiff
requested a reconsideration, on August 28, 2014.

(Id.).

On

September 5, 2014, the plaintiff filed a request for a hearing
before an Administrative Law Judge (ALJ).
the hearing on December 2, 2015.

(Id.).

(Id.).

The ALJ held

On January 20, 2016, the

ALJ found that the plaintiff was not disabled as of the date last
insured.

(Id. at 34).

The plaintiff appealed, and the Appeals

Council affirmed the ALJ’s decision on August 1, 2016, making that
decision the Commissioner’s final decision.
September

16,

2016,

the

plaintiff

challenging the denial of his benefits.
II.

(Id. at 2, 7).

initiated

this

On

action

(Dkt. No. 1).

FACTS
a. The Plaintiff’s Personal and Employment History
Joyce was born in 1958.

(Dkt. No. 11-6, p.2).

He graduated

from high school and subsequently became a licensed low voltage
electrician. (Dkt. No. 11-2, p.51-52). According to the testimony
of

a

vocational

expert

(VE),

Joyce

2

was

a

protective

signal

Citations to the record will first be to the specific docket and attachment
number (here, Dkt. No. 11-2). Then, within each PDF attachment, page citations
will be to the court stamped page number at the top of the PDF (here, 21 (of
105)) rather than to any other internal numbering system.

2

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 3 of 34

installer, considered a “skilled” job, and performed it at the
medium exertional level.

(Id. at 87).

b. The Plaintiff’s Relevant Medical Treatment
Because Joyce was only insured for DIB purposes through
December 31, 2011, the success of his application depended on his
being able to demonstrate that he was disabled as of that date.
Joyce contended that his onset date of disability was much earlier,
on September 1, 2010, so most of the litigation below revolved
around the plaintiff’s treatment during the period September 1,
2010 to December 31, 2011.

The parties appear to agree that this

time period remains the relevant time period for purposes of this
court’s review.

Accordingly, the court focuses primarily on that

time period (as the ALJ did as well), noting other relevant
treatment or evidence outside the time period as appropriate.
Broadly speaking, Joyce received treatment in three areas, to
address (1) psychiatric issues, (2) sleep-related problems, and
(3) physical pain.
1. Psychiatric Treatment
Joyce received psychiatric treatment at various times, albeit
not during the relevant time period.
relevant

period,

Joyce

received

Many years prior to the

psychiatric

treatment

from

December 1997 through April 1999 at Lahey Clinic, following his
wife’s stroke in 1996.
Dkt. No. 11-2, p.60).

(Dkt. No. 11-14, p.43-60, 62-65, 67-78;
Those notes are largely illegible but it
3

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 4 of 34

appears that Joyce was treated for major depressive disorder
(“MDD”).

(Dkt. No. 11-14, p.43).

that the “MDD [had] improved.”

The final notes in 1999 indicate

(Dkt. No. 11-14, p.78).

The record

does not reveal any other psychiatric treatment from 1999 through
the relevant period ending in December 2011.
In terms of treatment after the relevant time period, the
record reflects a mental health evaluation in 2015.

On June 7,

2015, Joyce saw psychologist Dr. Einat Grunfeld on a referral to
assess depression.

(Dkt. No. 11-13, p. 32).

The notes indicate

that Joyce had also been treated for MDD in 2003, but there are no
supporting records from that time period.

(Id.).

Dr. Grunfeld

indicated a diagnostic impression of MDD recurrent, moderatesevere.

(Id. at 33).

Dr. Grunfeld referred Joyce to Dr. Neil

Weiser, a psychiatrist, and on June 24, 2015, Dr. Weiser diagnosed
a depressive disorder, not otherwise specified, and assigned a
global assessment of functioning of 63.

(Id. at 39-41).

2. Sleep Treatment
Joyce suffered from sleep problems and in 2007 was referred
to an otolaryngologist for treatment.

(Dkt. No. 11-11, p.126).

In May of 2007 a sleep study revealed that he suffered from severe
sleep apnea.
sleep

3

apnea,

(Id. at 124).
including

Joyce was treated throughout 2008 for
through

use

of

CPAP stands for Continuous Positive Airway Pressure.

4

a

CPAP 3

machine.

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 5 of 34

Unfortunately, while the CPAP was effective, Joyce was unable to
tolerate the treatment.

(Id. at 108, 110-111).

Joyce subsequently underwent sinus surgery in 2009.

The

surgery dramatically improved his sleep apnea, and a postoperative
study seven weeks later showed only mild obstructive sleep apnea.
(Id. at 62, 74, 99-103; Dkt. No. 11-9, p.57).

However, multiple

follow up visits throughout the year indicate that Joyce continued
to be symptomatic.

(Dkt. No. 11-9, p.48, 57; Dkt. No. 11-11, p.86-

87, 95-96).
Joyce continued to be symptomatic as of September 2010.

It

was noted that he possibly had persistent obstructive sleep apnea,
but that he was also noncompliant with and unable to tolerate CPAP.
(Dkt. No. 11-8, p.131; Dkt. No. 11-9, p.48; Dkt. No. 11-11, p.62,
66).

In October 2010, Joyce had a severely abnormal sleep test.

(Dkt. No. 11-8, p. 118).

Consequently, in November 2010, his

doctor suggested he would benefit from CPAP and Joyce agreed to
reinitiate treatment. (Dkt. No. 11-9, p.44; Dkt. No. 11-11, p.58).
In December 2010 Joyce had another sleep test which indicated that
CPAP was effective at relieving all of the obstructive events.
(Dkt. No. 11-9, p.38; Dkt. No. 11-11, p.49).
In March of 2011 it was noted that Joyce had been using an
auto CPAP machine and was tolerating it fairly well.

(Dkt. No.

11-11, p.35). In August of 2011, Joyce’s doctor noted that Joyce’s
obstructive sleep apnea was stable due to his excellent compliance
5

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 6 of 34

with his CPAP machine.

