De Jesus v. Berryhill

Filing 24

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered. The Court DENIES the Government's motion to affirm the Commissioner's decision (Dkt. No. 21 ) and ALLOWS Plaintiff's motion to reverse and remand (Dkt. No. 16 ).SO ORDERED.(Lara, Miguel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
)
)
Plaintiff,
)
)
v.
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NANCY A. BERRYHILL,
)
Acting Commissioner of the
)
Social Security Administration,
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Defendant.
)
___________________________________)
JORGE LUIS DE JESUS,

Civil Action
No. 18-10079-PBS

MEMORANDUM AND ORDER
September 26, 2019
Saris, C.J.
INTRODUCTION
Plaintiff Jorge Luis de Jesus bring this action under 42
U.S.C. § 405(g) for judicial review of a final decision denying
his application for Supplemental Security Income (“SSI”).
Plaintiff suffers from a number of physical and mental
conditions, including diabetes mellitus, osteoarthrosis,
hypertension, sleep apnea, obesity, major depression, anxiety,
and post-traumatic stress disorder (“PTSD”). Plaintiff takes
issues with the findings of the Administrative Law Judge (“ALJ”)
who denied his application as they relate to his physical
conditions. Specifically, he contends the ALJ erred by

1

(1) finding his bilateral osteoarthritis of the knee to be a
non-severe condition, (2) failing to properly evaluate his pain
symptoms, and (3) discounting the opinion of his primary care
physician. Plaintiff also faults the ALJ for failing to properly
consider his English illiteracy in assessing his ability to find
gainful employment. Defendant moves to affirm the ALJ’s
decision.
For the reasons set forth below, the Court ALLOWS
Plaintiff’s motion to remand (Dkt. No. 16) and DENIES
Defendant’s motion to affirm (Dkt. No. 21).
FACTUAL BACKGROUND
Plaintiff was 45 years old on March 6, 2015 when he
initially filed an application for SSI benefits. Plaintiff grew
up in Puerto Rico and stopped attending school in the fourth
grade at age 12. Plaintiff moved to the United States in 1993 at
age 24. Since coming United States, Plaintiff has worked as a
cashier and assistant manager at Dunkin Donuts, a hotel
housekeeper, and a hand packer of newspaper fliers. He was last
employed in 2012. He is currently homeless and has lived in a
shelter since 2010. Plaintiff also has a history of opioid
dependence and he was treated with Suboxone through the relevant
period.

2

I.

Medical History1
On November 18, 2011, Plaintiff saw his primary care

physician, Dr. Pablo Hernandez, at the South End Community
Health Center due to left foot pain. On December 13, 2011,
Plaintiff complained to Dr. Hernandez about back pain. On
January 8, 2012, Plaintiff went to the emergency room
complaining of pain in the left knee and left foot. A lower
extremity evaluation revealed tenderness to palpitation of the
posterior and medial knee. The left knee evaluation showed, “no
deformity, no ecchymosis, no swelling, no hematoma, no erythema,
no warmth, full range of motion.” R. 482. The left leg
evaluation showed “no abrasions, no crepitus, no ecchymosis, no
induration, no lacerations, no obvious deformity, no redness,
distal pulses intact, swelling noted, proximally posteriorly,
tenderness noted.” Id. The left foot evaluation showed, “no
ecchymosis, no swelling, no puncture wounds, no laceration, no
hematoma, 5th metatarsal nontender, full range of motion, tendon
function normal.” Id.
On February 25, 2012, Dr. Hernandez examined Plaintiff and
noted that Plaintiff was suffering from “hypertension,”
“hypercholesterolemia,” “open fracture shaft of tibia,”

The ALJ’s decision and the administrative record contain
additional medical evidence concerning Plaintiff’s mental
conditions. The Court does not recount that evidence here,
however, because it is not relevant to Plaintiff’s claims.
1

