Guarente v. Colvin

Filing 24

Chief Judge Patti B. Saris: MEMORNADUM and ORDER entered. For the reasons stated above, Plaintiff's motion to reverse the decision of the Commissioner (Docket No. 16 ) is DENIED. Defendant's motion to affirm the Commissioners decision (Docket No. 20 ) is ALLOWED. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
______________________________
)
)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of Social )
Security Administration,
)
)
Defendant.
)
______________________________)
ANNAMARIE GUARENTE,

Civil Action
No. 16-cv-12003

MEMORANDUM AND ORDER
August 23, 2017
Saris, C.J.
INTRODUCTION
Plaintiff AnnaMarie Guarente seeks judicial review of the
decision by the Social Security Administration (“SSA”) to deny
her claim for Supplemental Security Income (“SSI”) benefits and
Social Security Disability Insurance (“SSDI”) benefits.
Plaintiff argues that: 1) the Administrative Law Judge (“ALJ”)
failed to properly weigh the opinion of her treating
ophthalmologist, and 2) the ALJ erroneously rejected the opinion
of her treating podiatrist. For the reasons set forth below, the
Court DENIES Plaintiff’s motion to reverse the decision of the

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Commissioner. Docket No. 16. Defendant’s motion to affirm is
ALLOWED. Docket No. 20.
FACTUAL BACKGROUND
At the time of the hearing before the ALJ on November 6,
2014, Plaintiff was fifty-three years old. R. 23. The ALJ denied
Guarente’s application for benefits on March 11. 2015. R. 29.
Her request for reconsideration was denied on August 4, 2016. R.
1-4.
I.

Work History and Education
Plaintiff has an Associate’s degree. R. 41. At the time of
the hearing, she worked as a part-time kitchen helper at a
school five days a week from 10 A.M. to 1:15 P.M. This job
required her to stand for three hours cooking, preparing food,
and serving children. R. 41-42.

II.

Medical History
Plaintiff alleges disability beginning March 31, 2011 due
to high cholesterol, hypertension, neuropathy, retinopathy,
diabetes, depression, and anxiety. R. 18, 74-75.
On March 23, 2011, Dr. Sunil Rao, a retina specialist,
evaluated Plaintiff for non-proliferative diabetic retinopathy
in both eyes. R. 323. Dr. Rao’s follow-up observations in
December 2011, May 2012, and September 2012 indicated that
Plaintiff’s visual acuity remained stable. R. 316, 320, 495-96.

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On March 31, 2011, Plaintiff visited Dr. Meghan Sass for a
follow-up appointment concerning her diabetes mellitus type II,
which was diagnosed in 2006. R. 21, 308. Plaintiff reported
walking for exercise, but she complained of some numbness and
burning in her feet. R. 308. Dr. Sass observed normal movement
of the extremities, intact sensation and motor function, as well
as normal gait and station. R. 309. At a June 2011 appointment,
Dr. Sass also noted poor control of Plaintiff’s diabetes and
indicated that treatment with insulin was necessary. R. 304.
At a follow-up exam for cholesterol and hypertension on
August 19, 2011, Dr. Lisa Bowie observed normal motor function,
normal gait and station, and intact sensation and motor
function. R. 350. Plaintiff did not complain of fatigue and
reported walking for exercise. R. 350. The following month, Dr.
Bowie noticed a slight decrease in vibratory sensation in the
bottom of both feet but an overall normal gait and station, full
motion in the extremities, and intact nerves R. 346. Plaintiff
again did not complain of fatigue, muscle pain, weakness, or
paresthesia.1 R. 345. In November 2011, Plaintiff reported that
she walked daily, improved her diet, and felt that her toe
numbness improved. R. 299. Dr. Sass observed normal movement of

1

Paresthesia is a skin sensation such as burning or tingling
that has no apparent physical cause. See The American Heritage
Medical Dictionary.