(Dkt. No. 11-9, p.11; Dkt. No. 11-11, p.

18-19). In November 2011 his doctor noted that Joyce was compliant
with his auto CPAP but nonetheless continued to have excessive
sleepiness, and did not feel any more alert during the day.

(Dkt.

No. 11-8, p.135; Dkt. No. 11-11, p.2, 8).
3. Pain Treatment
Joyce suffered from migraines, beginning in his 30s and
continuing for about a decade (i.e., the 1980s).
11, p.37, 54, 60, 64; Dkt. No. 11-9, p.30, 41).

(Dkt. No. 11-

He began suffering

from migraines again in September 2010, when he began to have three
to five migraines per month.
11, p.37).

(Dkt. No. 11-9, p.39; Dkt. No. 11-

When the migraines became worse at the end of 2010 and

into 2011, Joyce was prescribed Topamax.

(Dkt. No. 11-8, p.138;

Dkt. No. 11-9, p.39; Dkt. No. 11-11, p.41, 51, 53, 55-56).

The

Topamax seemed to control Joyce’s symptoms reasonably well and his
condition greatly improved by March 2011.

(Dkt. No. 11-9, p.39;

Dkt. No. 11-11, p.11).
Joyce also suffered from low back pain.

As of January 2011,

Joyce claimed to have suffered from the condition for five years,
and he complained then of a flare of right sided pain and decreased
strength in the right leg and hip, although the symptoms were not
considered alarming.
48).

(Dkt. No. 11-9, p.35; Dkt. No. 11-11, p.45,

He was given a lidocaine patch and by June 2012 his back

pain was considered to be an intermittent issue.
6

(Dkt. No. 11-

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 7 of 34

11, p.48; Dkt. No. 11-8, p.114).
Joyce also experienced periodic abdominal pain.
clinical

examination

and

colonoscopy,

diverticulitis in July 2010.

he

was

Following a

diagnosed

with

(Dkt. No. 11-11, p.60, 67-68, 70;

Dkt. No. 11-9, p.50-51, 53-54).
Finally, in October 2011 Joyce visited a doctor complaining
of increased pain in both feet bilaterally, stating that over the
last few years the pain had been getting increasingly worse.
Several years earlier, in 2002, Joyce had been diagnosed with
bilateral hallux rigidus related to pain in his big toe.
No. 11-9, p.4).

(Dkt.

Physical examination and x-rays showed bone spurs

and a moderate amount of osteoarthritis. (Id. at 5).
c. (Non-agency) Medical Opinion Evidence
Joyce saw many different professionals over the course of
several years.

Two in particular provided opinions that are

relevant here.

Dr. Michael C. Berarducci, the plaintiff’s long-

time treating physician, opined in 2015 that the plaintiff, based
principally on physical ailments, is disabled and had been unable
to work since 2008.

Given the timing, Dr. Berarducci presumably

offered his opinion in support of the plaintiff’s administrative
hearing before the ALJ.
Dr. Herbert Golub, a psychologist, evaluated the plaintiff in
2014; it is unclear how the plaintiff came to see him, although it
is presumed it too was in anticipation of the hearing before the
7

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 8 of 34

ALJ.

Dr. Golub concluded that the plaintiff suffers from major

depressive disorder.
1. Dr. Berarducci
Opinion

(Lahey

Clinic):

Treating

Source

Dr. Berarducci was the plaintiff’s primary care physician
both before and after his date last insured (December 31, 2011),
and he wrote a treating source statement, on March 19, 2015.
No. 11-12, p.102-103).
“systemic

illness

with

(Dkt.

Dr. Berarducci reported that Joyce had
fatigue,

arthralgias

and

generalized

weakness,” “migraine headaches and depression dating back many
years and likely before 2001,” and “depression and ongoing symptoms
including emotional lability and difficulty working with people.”
(Id. at 102). He also reported that Joyce suffered “from recurrent
arthritis and fevers on a weekly basis,” “obstructive sleep apnea”
“severe daytime somnolence,” “severe fatigue during the day” and
a lack of alertness because of it.

(Id.).

Dr. Berarducci also

noted that Joyce had severe low back pain due to degenerative disc
disease, and severe neck pain due to “severe central canal stenosis
at C4-5.”

(Id.).

Dr. Berarducci concluded:

In summary, Mr. Joyce has a number of serious medical
problems impairing his ability to work. He has been
unable to work since 2008. I would consider him totally
disabled. I do not feel he can participate in any
meaningful work at this time. He is unable to
concentrate. His physical limitations include being
unable to sit or stand for more than 20 minutes at a
time without difficulty. His cervical spine stenosis
makes it difficult for him to use his hands.

8

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 9 of 34

(Id.).
2. Herbert Golub, Ph.D.: Psychological Testing and
Evaluation
Dr. Golub was not one of the plaintiff’s treating physicians.
Rather, he evaluated the plaintiff on December 23, 2014, for
diagnosis

clarification,

treatment

assessment of residual functioning.

recommendation,

and

an

(Dkt. No. 11-12, p.93).

Dr.

Golub was able to obtain and review records from the Lahey Clinic
which spanned from 2001 through December 2014, but these records
related primarily to physical problems; the plaintiff claimed to
have been seen by a mental health person at Lahey at some point in
the past but no such records were able to be found.

(Dkt. No. 11-

12, p.94).
Dr. Golub found that the plaintiff had high average to above
average intelligence, but noted that there were “evident, at least
mild, memory problems.” (Id. at 96).

He noted that Joyce was

easily upset and agitated, quite self-critical, and extremely
insecure. (Id.).

He also noted that Joyce appeared to have a high

level of “free-floating anxiety.” (Id.).

Dr. Golub stated that

there were no suggestions of evident psychosis but he saw the
plaintiff “as a man who was overwhelmed by his life, namely his
losses, his wife’s illnesses, his own decompensated self, and his
inability to work.”

