Burgo v. Colvin

Filing 23

Judge Rya W. Zobel: ORDER entered. MEMORANDUM AND ORDER. Plaintiffs Motion to Reverse or Remand the Decision of Commissioner (Docket 16 ) is DENIED, and Defendants Motion for Order Affirming the Decision of the Commissioner (Docket 20 ) is ALLOWED.Judgment may be entered affirming the decision of the Commissioner.(Nicewicz, Craig)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 16-11920-RWZ

ANTONIO BURGO
v.
NANCY A. BERRYHILL,1
Acting Commissioner of the Social Security Administration
MEMORANDUM OF DECISION
October 16, 2017

ZOBEL, S.D.J.
Plaintiff Antonio Burgo, Jr.2 appeals from a final decision by the Acting
Commissioner of Social Security (“the Commissioner”) upholding the ruling of the
Administrative Law Judge (“ALJ”) that rejected his application for Supplemental Security
Income (“SSI”). Plaintiff contends that the ALJ erred in omitting both a physical and a
mental limitation from his residual functional capacity (“RFC”) assessment, and in failing
to give appropriate weight to the opinion of plaintiff’s treating psychiatrist.
I.

Background
Plaintiff filed an application for SSI on November 15, 2013, alleging disability

beginning on September 3, 2011. His claim was first denied on January 23, 2014, and

1

Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill has been substituted for Carolyn W .
Colvin as Acting Com m issioner of the Social Security Adm inistration.
2

Although the case caption om its the plaintiff’s “Jr.” suffix, I adopt it here because both the
parties and adm inistrative record include it consistently.

again upon reconsideration on May 27, 2014. Plaintiff requested a hearing before an
ALJ, and a hearing at which the plaintiff and a vocational expert (“VE”) testified was
held on May 26, 2015.
A.

Applicable Statutes and Regulations

To receive SSI benefits, a claimant must be “unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment
which . . . has lasted or can be expected to last for a continuous period of not less than
twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The impairment “must be of such severity
that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy.” Id. § 1382c(a)(3)(B); see also 20 C.F.R.
§ 416.905(a).
The ALJ analyzes whether a claimant is disabled using an established “five-step
sequential evaluation process.” See 20 C.F.R.§ 416.920(a)(4)(i)–(v). Under this
framework, the ALJ first determines whether the claimant is currently engaging in
substantial gainful work activity. If not, then at step two, the ALJ decides whether the
claimant has a “severe” medical impairment or impairments, which means an
impairment that “significantly limits [the claimant’s] physical or mental ability to do basic
work activities,” id. § 416.920(c). If the claimant has a severe impairment or
impairments, the ALJ considers third whether the impairment or impairments meets or
equals an entry in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix
1, and meets the duration requirement. If so, then the claimant is considered disabled.

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If not, the ALJ must determine the claimant’s RFC, which is “the most [a claimant] can
still do despite [his] limitations,” 20 C.F.R. § 416.945(a)(1). The ALJ then moves to step
four and determines whether the claimant’s RFC allows him to perform his past relevant
work. If the claimant has the RFC to perform his past relevant work, then he is not
disabled. If the claimant does not, the ALJ decides, at step five, whether the claimant
can do other work in light of his RFC, age, education, and work experience. If the
claimant can, he is not considered disabled; otherwise, he is. “Once the applicant has
met his or her burden at Step 4 to show that he or she is unable to do past work due to
the significant limitation, the Commissioner then has the burden at Step 5 of coming
forward with evidence of specific jobs in the national economy that the applicant can
still perform.” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001); see also 20 C.F.R.
§§ 416.912(b)(3), 416.960(c)(2).
B.

The Initial Rejection and the ALJ’s Decision

In a July 10, 2015, written decision, structured around the five-step sequential
evaluation process, the ALJ found plaintiff was not disabled under the Social Security
Act. At the first step, he determined that plaintiff had not engaged in substantial gainful
activity since November 15, 2013, the date on which he filed his SSI application. Next,
at step two, he found that plaintiff has the following severe impairments: ligament
reconstruction and tendon interposition of the left thumb capo-metacarpal joint, mild
compression deformity at T8 in the back, cervical and thoracic pain, depression, bipolar
disorder, anxiety, and substance addiction disorder. See 20 C.F.R. § 404.1520(c). At
step three, the ALJ nonetheless ruled that plaintiff “does not have an impairment or