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the extremities and normal reflexes. R. 300. She also noted
improvements in Plaintiff’s blood sugar levels and saw no signs
of significant neuropathy. R. 299.
On August 24, 2012, Dr. E. Kelly McLaughlin, Plaintiff’s
treating podiatrist, noted discolored, thick, and painful
toenails; limited ambulation from foot pain; and limited
sensation. R 602-03. Plaintiff complained of toe pain, foot
pain, and presented with paresthesia. R. 602. Dr. McLaughlin
diagnosed Plaintiff with neuropathy and observed that her
overall sensation was not intact. R. 603.
In a November 2012 visit to Dr. Bowie for a routine followup. R. 332 Plaintiff noted that she walked for exercise and
denied fatigue. R.332-33. Dr. Bowie observed poor control of
Plaintiff’s diabetes partly due to six weeks of non-compliance
with medication and an incorrect insulin dosage. R. 334. In
February 2013, Plaintiff complained to Dr. Bowie that she had
back pain radiating into her right leg. R. 536. She denied
fatigue, weakness, and paresthesia. R. 537. Dr. Bowie found full
motion in the extremities, no issue with nerve or motor
function, and normal gait and function. R. 538. However, Dr.
Bowie noted that both Plaintiff’s feet were hypersensitive to
light touch. R. 538.
On January 22, 2013, Plaintiff saw Dr. Magdalena Krzystolik
for her retinopathy. R. 492. Dr. Krzystolik followed up with

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Plaintiff in March and July 2013. R. 491, 614. Plaintiff also
visited Dr. Krzystolik in January and May 2014. R. 610, 612.
Throughout this time Guarente had stable vision in both eyes
even though she had severe non-proliferative diabetic
retinopathy but there was no evidence of clinically significant
macular edema in either eye. R. 611.
In February 2014, Dr. Bowie saw improvements in Plaintiff’s
diabetes. R. 511. She also noted full motion in the extremities,
normal sensation and motor function, intact nerves, as well as
normal gait and station. R. 510. Plaintiff did not complain of
fatigue, pain, weakness, or paresthesia. R. 509.
In May 2014, Plaintiff complained to Dr. McLaughlin of
lower extremity paresthesia, burning, and hyperesthesia. R. 595.
Dr. McLaughlin concluded that Plaintiff had keratosis2 and a preulcer condition on her left big toe. R. 596. Dr. McLaughlin also
observed intact sensation in the lower extremities. R. 596.
III.

Treating Physicians’ Opinions
A. Dr. Krzystolik’s Medical Evaluation
In October 2014, Dr. Krzystolik diagnosed Plaintiff with

severe non-proliferative diabetic neuropathy in both eyes, but
said: “at this time vision is good.” R. 649-50. Dr. Krzystolik

2

Keratosis refers to a skin condition resulting in benign,
superficial and often pigmented lesions that usually occur after
one’s third decade. See Stedmans Medical Dictionary STEDMANS
469330 (last updated Nov. 2014).

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noted Plaintiff could complete visual activities and had no
exertional or postural limitations caused by her problems. R.
650. According to Dr. Krzystolik, Plaintiff could frequently
stoop, crouch, climb ladders, and lift ten pounds frequently and
more weight as tolerable. R. 650. Dr. Krzystolik does not
address standing or walking.
B. Dr. McLaughlin’s Medical Evaluation
In December 2014, Dr. McLaughlin, the treating podiatrist,
opined in the physical residual functional capacity (“RFC”)
assessment that Plaintiff could frequently lift less than ten
pounds and occasionally lift ten pounds. R. 665. She also noted
that Plaintiff could stand or walk less than two hours and sit
for six hours. R. 665. She observed that Plaintiff had a limited
ability to push and pull using her lower extremities but that
she had no postural limitations. R. 665-66. She also prohibited
Plaintiff from exposure to extreme temperatures, hazards, and
vibrations. R. 668.
IV.

State Agency Physicians’ Evaluations
A. Dr. M.A. Gopal, State Agency Consultant
In January 2013, Dr. Gopal conducted a review of the

record. R. 92. In Dr. Gopal’s assessment, Plaintiff’s diabetes
resulted in the following limitations: frequent lifting up to
ten pounds, occasional lifting up to twenty pounds, sitting for

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six hours in an eight-hour workday, standing or walking for six
hours in an eight-hour workday. R. 90.
B. Dr. Ann Fingar, State Agency Consultant
In June 2013, Dr. Fingar reviewed Plaintiff’s record. R.
123. Dr. Fingar opined that Plaintiff’s diabetes and peripheral
neuropathy led to several limitations: frequent lifting up to
ten pounds, occasional lifting up to twenty pounds, sitting for
six hours in an eight-hour workday, standing or walking for six
hours in an eight-hour workday. R. 120-21. Dr. Fingar noted that
Plaintiff could conduct the following activities: frequently
climb stairs and ramps, stoop and balance, as well as
occasionally climb ladders, scaffolds, and ropes. R. 121. She
also noted Plaintiff could crawl and crouch. R. 120. Dr. Fingar
advised that Plaintiff should avoid exposure to hazards. R. 122.
V.