(Id. at 97).

9

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 10 of 34

Dr. Golub noted that Joyce’s WAIS-IV 4 results had “a wide
range of skills and deficiencies, quite typical of individuals who
might have substantial psychiatric and/or neurological/physical
problems.”

(Id. at 97).

As such, he found that Joyce’s “residual

intellectual ability is considered to be higher … than his measured
memory skills.” (Id.).

Dr. Golub also observed that Joyce’s

“memory functioning and various emotional/characterological areas
seem to be significantly impaired.” (Id. at 98).

Dr. Golub also

found that Joyce appeared to have decompensated quite remarkably
emotionally, to the level of individuals with no more than below
average

level

intelligence

and

who

are

no

more

than

early

adolescents. (Id. at 99). He found that Joyce’s depression “seemed
to be quite well established.” (Id.). Ultimately, Dr. Golub found
that the plaintiff had “very limited residual functional skills.”
He opined that the level of Joyce’s “disabling condition” traced
back several years, to 2010 or earlier.

He concluded that Joyce’s

prognosis for significant improvement was “quite poor” without
appropriate treatment.
Lastly,

Dr.

Golub

(Id. at 100).
also

reviewed

Joyce’s

related to prior mental health treatment.
Dkt. No. 11-14, p.98).

medical

records

(Dkt. No. 11-12, p.94;

Dr. Golub noted that records from Lahey

Clinic from 2001 through 2014 indicated that Joyce was treated for

4

WAIS-IV stands for Wechsler Adult Intelligence Scale-Fourth Edition. It is an
IQ test designed to measure intelligence and cognitive ability in adults and
older adolescents.

10

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 11 of 34

a multitude of physical problems.

(Dkt. No. 11-12, p.94).

Dr.

Golub noted that Lahey medical staff in 2002 indicated a diagnosis
of major depressive disorder, but noted that this diagnosis was
not given by mental health staff.

(Dkt. No. 11-12, p.94).

Dr.

Golub gleaned several psychiatric symptoms from these records,
including a sleep disorder, irritability, ‘declining mood,’ and
problems

with

addition,

concentration,

chronic

fatigue

motivation,
and

and

anhedonia

tenseness.

were

said

In

to

be

characteristic and several anti-depressants had been prescribed.
(Id.). Dr. Golub characterized the plaintiff’s prior mental health
treatment as “fleeting, and not significant.”

(Id. at 96).

He

noted that Joyce had only a few sessions in the 90s and in
2003/2004, and was never put on any medication.

(Id.).

After

reviewing additional records dating over the past twenty years,
Dr. Golub concluded that major depressive disorder was likely
present then and throughout Joyce’s working career.

(Dkt. No. 11-

14, p.99).
d. Other Evidence
The plaintiff also submitted a 2014 letter from a former coworker, Michael Sirois.

Sirois described his observation of the

plaintiff’s condition through 2008.

He stated that Joyce cared

for his wife and young daughter in the 1990s while maintaining a
high level of functionality in his professional work.

He noted

that by the early 2000s the plaintiff was stressed out, suffering
11

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 12 of 34

from

migraines,

personality

and

changed,

depressed.
that

he

He

also

appeared

noted

burned

that
out,

Joyce’s
that

he

complained of pain in his feet and neck, had trouble sleeping, and
consequently was often sluggish at work.

In Sirois’s view, the

plaintiff’s pace, persistence, and concentration were markedly
impaired by 2008.

(Dkt. No. 11-6, p.39).

e. State Agency Medical Opinion Evidence
Several state agency professionals reviewed the plaintiff’s
file and offered opinions as to whether he was disabled.

Two

professionals offered opinions in connection with his initial
application for benefits and, after it was denied, two more offered
opinions in connection with his request for a reconsideration.
Regarding the plaintiff’s initial application, Bich Duong,
M.D., a non-examining state agency physician, opined on April 23,
2014 that Joyce’s physical impairments were non-severe through the
date last insured.

(Dkt. No. 11-3, p.6).

As to his mental health,

Lawrence Fieman, Ed.D., a non-examining state agency psychologist,
opined on April 24, 2014 that there was no mental medically
determinable impairment established before the date last insured.
(Id. at 7).

Dr. Fieman also noted that there were no psychology-

related documents in the medical records and no psychological
diagnosis prior to the date last insured.

(Id.).

The SSA denied the plaintiff’s initial application just after
receiving these opinions, on April 25, 2014.
12

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 13 of 34

With respect to the plaintiff’s request for reconsideration
of his application, Henry Astarjian, M.D., a non-examining state
agency physician, opined on August 19, 2014 that the plaintiff, as
of the date last insured, retained the ability to lift and/or carry
20 pounds occasionally and 10 pounds frequently, sit and stand
and/or walk for six hours in an eight-hour workday, and push and/or
pull without limitation.

(Id. at 15-16).

Dr. Astarjian further

opined that the plaintiff could frequently climb ramps and stairs,
kneel, crouch, crawl, occasionally climb ladders/ropers/scaffolds,
stoop, and balance without limitation. (Id. at 16).
Also on August 19, 2014, Menachem Kasdan, Ed.D., a nonexamining state agency psychologist, found that the plaintiff had
no mental medically determinable impairments.
Dr.

Kasdan

also

noted

that

there

were

no

(Id. at 14-15).
psychology-related

documents in the medical records and no psychological diagnosis
prior to the date last insured.

(Id.).

f. The Administrative Hearing Before the ALJ
Following the denial of the request for reconsideration, the
plaintiff

requested

an

administrative

convened on December 2, 2015.

hearing,

which

the

ALJ

(Dkt. No. 11-2, p.21).

1. The plaintiff’s testimony
The plaintiff testified at the hearing and, in general,
testified to suffering several physical ailments while trying at
the same time to care for his wife and manage the household.
13

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 14 of 34

Among other things, the plaintiff testified that his wife had
a stroke in 1996 and that he alone cared for her and his daughter.
(Id. at 62).