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combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” R.3 at 18. Before
moving to step four, the ALJ determined plaintiff’s RFC:
After careful consideration of the entire record, I find that the claimant has
the following residual functional capacity: he could lift and carry 20 pounds
occasionally and 10 pounds frequently; stand or walk for 6 hours; sit for 6
hours; occasionally climb ramps and stairs, but never climb ladders, ropes,
and scaffolds; and occasionally balance stoop, kneel, crouch, and crawl.
Further, work is limited to simple tasks; he could sustain attention and pace
on simple tasks for 2 hours at a time over an 8-hour day, 40-hour week or
equivalent work schedule with customary breaks; could adapt to occasional
minor changes in work routines; and he could interact appropriately with
coworkers and supervisors.
Id. at 20. The ALJ explained that he “considered all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence,” and that he “also considered opinion evidence” in
accordance with the Social Security regulations. Id. He ultimately concluded that
although plaintiff’s “medically determinable impairments could reasonably be expected
to cause the alleged symptoms . . . [his] statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible.” Id. at 21.
At the fourth step, the ALJ concluded that the plaintiff has no past relevant work.
Finally, at step five, the ALJ determined, based on the VE’s testimony, “that,
considering the claimant’s age, education, work experience, and residual functioning
capacity, there are jobs that exist in significant numbers in the national economy that
the claimant can perform.” Id. at 29. The VE testified that the claimant could perform

3

“R.” refers to the Social Security adm inistrative record, which was filed in this appeal at

Docket No. 13.

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representative occupations such as cafeteria attendant, cleaner/housekeeper, and price
ticket marker. Accordingly, the ALJ concluded that the claimant was not disabled.
C.

The Appeal

Plaintiff appealed the ALJ’s decision to the Social Security Administration’s
Appeals Council, which denied review on July 28, 2016. The ALJ’s decision then
became the final decision of the Commissioner, and plaintiff brought this case under 42
U.S.C. § 405(g), seeking reversal thereof.
II.

Standard of Review
The Commissioner’s findings of fact are conclusive if based on the correct legal

standard and supported by substantial evidence. 42 U.S.C. § 405(g); Seavey, 276 F.3d
at 9. Substantial evidence includes “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
So long as the Commissioner’s determinations are supported by substantial evidence,
they must be affirmed, “even if the record arguably could justify a different conclusion.”
Rodriguez Pagan v. Sec’y Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per
curiam). Further, resolving credibility issues “and the drawing of permissible inference
from evidentiary facts are the prime responsibility of the [Commissioner].” Rodriguez v.
Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) (quoting Rodriguez
v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965)). Questions of law are reviewed de
novo. Seavey, 276 F.3d at 9.
III.

Discussion

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In support of his motion to reverse the Commissioner’s decision, plaintiff argues
that the ALJ erred in omitting both a physical and a mental limitation from the RFC
assessment, namely, restrictions in plaintiff’s use of his left hand and limitations in his
social functioning. He further urges that neither error was harmless where an RFC
assessment including either of these limitations – and certainly both in combination –
would have precluded the jobs identified at the fifth step of the ALJ’s analysis.
A.

Omission of Physical Impairment (Left Hand Restrictions) from RFC

Plaintiff contends that the evidence amply supported his claim of left-hand
impairment. He points to his testimony that he experiences pain in his left hand, wears
a left thumb brace, has no motion in his left thumb joint, and cannot grasp anything with
that thumb or hand. R. at 21. He also cites to medical records of orthopedic surgeon
Dr. Marvin Rosen, who noted multiple sources of arthritis in plaintiff’s left hand and
wrist. R. at 400. Based on this evidence, plaintiff argues the ALJ was required to
include the left-hand limitations in the RFC assessment when posing hypotheticals to
the VE.
Although an ALJ must consider a claimant's subjective allegations of pain and
functional limitations, he is “not required to accept those allegations at face value and
may reject them where they are unsupported by the medical evidence, treatment
history, and activities of daily living.” See Perusse v. Astrue, No. 10-30065, 2011 WL
1870590, at *5 (D. Mass. Apr. 25, 2011). Here, the ALJ did consider plaintiff’s
testimony and the medical evidence regarding his left hand and wrist. R. at 25. The
medical record, however, also includes post-operative notes by Dr. Rosen, who

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indicated that plaintiff was “doing quite well [and] a lot of his pain has resolved,” R. at
401, and noted that plaintiff could “touch the tip of the thumb to the small finger.” R. at
400. Finally, the ALJ’s statement that the medical record did not contain “further
documented treatment or follow-up for the left thumb,” R. at 23, fully supports his
decision to omit any left hand restriction from plaintiff’s RFC assessment.
B.

Omission of Mental Impairment (Social Functioning Limitations) from
RFC

Plaintiff similarly argues that the ALJ erred in omitting his social functioning
limitations from the RFC assessment. He contends first that this omission cannot be
supported by substantial evidence where “all of the medical records and medical
opinion evidence supports some limitations [in social interactions].” Docket # 17, at 14.
He additionally contends that the RFC assessment would have included a social
restriction if the ALJ had appropriately given controlling weight to the opinion of
plaintiff’s treating psychiatrist.
1.