Hearing Before the ALJ
The administrative hearing was held on November 6, 2014 by

ALJ William Ramsey. R. 35. Plaintiff was represented by counsel.
R. 35.
A. Plaintiff’s Testimony
Plaintiff testified at the hearing as follows: she worked
part-time from 10 A.M. to 1:15 P.M. as a kitchen helper in an
elementary school. R. 42. Her day consisted of making breakfast,
doing morning chores, showering, and dressing herself before
work. R. 42. She would stand at work for three hours cooking,

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preparing food, and serving children. R. 43. She would then go
home from work and immediately raise her feet on the couch for a
two-hour break because of pain from her big toe to her hip. R.
42. Afterwards, she would do some more chores such as laundry
and would cook dinner. R. 42.
Plaintiff mentioned that she would not take a full-time
position if available because she needed breaks due to the pain
in her legs. R. 43. She testified to being limited to three
hours of standing before experiencing pain or fatigue. R. 44.
She could bend at the waist to pick up an item from the ground,
but could not kneel, stoop, or bend down for very long. R. 45.
She testified that she could lift a gallon of milk with either
arm but could not lift two gallons of milk simultaneously. R.
46, 49. Plaintiff stated that she routinely babysat for her
granddaughter with her husband’s help and that she could drive
to school and the grocery store. R. 44-45, 48.
B. Vocational Expert’s Testimony
The ALJ also questioned Dr. Robert Lowsky, a vocational
expert for this case. R. 53. Dr. Lowsky was asked to consider a
hypothetical:
“individual with the same age, education and work
history as the claimant who is able to lift twenty pounds
occasionally and ten pounds frequently; stand and walk
at least six hours in an eight-hour workday and sit with
normal breaks of about six hours in an eight-hour workday
[and also] has the ability to occasionally climb,
balance, stoop, kneel, crouch or crawl, but never climb

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a ladder. They must avoid concentrated exposure to all
hazards. . . . [and] possess the occasional ability to
push or pull with both lower extremities.”
R. 54. Dr. Lowsky was then asked if there are jobs in the
national economy that such a person could perform given the
above limitations. R. 54. Dr. Lowsky testified that such a
person would be able to perform the duties of a photocopy
machine operator, an inspector, or a mail clerk. R. 54-55.
C. Decision of the ALJ
At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since her amended disability
onset date of March 31, 2011 because her part-time work did not
qualify as substantial gainful activity. R. 20. At step two, the
ALJ found that Plaintiff had several severe impairments: anxiety
disorder, panic attacks, depression, diabetes, retinopathy, and
neuropathy. R. 21. She also had the non-severe impairment of
obesity. R. 23. At step three, the ALJ did not find an
impairment or combination of impairments severe enough or the
medical equivalent of the statutory definition of a disability.
R. 24. At step four, the ALJ found that Plaintiff had the RFC to
perform light work except that:
[S]he is able to lift twenty pounds occasionally and ten
pounds frequently. She can stand or walk at least six hours
in an eight-hour work day and she can sit (with normal
breaks) about six hours in an eight-hour workday. She has
the ability to occasionally climb or balance, sto[o]p,
kneel, crouch or crawl. She can never climb a ladder. She
possesses occasional ability to push and pull with both

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lower extremities. She must avoid concentrated exposure to
hazards. Her work is limited to only occasional interaction
with the public, co-workers, and supervisors. Her work is
limited to the performance of simple, routine, and
repetitive instructions. She would need to elevate her legs
while sitting, but less than 20% of the time during an
eight-hour workday.
R. 25.
Considering Plaintiff’s RFC, age, education, and work
experience, the ALJ found at step five that the national economy
offered Guarente substantial employment which she could adjust
to and perform. R. 28. Thus, the ALJ found that Plaintiff was
not disabled under the Social Security Act. R. 29.
PROCEDURAL HISTORY
Plaintiff filed for SSI benefits and SSDI benefits on July
26, 2012, alleging disability commencing March 31, 2011. R. 18.
The application was denied at the initial level and upon
reconsideration. R. 18. Plaintiff requested a hearing which was
held before ALJ William Ramsay on November 6, 2014. R. 18. On
March 11, 2015, the ALJ found that Plaintiff was not disabled.
R. 29. The Appeals Council denied Plaintiff’s request for review
of the ALJ’s decision on August 4, 2016. R. 1. The case is now
ripe for review under 42 U.S.C. § 405(g).