He stated that he began suffering from migraine

headaches in 1996/1997, and that they progressively worsened each
year.

(Id. at 63).

He stated that in 2010 his migraines became

intense and he was treated with Topomax.
medication

reportedly

helped

but

(Id. at 64-66).

there

including impaired speech. (Id. at 66).

were

side

The

effects,

The plaintiff testified

that he suffered a migraine per month and each would last into the
next day.
The

(Id. at 67).
plaintiff

also

testified

that

he

had

problems

standing, gripping with his hands, and moving his neck.
73-75).

with

(Id. at

He also testified that he had sleep apnea going back to

2007, longstanding back pain that came and went, and pain in his
left toe that he could not treat through surgery for fear he would
not be able to care for his wife if off his feet for a period.
(Id. at 75-79).
The plaintiff stated that since 2010, he cared for his wife,
took care of the house, cleaned, cooked, and performed maintenance.
(Id.).

He also reported that he drove, but not at night because

of poor vision.

(Id. at 81).

14

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2. Vocational expert
A vocational expert was asked to consider the work capacity
of

an

individual

ladders,

ropes,

who:
and

was

limited

scaffolds;

to

needed

occasional
to

avoid

climbing

of

concentrated

exposure to hazards, including dangerous moving machinery and
unprotected heights; could understand, carry out, and remember
simple and detailed instructions; and could have brief superficial
interactions with the general public, co-workers, and supervisors.
(Id. at 87-88).

The vocational expert testified that such an

individual could perform the light work of packaging and inspector,
and the medium work of packaging and assembler.

(Id. at 88-89).

The vocational expert added that an individual who was additionally
limited to light work with frequent climbing of stairs and ramps,
occasional climbing of ladders, ropes, and scaffolds, occasional
stooping, and frequent kneeling, crouching, and crawling could
perform the light work identified (Id. at 89).
g. The ALJ’s Findings
On January 20, 2016, the ALJ found that the plaintiff was not
disabled from September 1, 2010, through the date last insured
(December 31, 2011). (Dkt. No. 11-2, p.21, 34).

The ALJ noted

that disability is defined as “the inability to engage in any
substantial

gainful

determinable

physical

activity
or

by

mental

reason

impairment

of

any

medically

or

combination

of

impairments that can be expected to result in death or that has
15

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 16 of 34

lasted or can be expected to last for a continuous period of not
less than 12 months.”

(Dkt. No. 11-2, p.21).

The ALJ noted that

to satisfy the insured status requirements of the Social Security
Act, the claimant must establish disability on or before the date
last insured.

(Id.).

The ALJ applied the required five-step

evaluation process in determining that the plaintiff did not meet
this standard.

(Id. at 22).

Step one considers whether the plaintiff is engaging in
substantial gainful activity (“SGA”), because a claimant who is so
engaged is not disabled.

20 CFR § 416.920(b).

SGA is defined as

work activity done for pay that involves doing significant physical
or mental activity.

20 CFR § 416.972(a).

The ALJ found that the

plaintiff had not engaged in SGA from his alleged onset date of
September 2010 through his date last insured of December 31, 2011,
and therefore moved on to step two.

(Dkt. No. 11-2, p.23).

Step two considers whether the plaintiff suffers from one or
more impairment(s) that would be considered severe as defined by
the pertinent regulations.

20 CFR § 416.920(c).

Relevant here,

the ALJ found that the plaintiff did have some severe impairments
through the date last insured, including degenerative disc disease
of the lumbar spine, obstructive sleep apnea, and migraines, but
determined that the plaintiff’s psychological limitations did not
constitute a severe impairment.

(Id.).

In making the finding that the plaintiff’s mental impairments
16

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 17 of 34

were not severe, the ALJ gave greater weight to the opinions of
the state agency mental health consultants, noting that they were
specifically

empowered

to

make

judgments

regarding

whether

a

person has the severity of symptoms required to meet or equal
conditions

found

under

404.1527(f)(1). (Id.).
during

the

period

consultants. (Id.).

the

medical

Listings

in

20

CFR

The ALJ noted that the medical records

supported

the

opinion

of

the

state

agency

While the records showed that the plaintiff

received mental health treatment on and off prior to the alleged
onset date of disability, the ALJ noted that Dr. Berarducci, one
of

the

claimant’s

treating

physicians,

reported

that

his

neurological and psychological systems were within normal limits
in September 2011. (Id. at 25).
The ALJ also considered the opinion of Dr. Herbert Golub, the
psychologist who evaluated Joyce in 2014 and opined that he had
likely suffered from major depressive disorder for several years,
but ultimately gave little weight to his opinion, because it was
inconsistent with the medical treatment that the claimant actually
sought and received during the relevant period.

(Id.).

She noted

that multiple treatment notes from the relevant period indicate
that Joyce was bright, alert, articulate, and fully oriented, and
on multiple occasions claimed no neurological or psychological
issues. (Id.).
The ALJ further noted that Dr. Grunfeld, the claimant’s
17

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 18 of 34

treating psychologist in 2015, indicated that the plaintiff had
several years earlier been treated with Wellbutrin in 2003, and
found it to be helpful. (Id.).

Joyce also told Dr. Grunfeld that

he did not receive any mental health therapy and stopped taking
the medication after he felt better. (Id.).

The ALJ noted that

Dr. Grunfeld did not find any evidence of psychosis, and that Dr.
Grunfeld’s findings suggested that the plaintiff’s psychological
condition had not been significantly limiting given that he was
able to care for his wife since she became disabled in the 90s.
(Id.).
Finally, the ALJ also considered the four broad functional
areas set out in the disability regulations for evaluating mental
disorders, and in section 12.00C of the Listing of Impairments,
also known as the Paragraph B criteria. (Id.).