Consideration of Impairment Evidence

Despite plaintiff’s contentions, the ALJ did acknowledge plaintiff’s limitations in
social functioning. See R. at 26–28 (reviewing medical evidence of plaintiff’s mental
impairments, and finding that plaintiff had moderate limitations in social functioning).
He nevertheless gave “great weight” to the assessments of state agency psychological
consultants Drs. Kellerman and Shestopal,4 R. at 27-28, who concluded that despite
moderate social limitations, plaintiff was “able to manage appropriate, superficial,
4

In so doing, he noted that “findings of fact m ade by state agency m edical professionals
regarding the nature and severity of and individual’s im pairm ents m ust be treated as expert opinion
evidence by a non-exam ining source in the absence of other fully credible m edical opinions (SSR 96-6p).”
R. 28. See C.F.R. §§ 404.1513a(b)(1).

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interpersonal interactions.” R. at 190, 205-06. Their conclusion is consistent with
evidence cited by plaintiff, which confirms the existence of social limitations but not the
impact of those limitations on his ability to work.
The ALJ was also entitled not to fully credit plaintiff’s statements concerning the
intensity, persistence, and limiting effects of his impaired social functioning. He noted
that plaintiff “attends church on Sundays as well as AA meetings six times a week,
reported performing odd jobs in October 2012, uses public transportation without
difficulty, goes to the library and reads the newspaper on a daily basis, prepares meals,
performs chores, visits with his mother weekly, sees his grandchildren often, and takes
walks.” R. at 26. See Teixeira v. Astrue, 755 F. Supp. 2d 340, 347 (D. Mass. 2010)
(“While a claimant’s performance of household chores or the like ought not be equated
to an ability to participate effectively in the workforce, evidence of daily activities can be
used to support a negative credibility finding.”)
Accordingly, the ALJ’s RFC assessment, including his finding that plaintiff “could
interact appropriately with coworkers and supervisors,” R. at 20, was supported by
substantial evidence. See Rodriguez, 647 F.2d at 222 (Commissioner’s findings must
be upheld so long as “a reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support [her] conclusion.”).
2.

Weight Accorded to Treating Source’s Opinion of Social Functioning

Plaintiff argues that the ALJ’s omission of a social functioning limitation from the
RFC assessment was also erroneous because, under the “treating physician rule,” he
was required to give controlling weight to the opinion of plaintiff’s treating psychiatrist

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Dr. Ying Wang. Dr. Wang opined that plaintiff’s “mood lability and irritability may
adversely impact his ability to interact socially.” R. at 575. Where the ALJ gave only
“some weight” to this view, R. at 28, plaintiff contends that the ALJ was required to
justify his decision using factors prescribed by regulation. Docket # 17, at 16 (citing 20
C.F.R. 404.1527(c)).
However, “[t]he law in this circuit does not require the ALJ to give greater weight
to the opinions of treating physicians.” Hagan v. Colvin, 52 F. Supp.3d 167, 174 (D.
Mass. 2014)(quoting Arroyo v. Sec’y of Health & Human Servs., 932 F.2d 82, 89 (1st
Cir. 1991). The “treating physician rule” on which plaintiff relies provides that, generally,
an ALJ will give “greater weight to a treating source opinion because they are likely able
to provide ‘a detailed, longitudinal picture of’ the claimant's medical impairment, and
their opinions benefit from a unique perspective unshared by ‘objective medical findings
alone or from reports of individual examinations, such as consultative examinations or
brief hospitalizations.’” Murphy v. Colvin, No.15-11548, 2016 WL 5402184, at *13 (D.
Mass. Sept. 27, 2016) (quoting 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2)). In the
absence of that justification, however, a treating source opinion is not automatically
entitled to controlling weight. See 20 C.F.R. § 404.1527(c)(2); see also Castro v.
Barnhart, 198 F.Supp.2d 47, 54 (D. Mass. 2002).
“When attributing less than controlling weight to a treating source's opinion, the
only constraint is that the ALJ must ‘give good reasons’ for his decision based on
consideration of: (1) the length, frequency, nature, and extent of the treatment
relationship; (2) the supportability of the opinion; (3) the consistency of the opinion with