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DISCUSSION
I.

Legal Standards
A. Standard of Review
The ALJ’s factual findings are entitled to deference. “We

must affirm the [ALJ’s] resolution, even if the record arguably
could justify a different conclusion, so long as it is supported
by substantial evidence.” Rodriguez Pagan v. Sec’y of Health &
Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per curiam); see
also 42 U.S.C. § 405(g) (“The findings of the Commissioner of
Social Security as to any fact, if supported by substantial
evidence, shall be conclusive . . . .”). A finding is supported
by substantial evidence “if a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate
to support [the] conclusion.” Rodriguez v. Sec’y of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
“Even in the presence of substantial evidence, however, the
Court may review conclusions of law, and invalidate findings of
fact that are derived by ignoring evidence, misapplying the law,
or judging matters entrusted to experts.” Rascoe v. Comm’r of
Soc. Sec., 103 F. Supp. 3d 169, 175 (D. Mass. 2015) (quoting
Musto v. Halter, 135 F. Supp. 2d 220, 225 (D. Mass. 2001)).
B. Statutory and Regulatory Framework
A claimant seeking benefits under the Social Security Act
must prove that he or she is disabled. 42 U.S.C. § 423(a)(1)(E).

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To qualify as disabled, a claimant must show “inability 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 12 months.” Id. § 423(d)(1)(A). To meet this
definition, a claimant must “have a severe impairment[]” that
renders her “unable to do [her] past relevant work or any other
substantial gainful work that exists in the national economy.”
20 C.F.R. § 404.1505(a) (internal citations omitted).
The ALJ employs a five-step sequential evaluation process
to evaluate a claim for disability benefits. 20 C.F.R.
§ 404.1520(a). If the ALJ determines at any step that the
claimant is disabled or not disabled, the evaluation concludes
at that step. See Freeman v. Barnhart, 274 F.3d 606, 608 (1st
Cir. 2001). The steps are:
1) if the applicant is engaged in substantial
gainful work activity, the application is denied;
2) if the applicant does not have, or has not had
within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3) if the impairment meets
the conditions for one of the “listed” impairments
in the Social Security regulations, then the
application is granted; 4) if the applicant’s
“residual functional capacity” is such that he or
she can still perform past relevant work, then the
application is denied; 5) if the applicant, given
his or her residual functional capacity, education,
work experience, and age, is unable to do any other
work, the application is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001).

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In the first four steps, the claimant bears the burden of
proof to establish disability. Freeman, 274 F.3d at 608. At step
five, the burden shifts to the Commissioner. Arocho v. Sec’y of
Health and Human Servs., 670 F.2d 374, 375 (1st Cir. 1982).
ANALYSIS
Here, the key issues are (1) whether the ALJ failed to
properly explain the weight given to Dr. Krzystolik’s opinion
and (2) whether the ALJ improperly rejected Dr. McLaughlin’s
opinion.
I.

Dr. Krzystolik’s Opinion
Plaintiff argues the ALJ was required to explain and
provide good reasons for the failure to explicitly adopt
Dr. Krzystolik’s opinion because she had been Plaintiff’s
treating ophthalmologist since January 22, 2013. Additionally,
Plaintiff posits that the ALJ’s failure to explicitly state the
weight given to Dr. Krzystolik’s opinion is in error because Dr.
Krzystolik’s opinion contained limitations for Plaintiff that
were more significant than those determined by the ALJ.

Under SSA regulations, the ALJ must weigh treating
physicians’ opinions and provide good reasons for the weight he
ultimately assigns to a treating source’s opinion. 20 C.F.R.
§ 404.1527(c)(2); King v. Colvin, 128 F. Supp. 3d 421, 436 (D.
Mass. 2015) (“SSA regulations state than an administrative law

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judge must give good reasons for rejecting a treating sources
opinion.”).
In October 2014, Dr. Krzystolik found that Plaintiff could
frequently lift up to ten pounds and even more as tolerated. R.
650. Plaintiff could also frequently stoop, crouch, and climb
ladders. R. 23. Contrary to Plaintiff’s assertion, Dr.
Krzystolik’s observations are not inconsistent with the ALJ’s
decision, which also found that Plaintiff could lift ten pounds
frequently, lift twenty pounds occasionally, stoop, and crouch.
R. 25. Instead, the ALJ’s decision is actually more favorable to
Plaintiff because the ALJ’s findings indicated that Plaintiff
could never climb ladders. R. 25. The ALJ’s decision is not a
rejection of the opinion of the ophthalmologist, but rather
seems to embrace it.
II.