In the first

functional area, “daily living,” the ALJ noted that the plaintiff
had no limitations. (Id.).
functioning,”

the

limitations. (Id.).

ALJ

In the second functional area, “social
found

that

the

plaintiff

had

mild

She noted that while he maintained a good

relationship with his wife and daughter, he had difficulty being
around other people. (Id.).

The ALJ also found mild limitations

in the third functional area, “concentration, persistence, and
pace.” (Id. at 26).

She noted that the plaintiff testified that

he had difficulty concentrating, but also stated that he had been,
and continued to be, the primary caregiver for his wife. (Id.).
18

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 19 of 34

The ALJ noted that it was unlikely that Joyce would have been able
to care for his wife and at the same time have severe limitations
in this area. (Id.).

She did note that Dr. Golub assigned a global

assessment of functioning rating of 45, which indicates serious
symptoms

or

impairments

functioning. (Id.).

in

social,

occupational,

or

school

However, she also noted that Joyce’s ability

to care for his disabled wife, and lack of mental health treatment
and complaint prior to the date last insured, were inconsistent
with that opinion. (Id.).

The ALJ concluded that the claimant had

no more than mild limitations in this area.

The fourth functional

area is “episodes of decompensation,” and the ALJ found that Joyce
had not experienced any such episodes. (Id.).

In sum, the ALJ

determined that because the plaintiff’s medically determinable
mental impairment caused no more than mild limitation in any of
the first three areas, and effected no episodes of decompensation
in the fourth area, any mental impairment the plaintiff may have
had was non-severe.

(Id.).

But, because the ALJ as noted above determined that the
plaintiff

did

otherwise

have

severe

impairments

relating

to

degenerative disc disease of the lumbar spine, obstructive sleep
apnea, and migraines, she moved on to step three. 5

5 In addition to the severe impairments the ALJ did find, she also considered a
myriad of other physical issues for which the plaintiff was treated, but
determined these to be non-severe, or non-determinable medical impairments
during the period at issue. She noted that the plaintiff was also treated for
hypertension,
hyperlipidemia,
rosacea/actinic
keratosis,
diverticulitis,

19

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 20 of 34

Steps three, four and five operate in tandem.

Step three

requires the ALJ to consider whether the plaintiff’s impairments
taken together are severe enough to meet or medically equal the
criteria of an impairment listed in 20 CFR Part 404, Subpart P,
Appendix 1.

20 CFR §§ 416.920(d), 416.925, and 416.926.

the claimant is conclusively presumed to be disabled.

If so,

If not, one

moves to step four to consider whether the applicant’s residual
functional capacity (“RFC”) allows him to perform his past relevant
work. If the claimant is capable of performing past relevant work,
he is not disabled.

If the claimant’s RFC in step four does not

allow him to perform his past relevant work, the burden shifts to
the Commissioner in step five to prove that the claimant “is able
to perform other work in the national economy in view of [the
claimant’s] age, education, and work experience.”

20 C.F.R. §§

404.1520(a)(4)(iii-v).
Here, the ALJ concluded at step three that the plaintiff did
not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in

erectile dysfunction, and osteoarthritis of the large toes. (Id. at 24). The
ALJ determined that these impairments were non-severe because there was little
evidence that these impairments resulted in more than minimal limitation on
Joyce’s ability to perform his work-related activities. (Id.). The ALJ also
noted that the plaintiff’s medical records contained evidence of treatment for
persistent left knee and neck pain, and irregular astigmatism of the eyes, but
noted also that these issues occurred many years after the date last insured.
(Id.). She also noted that the plaintiff’s vision problems did not hinder his
ability to drive or perform other visual activities such as caring for his
disabled wife, and in fact resolved in 2010. (Id.).

20

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 21 of 34

20 CFR Part 404, Subpart A, Appendix 1.

(Id. at 26).

The ALJ

explained that, although the claimant had impairments that were
considered
combination,

severe,
with

they
the

were

not

specific

attended,

clinical

singly

signs

and

or

in

diagnostic

findings required to meet or equal the requirements set forth in
the Listing of Impairments.

(Id.).

She also noted that no

treating or examining physician indicated any such findings. 6
(Id.).
As required, the ALJ then proceeded to step four to determine
whether the plaintiff nonetheless lacked the RFC to perform his
past relevant work.

The ALJ found that the plaintiff had the RFC

to perform medium work as defined by 20 CFR § 404.1567(c).
No. 11-2, p.27).
determinable

(Dkt.

The ALJ found that the claimant’s medically

impairments

were

likely

to

cause

the

physical

symptoms alleged, but that Joyce’s “statements concerning the
intensity, persistence and limiting effects of these symptoms
[we]re not entirely credible….”

(Id. at 28).

6

After a thorough

To be clear, the ALJ did consider Listing 1.04, disorders of the spine. She
noted that while the medical records showed the presence of degenerative disc
disease, they did not show evidence of nerve root compression, spinal
arachnoiditis, or lumbar spinal stenosis. (Id. at 26-27). She also considered
the claimant’s sleep apnea under section 3.10, noting that the symptoms from
sleep apnea are evaluated under section 3.09, which deals with pulmonary artery
pressure.
(Id. at 27).
She noted that in order to meet that listing, the
claimant must have either cor pulmonale caused by chronic pulmonary vascular
hypertension, or severe cognitive impairment caused by lack of sleep. (Id.).
The ALJ noted that the records indicated that the plaintiff’s sleep apnea
significantly improved after surgery in 2009 and with the use of a sleep-aid
machine. (Id.). As such, she found that his sleep apnea did not meet or equal
the impairments in this listing. (Id.).

21

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 22 of 34

review of the medical evidence, the ALJ concluded that the evidence
pertaining to the plaintiff’s physical health revealed essentially
normal

findings

during

the

period

at

issue.

(Id.

at

29).

Nonetheless, giving him the benefit of the doubt, she assigned a
limitation to medium work with postural restrictions.