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the record as a whole; (4) the treating physician's specialization in the relevant area of
medicine; and (5) other factors brought to the ALJ’s attention.” Murphy, 2016 WL
5402184, at *13 (citing 20 C.F.R. §§ 402.1527(c)(2)–(6), 416.927(c)(2)–(6)).
Here, although the ALJ should have made more express reference to these
factors, his decision is consistent with them. See Bourinot v. Colvin, 95 F. Supp.3d
161, 177 (D. Mass. 2015) (remand not required where it can be ascertained from the
entire record and the ALJ's opinion that the ALJ applied the substance of the treating
physician rule). The ALJ explained his consideration of Dr. Wang’s opinion as follows:
The questionnaire and report are given some weight as they note mild to
moderate symptoms and impairment consistent with the medical evidence
and the record as a whole. However, they do not offer a definitive opinion
as to the extent that his impairments would impose limitations on his abilities
other than just stating that they may adversely impact his functioning.
R. at 28. Dr. Wang specialized in psychiatry, and as discussed above, the ALJ adopted
her view of plaintiff’s limitations in social functioning. See R. at 19. But where Dr.
Wang offered no opinion as to how those limitations would impact plaintiff’s ability to
work, the RFC assessment need not have included a social functioning limitation even if
the ALJ had afforded controlling weight to Dr. Wang’s opinion.
Furthermore, Dr. Wang’s opinion lacks the longitudinal context that warrants
controlling weight generally accorded to treating sources. Her treatment of plaintiff
began on April 29, 2014, and occurred “every 1-2 months,” such that her report dated
July 17, 2014 was based on only one or two visits with plaintiff.5 R. at 573. The ALJ
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The treatm ent was also short-lived: Dr. W ang transferred psychiatric care of the plaintiff
back to Dr. Yeung on October 2, 2014. R. at 651-52. Dr. Yeung, another treating psychiatrist whose
opinion the ALJ gave “som e weight,” R. 27, anticipated in January, 2014, that plaintiff m ight have trouble
getting along with others “due to m ood swings.” R. 537. In May, 2014, Dr. Yeung described plaintiff as
“restless, m oody, and im pulsive,” and characterized his social functioning as “not great, has not worked

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thus did not err in giving only “some weight” to Dr. Wang’s opinion. See 20 C.F.R. §
404.1527(c)(2); see also Curley v. Comm'r of Soc. Sec., No. 16-11240, 2017 WL
2624225, at *13 (D. Mass. May 30, 2017), report and recommendation adopted, No. 1611240, 2017 WL 2622745 (D. Mass. June 16, 2017) (ALJ did not err in according little
weight to opinion of treating psychiatrist who saw claimant only once); Murphy, 2016
WL 5402184, at *13 (“Dr. Burke saw Murphy only once . . . As a result, Dr. Burke’s
consulting opinion lacked the unique depth and perspective which warrants the
assignation [sic] of greater weight to his opinion. Accordingly, ALJ Evans was not
constrained by the ‘Treating Physician Rule’ and properly determined what weight to
attribute Dr. Burke’s opinion based on his analysis of the record as a whole.”); cf.
Hagan, 52 F. Supp.3d at 174–75 (ALJ erred in failing to explain why treating
psychiatrist’s opinion, if not entitled to controlling weight, was given little weight, where
treating psychiatrist had seen claimant eleven times prior to giving opinion and sources
of inconsistent evidence saw the claimant once or not at all).
IV.

Conclusion

[for over a year].” R. 542-43. The ALJ accorded Dr. Yeung’s opinion “som e weight” because it was
“suggestive of m oderately rated sym ptom s and lim itations consistent with the m edical evidence and the
record as a whole. However, the m ajority of the form s are not com plete due to inadequate inform ation
and thus the form s are only given som e weight.” R.27. Although plaintiff does not challenge the ALJ’s
consideration of Dr. Yeung’s opinion in light of the treating physician rule, I nonetheless note that treating
source opinions not adequately explained or supported do not com m and controlling weight. See Coggon
v. Barnhart, 354 F. Supp. 2d 40, 51-52 (D. Mass. 2005) (citing to 20 C.F.R. § 404.1527(d)(2) for
proposition that treating source opinions warrant controlling weight if well-supported by m edically
acceptable clinical evidence). Unlike the incom plete form s subm itted by Dr. Yeung, the state agency
psychological assessm ents to which the ALJ gave great weight detailed the findings of fact and m edical
evidence analyzed in m aking plaintiff’s RFC determ ination. R. 180-192, 195-209. Cf. Arroyo v. Barnhart,
295 F Supp. 2d 214, 221-22 (D. Mass. 2003)(ALJ erred in giving little weight to treating source opinion he
characterized as inadequately supported or explained where state agency reports to which he gave
controlling weight were substantially sim ilar).

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Plaintiff’s Motion to Reverse or Remand the Decision of Commissioner (Docket
# 16) is DENIED, and Defendant’s Motion for Order Affirming the Decision of the
Commissioner (Docket # 20) is ALLOWED.
Judgment may be entered affirming the decision of the Commissioner.

___October 16, 2017____

_________/s/Rya W. Zobel

DATE

_____

RYA W . ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

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