Dr. McLaughlin’s Opinion
Plaintiff argues the ALJ erroneously rejected Dr.
McLaughlin’s opinion that restricted the claimant to a sedentary
level of exertion and that she could only walk or stand two
hours and differed on the amount of weight she could lift.
In Social Security disability proceedings, treating
physicians’ opinions hold controlling weight if they are
consistent with other substantial evidence in the claimant’s
record. 20 C.F.R. § 416.927(c)(2). If a treating physician’s
opinion is not given controlling weight, the ALJ must assign a

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weight through a factors-based test that considers the length of
the treatment relationship, nature and extent of the
relationship with applicant, 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
specializes in the field. 20 C.F.R. § 404.1527(c).
However, the ALJ need not discuss each factor in his
decision on the weight given to a treating physician’s opinion
if the ALJ provides good reasons supported by substantial
evidence in the record. See 20 C.F.R. § 404.1527(c); Pinnick v.
Colvin, 132 F. Supp. 3d. 180, 188 (D. Mass. 2015); see also
Green v. Astrue, 588 F. Supp. 2d 147, 155 (D. Mass. 2008)
(holding that remanding for ALJ’s failure to explicitly address
each potential factor would lead to a waste of judicial
resources since another ALJ may likely come to the same
conclusion).
At issue here is whether the ALJ reasonably discounted Dr.
McLaughlin’s opinion about how much weight Plaintiff could lift
and how long Plaintiff could walk or stand. The ALJ explained
that he rejected Dr. McLaughlin’s opinion that restricted
claimant to a sedentary level of exertion because it conflicted
with “her activities of daily living and her continuing to work
successfully part-time.” R. 27. Significantly, Dr. McLaughlin’s
opinion that plaintiff could only stand two hours a day is

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contradicted by her own testimony that she could stand three
hours a day on her job. R. 43. On several occasions, Plaintiff
reported to her doctors that she exercised by walking. R. 258,
299, 305, 333, 350, 509, 542, 637. She also testified that she
drove, did household chores such as laundry, and went grocery
shopping. R. 42, 44. Several of Guarente’s doctors noted that
she had full range of motion, full strength and gait, along with
intact nerves and motor function. R. 300, 309, 346, 510. Such
record evidence is inconsistent with Dr. McLaughlin’s diagnosis
that Plaintiff was functionally limited to a sedentary level of
exertion.
Further, Dr. McLaughlin concluded that she could lift ten
pounds occasionally. Remember, Dr. Krzystolik concluded she
could lift ten pounds frequently. Two state agency consultants
also opined that Plaintiff could lift ten pounds frequently,
lift twenty pounds occasionally, and stand or walk for more than
six hours per day. As a podiatrist, the scope of Dr.
McLaughlin’s medical evaluation was limited to impairments of
her feet. See Acosta v. Comm’r of Soc. Sec., No. 1:15-CV-01125,
2016 WL 3027448, at *4 (M.D. Pa. May 12, 2016), report and
recommendation adopted, No. 1:15-CV-1125, 2016 WL 3015154 (M.D.
Pa. May 26, 2016) (“We note at the outset that pursuant to the
Commissioner’s regulations, a podiatrist is considered an
“acceptable medical source” qualified to render a medical

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opinion only to the extent that the opinion addresses issues
within the scope of his or her medical practice under state law
(i.e., foot or foot and ankle).” (citing 20 C.F.R.
§ 404.1513(a)(4))); see 20 C.F.R. § 404.1513(a)(4). Dr.
McLaughlin’s opinion that Plaintiff could frequently lift less
than ten pounds and occasionally lift ten pounds relates to
impairments to parts of the body that would fall outside the
scope of Dr. McLaughlin’s expertise. Thus, for the foregoing
reasons, there is no error in the ALJ’s decision to discount Dr.
McLaughlin’s opinion and give the state consultants’ opinion
some weight.
ORDER
For the reasons stated above, Plaintiff’s motion to reverse
the decision of the Commissioner (Docket No. 16) is DENIED.
Defendant’s motion to affirm the Commissioner’s decision (Docket
No. 20) is ALLOWED.

/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge

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