(Id. at

30).
Regarding the plaintiff’s sleep disorder, the ALJ noted that
the record did not support the severity or frequency of episodes
he alleged.

(Id.).

She noted that the treatment notes prior to

the date last insured indicated that his neurological and sleep
apnea symptoms and limitations were not as severe as alleged, and
found the credibility of his allegations of the severity of his
sleep deficiency and headaches to be diminished because they were
greater than expected in light of the objective evidence of the
record.

(Id.).

The ALJ gave partial weight to the opinion of Dr. Astrarjian,
who opined that the plaintiff suffered from degenerative disc
disease but could still perform light work with some postural
limitations.

(Id.).

The ALJ noted that Joyce had been the primary

caregiver for his disabled wife for the past twenty years, and
found that his ability to do so meant that he was able to perform
at least medium exertion tasks during the relevant period.
at 31).

(Id.

Conversely, the ALJ gave no weight to the opinion of Dr.

Berarducci, the claimant’s treating physician, because his opinion
22

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 23 of 34

was not only inconsistent with his own examination findings during
the relevant period, but also inconsistent with the plaintiff’s
ability to be his disabled wife’s primary caregiver.

(Id.).

After considering all of the evidence, the ALJ, as noted,
concluded that the plaintiff was capable of performing medium work
with some limitations during the relevant period.
That being said, the ALJ concluded that the plaintiff was not
able to perform any past relevant work pursuant to 20 CFR §
404.1565, based principally on the vocational expert’s testimony
that

a

hypothetical

person

with

the

plaintiff’s

relevant

characteristics would not be able to perform the plaintiff’s past
relevant work as a Protective Signal Installer.

(Id. at 30-31).

The ALJ thus turned to step five, which puts the burden on
the Commissioner to prove that the claimant is still “able to
perform

other

work

in

the

national

economy

in

view

of

[the

claimant’s] age, education, and work experience.”

20 C.F.R. §§

416.912(g)

although

and

416.920(c).

The

ALJ

found

that

the

plaintiff was not able to perform any past relevant work through
the date last insured, there were jobs that existed in significant
numbers in the national economy that the claimant could perform.
(Id. at 32).

The ALJ concluded that Joyce therefore was not under

a disability as defined by the Social Security Act as of the date
last insured.

(Id. at 33).

23

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 24 of 34

III. DISCUSSION
The plaintiff argues that the ALJ committed two reversible
errors.

He argues first that the ALJ improperly ignored evidence

supporting

a

disability

based

on

mental

health,

substituted her own lay conclusion to the contrary.

and

instead

Presumably,

the plaintiff argues that the ALJ erred at step two when she
determined that his mental health related issues did not constitute
a severe impairment.

The plaintiff argues also that the medical

evidence was ambiguous as to the onset date of his disability, and
the ALJ therefore erred when she failed under SSR 83-20 to consult
with a medical expert to resolve the ambiguity.
The Commissioner argues that there was substantial evidence
to

support

the

ALJ’s

determination

that

the

plaintiff’s

psychological limitations did not amount to a severe impairment.
The Commissioner also argues that SSR 83-20 is not implicated on
the facts of this case and, even assuming it were, it was not
necessary to consult a medical expert because the medical evidence
regarding onset disability was not ambiguous.
a. Standard of Review
A court reviews the findings of an ALJ only to determine
whether the findings are supported by substantial evidence, and
whether the correct legal standard was applied.
151 F. Supp. 3d 1, 2 (D. Mass. 2015).

Teague v. Colvin,

Substantial evidence to

support a decision exists if “a reasonable mind, reviewing the
24

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 25 of 34

evidence in the record as a whole, could accept it as adequate to
support his conclusion.” Id.

This Court must keep in mind when

applying this standard of review that it is the role of the ALJ,
and not this Court, to find facts, decide issues of credibility,
draw inferences from the record, and resolve conflicts of evidence.
Ortiz v. Secretary of Health and Human Servs., 955 F.2d 765, 769
(1st Cir. 1991).

This Court may affirm, modify, or reverse the

ALJ’s decision, but reversal is only warranted if the ALJ made a
legal or factual error in evaluating the plaintiff's claim, or if
the record contains no “evidence rationally adequate … to justify
the conclusion” of the ALJ.

Roman–Roman v. Commissioner of Soc.

Sec., 114 Fed. Appx. 410, 411 (1st Cir. 2004).

This Court

therefore must affirm the ALJ’s decision if it is supported by
substantial weight, even if the record could arguably support a
different conclusion. Evangelista v. Secretary of Health and Human
Servs., 826 F.2d 136, 144 (1st Cir. 1987).
b. Analysis
1. The ALJ did not Err in Concluding that
Plaintiff’s Psychological Limitations did
Constitute a Severe Impairment

the
not

The plaintiff argues that the ALJ, in considering whether his
mental health limitations constituted a severe impairment, ignored
relevant medical evidence, in particular the favorable opinion of
Dr. Golub.

The plaintiff argues that the opinions of the state

agency reviewers, Dr. Kasdan and Dr. Fieman, who opined that he
25

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 26 of 34

was not suffering from a mental impairment, merited little weight
because those experts did not have sufficient information before
them to opine regarding his mental health limitations, and the ALJ
as a practical matter simply relied on her own lay assessments of
the

claimant’s

psychological

limitations,

based

largely

on

unjustified inferences she drew from evidence that he was able to
relate to his family members and take care of his severely disabled
wife. The plaintiff intimates that had the ALJ properly considered
the evidence and found his mental limitations to be severe, she
might have subsequently determined that he was disabled.
This court discerns no error in the ALJ’s treatment of this
issue. To begin, an ALJ must “always consider the medical opinions
in [the] case record.”

20 C.F.R. § 404.1527(b).

Notwithstanding

the plaintiff’s contention that the ALJ failed to do so, the record
reflects that the ALJ properly fulfilled her obligation to consider
all the evidence.
ALJ

devoted

In particular, the record demonstrates that the

significant

attention

plaintiff suffered from depression.

to

allegations

that

the

She noted that in June 2012

the plaintiff confided in his doctor that he was suffering great
stress, and that the doctor referred him to behavioral medicine
for anxiety and possible depression.

She noted that while the

record showed that the plaintiff received mental health treatment
on and off prior to the alleged onset date, Dr. Berarducci, his
treating

physician,

reported
26

that

his

neurological

and

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 27 of 34

psychological systems were within normal limits in September 2011
(during the relevant period).

The ALJ also noted that additional

records indicated that he was bright, alert, articulate, and fully
oriented, and on multiple occasions he claimed no neurological or
psychological issues.
The

ALJ

also

did

consider

Dr.

Golub’s

notwithstanding the plaintiff’s claim to the contrary.

opinion,
While it

is true that Dr. Golub opined that the plaintiff had most likely
been suffering a major depressive disorder for several years, the
ALJ explained that she gave his opinion little weight because she
found it to be inconsistent with the medical treatment the claimant
actually sought during the relevant period, and also inconsistent
with

the

plaintiff’s

treating

psychologist’s

opinion,

which

indicated that while the plaintiff was treated with Wellbutrin in
2003, he stopped taking the medication after he felt better and
did not receive mental health therapy.

Even assuming reasonable

minds might disagree with the ALJ’s weighing of the evidence and
ultimate conclusion, these decisions were hers to make based on
the record before her.

See Sexton v. Barnhart, 247 F. Supp. 2d

15, 24 (D. Mass. 2003) (while physician opined that claimant could
not work, “that conclusion is reserved to the Commissioner, not
the

treating

physician;”

physician’s

opinion

was

undercut

by

treatment notes, and was inconsistent with other medical reports).
Similarly, the ALJ did not err in giving greater weight to
27

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 28 of 34

the opinion of the state agency reviewers, Dr. Kasdan and Dr.
Fieman.

Indeed, “the ALJ must consider findings of State agency

medical and psychological consultants as opinion evidence because
such individuals are highly qualified physicians and psychologists
who are also experts in Social Security disability evaluation.”
Id. at 25. (internal quotation and alteration marks omitted).

The

ALJ certainly was not obligated to accord greater weight to the
state agency reviewers’ positions, but she explained that she did
so because their opinions were consistent with and supported by
the medical records from the relevant period.

The ALJ’s decision

to accord them greater weight for this reason was sound and thus
wholly proper.

See e.g., Bourinot v. Colvin, 95 F. Supp. 3d 161,

175 (D. Mass. 2015) (The ALJ may give greater weight to the medical
opinions of non-treating physicians so long as there is good reason
to do so).
In short, the record reflects that the ALJ fulfilled her
obligation to review all of the available medical evidence, based
her conclusions on that evidence, and explained how and why she
accorded each opinion the weight she did.

Accordingly, there is

no basis to question her determination that the plaintiff’s mental
health limitations did not constitute a severe impairment.

See

Pinnick v. Colvin, 132 F. Supp. 3d 18, (D. Mass. 2015) (ALJ did
not err in giving little weight to medical opinion or substitute
his own opinions for medical evidence where the ALJ found medical
28

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 29 of 34

opinion at issue to be inconsistent with the record as a whole,
cited specific findings in the medical records, and referenced the
opinion of the state agency consulting physicians).
2. The ALJ did not Err in Failing to Consult a Medical
Expert Under SSR 83-20 to Determine Disability
Onset Date
The plaintiff contends that the ALJ erred in failing to
properly apply SSR 83-20, which he asserts required her to consult
a medical expert to determine the date of the onset of his
disability.

SSR

83-20

describes

the

relevant

evidence

to

be

considered when establishing the onset date of disability, and
provides among other things that “[the ALJ] should call on the
services of a medical advisor when onset must be inferred.”

SSR

83-20, 1983 WL 31249.
Historically, courts in this district have taken the view
that

SSR

83-20

does

not

apply

disability has already been made.

unless

a

finding

of

present

See Hartigan v. Colvin, No.

CIV.A. 13-10540-TSH, 2014 WL 3849965, at *5 (D. Mass. Aug. 4,
2014); Silverio

v.

Astrue,

No.

CIV.A.

10-40202-FDS,

2012

WL

996857, at *6, *7 (D. Mass. Mar. 21, 2012); McDonald v. Astrue,
No. CIV.A. 10-10896-DPW, 2011 WL 3562933, at *10 (D. Mass. Aug.
15, 2011); see also Duncan v. Colvin, No. 1:15-cv-00393-JHR, 2016
WL 5477567, at *3 (D. Me. September 28, 2016).

Under this

approach, the ALJ’s failure to consult a medical expert in this
case would not present an issue because no finding of present
29

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 30 of 34

disability had been made.
More

recently,

however,

it

has

been

suggested

(but

not

outright held) that the better course might be to consult a medical
expert whenever the medical evidence regarding onset date is
ambiguous,
disability.

even

if

there

has

not

been

a

finding

of

present

See Fischer v. Colvin, 831 F.3d 31, 36-39 (1st. Cir

2016); see also Mazonson v. Colvin, Civil Action No. 15-cv-12979ADB, 2016 WL 6776280, at *8 (D. Mass. November 15, 2016) (finding
that “[i]t would be contrary to the spirit of the Social Security
Act and unreasonably rigid to hold that… the protections of SSR
83-20 do not apply where an ALJ has not had occasion to determine
the claimant's present disability status.”).
Assuming without deciding that SSR 83-20 applies here, this
court still finds no merit in the plaintiff’s claim of reversible
error.
onset

Under SSR 83-20, the “starting point” for determining the
date

of

a

disability

of

“nontraumatic

origin”

claimant’s own “statement as to when disability began.”
20, 1983 WL 31249 (1983).

is

the

SSR 83-

The ALJ’s task is then to determine

whether the alleged onset date is consistent with the evidence in
the case.

Field v. Shalal, No. CIV 93-289-B, 1994 WL 485781, at

*3 (D.N.H. Aug. 30, 1994). “Medical evidence serves as the primary
element in the onset determination.”

SSR 83-20.

Medical evidence

is ambiguous where there is at least some evidence that would allow
the ALJ to infer that the alleged onset date is accurate, but the
30

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 31 of 34

claimant’s medical records do not provide a precise onset date for
his disability.

Warneka v. Colvin, No. 14-CV-00022-PB, 2015 WL

1470955, at *3 (D.N.H. Mar. 31, 2015); see also Rossiter v. Astrue,
No. 10-CV-349-JL, 2011 WL 2783997, at *2 (D.N.H. July 15, 2011)
(evidence regarding onset was such that a reasonable person could
have decided either way and was therefore ambiguous such that
medical expert should have been called).
However, it is not necessary to consult a medical expert if
the alleged onset date is contradicted by contemporaneous medical
evidence.

Field, 1994 WL 485781, at *3 (“To reject [claimant’s]

alleged date, the ALJ must determine that it conflicts with the
other evidence in the record); Derosier v. Astrue, No. 08-274-BW, 2009 WL 961508, at *6 (D. Me. April 7, 2009) (report and
recommendation adopted, No. CIV 08-274-B-W, 2009 WL 1259114 (D.
Me. May 5, 2009) (plaintiff cannot create ambiguity in medical
evidence by offering a retrospective medical opinion that is
contradicted by contemporaneous medical evidence).
The plaintiff argues that because there were no mental health
records from the relevant time period, and because the only opinion
evidence available regarding the plaintiff’s mental health came
from

Dr.

Golub,

it

means

that

Dr.

Golub’s

opinion

was

not

contradicted by any available medical records, and that there was
at least some evidence to allow the ALJ to infer that the onset
date was September 2010 as claimed.
31

Accordingly, so the plaintiff

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 32 of 34

argues, the ALJ should have called a medical expert regarding the
disability onset date.
In this court’s view, though, it is hard to find fault with
the ALJ’s failure to consult a medical expert.

While there was a

dearth of evidence during the relevant time period bearing on the
onset date of a mental health related disability, this is not a
case where there was no evidence from the relevant time period;
there

was

evidence.

plenty

of

evidence,

just

no

mental

health

related

True, Dr. Golub’s 2014 retrospective opinion is the

only medical evidence in the record regarding mental health from
which an inference concerning the onset date of the plaintiff’s
depression could be drawn, but the ALJ gave ample reason for
according his opinion little weight.

Absent his opinion, then,

there was simply no evidence that would allow the ALJ to infer
that the alleged onset date was accurate.

It follows that the

medical evidence was not ambiguous, and there was thus no need to
consult a medical expert pursuant to SSR 83-20.

See Derosier,

2009 WL 961508 at *5.
Even assuming for the sake of argument that the ALJ should
have

consulted

appropriate.

a

medical

expert,

remand

still

would

not

be

See Mazonson v. Colvin, No. 15-cv-12979-ADB, 2016 WL

6776280, at *9 (D. Mass. November 15, 2016) (noting that “while an
error of law by the ALJ may necessitate a remand, a remand is not
essential if it will amount to no more than an empty exercise.”)
32

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 33 of 34

(internal alteration marks omitted).
exercise in futility.

Here, remand would be an

While Joyce argues that the state agency

reviewers “admitted to lacking any information with which to
establish a diagnosis or an assessment,” that is not inconsistent
with Dr. Golub’s statement.
plaintiff’s

mental

health

Indeed, Dr. Golub noted that the
treatment

was

“fleeting”

and

“not

significant,” and that the records regarding treatment Joyce did
receive were “remote.”

Dr. Golub did not reference any treatment

or records beyond the year 2004, let alone from the relevant
period.

At any hearing on remand the medical expert would be in

the same position and presented with the same evidence as the nonexamining

state

plaintiff’s

agency

mental

reviewers,

health

who

condition.

already

opined

Testimony

from

on

the

another

medical expert on this issue would merely be duplicative of those
opinions. See Mazonson at *9. Additionally, and as already noted,
the ALJ explained why she assigned less weight to the opinion of
Dr. Golub, as well as that of the plaintiff’s former co-worker,
noting that they contradicted the evidence in the medical records.
See id.

The ALJ should not be required to go through such an empty

exercise by remanding to call a medical expert.

Accordingly, even

assuming for the sake of argument that the ALJ's failure to comply
with the requirement of SSR 83-20 to call a medical expert was
error, it was harmless.

See id.

33

Case 1:16-cv-11891-RGS Document 21 Filed 08/31/17 Page 34 of 34

IV.

CONCLUSION
For the foregoing reasons, it is respectfully recommended

that the plaintiff’s motion to reverse or remand the decision of
the

Commissioner

be

DENIED

(Dkt.

No.

14).

It

is

further

recommended that the Commissioner’s motion to affirm be GRANTED
(Dkt. No. 18).

The parties are hereby advised that under the

provisions of Fed. R. Civ. P. 72(b), any party who objects to these
proposed findings and recommendations must file specific written
objections thereto with the Clerk of this Court within 14 days of
the party’s receipt of this Report and Recommendation. The written
objections must specifically identify the portion of the proposed
findings, recommendations, or report to which objection is made
and the bases for such objections. The parties are further advised
that the United States Court of Appeals for this Circuit has
repeatedly indicated that failure to comply with Fed. R. Civ. P.
72(b), will preclude further appellate review of the District
Court’s order based on this Report and Recommendation. See Keating
v. Secretary of health and Human Services, 848 F.2d 271 (1st Cir.
1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st
Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603
(1st Cir. 1980).
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED: August 31, 2017

34