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“obesity,” and “diabetes mellitus.” R. 446. On June 11, 2012,
Plaintiff again reported experiencing pain in his left shoulder.
Dr. Hernandez noted that Plaintiff had a limited range of motion
and that the pain was exacerbated if Plaintiff kept his arm in
the same position for a prolonged period of time. The intensity
of the pain was recorded as 8/10. Plaintiff continued to
complain of severe left shoulder pain at a follow-up visit with
Dr. Hernandez in July 2012 and an emergency room visit in August
2012.
On September 27, 2012, Plaintiff returned to Dr. Hernandez
complaining of lower back pain that radiated to his feet and
which was exacerbated by the cold. Plaintiff also complained of
knee pain radiating to his feet, increased pain in the cold, and
difficulty ambulating. Dr. Hernandez noted that Plaintiff had no
noticeable swelling but did have tenderness to several
maneuvers, a mild decrease in muscle strength over the left
shoulder, and knee pain. Plaintiff rated his pain as 10/10. Dr
Hernandez prescribed him Indomethacin 50 mg and Percocet 325 mg
for the pain.
A month later, on October 29, 2012, Plaintiff again
complained of severe lower extremity pain involving his knees,
ankle, and feet. Plaintiff reported to Dr. Hernandez 9/10 pain
intensity that had worsened with the onset of cold weather.
Plaintiff also reported that usually 10 mg of oxycodone a day
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was enough to carry on daily activities but that none of the
other medications he tried over the past two years had really
worked.
On that same day, a rheumatologist, Dr. Patrick Hook,
examined Plaintiff for bilateral lower extremity pain. Dr. Hook
noted Plaintiff’s “physical exam is largely benign with no
suggestion of an underlying inflammatory arthritis.” R. 519.
“[Plaintiff’s] inflammatory markers . . . were unremarkable.”
Id. Dr. Hook also opined that Plaintiff, “may be experiencing
some symptoms of patellofemoral syndrome mostly in his right
knee.” Id. He noted that Plaintiff was getting “adequate pain
relief from Percocet,” but prescribed Voltaren cream for
additional pain relief. Id. Dr. Hook also urged Plaintiff to
lose weight to aid in relieving bilateral knee symptoms. Id.
On November 1, 2012, Plaintiff was seen by his new PCP, Dr.
Christine Pace at Boston Medical Center. Dr. Pace noted many of
the same ailments identified by Dr. Hernandez, including that
Plaintiff had been suffering from bilateral knee pain, pain in
his left forearm, and back chronic pain. Dr. Pace wrote that
Plaintiff was not able to sit or walk for prolonged periods of
time. She also noted that Plaintiff had a “[m]oderate functional
limitation but was able to work a few mo[nth]s ago without
limit.” R. 532. Due to opioid-related concerns and “[the]
unremarkable exam without a lot of provoked pain,” Dr. Pace
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concluded “it is not clear to me that [additional] opioids are
needed at this point.” Id.
During an appointment in December 2012, Plaintiff reported
to Dr. Pace that the Percocet was “very helpful for pain.” R.
545. On February 11, 2013, however, Plaintiff reported to Dr.
Pace that his knee pain had worsened despite still taking
Percocet. He also reported that prolonged sitting was
exacerbating the problem. Dr. Pace’s notes indicated “knee exam
is quite benign, minimally tender today.” R. 580. She prescribed
physical therapy, “education, evaluation, and treatment for
bilateral knee osteoarthritis and possible patellofemoral
syndrome.” R. 579.
Throughout 2013, Plaintiff continued to complain of knee
pain, and he underwent several x-ray examinations to get to the
bottom of the problem. On March 6, 2013, Plaintiff reported to
Dr. Pace that he was unable to exercise because of “injured
knees.” R. 587. Plaintiff stated that he had “been gaining
weight since stopped playing basketball.” Id. On April 14, 2013,
an x-ray of the left knee revealed “[m]ild tricompartmental
degenerative changes characterized by osteophyte formation and
spiking of the tibial spines.” R. 593. The x-ray also revealed
“[n]o evidence of acute fracture or subluxation.” Id. An x-ray
of the right knee, taken on December 5, 2013, revealed “[s]mall
osteophytes emanating from the tibial spines and of the
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patella,” “[m]ild degenerative change,” “[m]oderate
suprapatellar effusion,” and “no acute fracture.” R. 366. On
December 6, 2013, Dr. Pace informed Plaintiff that another x-ray
“showed some arthritis and some swelling,” and referred him to
the injection clinic to see if steroid injections might help
with the pain. R. 636. On January 15, 2014, Dr. Pace noted that
Plaintiff has “constant bilat[eral] knee pain with intermittent
swelling,” that it is “worse in [the] cold,” and that “pain
impairs sleep.” R. 370. Dr. Pace prescribed Ibuprofen 600 mg and
ice as well as a follow-up at the injection clinic and physical
therapy. On January 31, 2014, Plaintiff reported to another
doctor at Boston Medical Center, Dr. Jason Worcester, that the
pain in his knees was “8/10” but that he had “no other joint
pains.” R. 353-354. Dr. Worcester noted that both knees
exhibited no deformities, warmth, erythema, or
anterior/posterior drawer, no effusion on the right and
bilaterally good stability and full range of motion and intact
sensation. R. 353. Dr. Worcester administered a right knee
injection and recommended physical therapy. Plaintiff then
returned to Dr. Worcester for an injection in his left knee on
February 28, 2014. Dr. Worcester noted that the previous
injection on Plaintiff’s right knee provided “good relief” and
that “[the knee] has remained relatively pain free except when

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[Plaintiff] does a lot of walking.” R. 332. Plaintiff reported
“no other complaints” at that time. Id.
On June 6, 2014, Dr. Worcester examined Plaintiff and gave
him another steroid injection in his right knee. Dr. Worcester
noted, “R knee small effusion w/o warmth or erythema,” “good
lat[eral] and med[ial] stability,” “full range of motion,” “+
crepitus,” “negative mcmurrays,” “hip/ankle are normal.” R. 326.
Plaintiff indicated that he “rides a stationary bike,” and
“plays basketball at times,” but that he had “not gone to
physical therapy.” Id. Dr. Worcester also wrote that “[range of
motion] and streng[th] exercise were reviewed” with the
Plaintiff. R. 328. On August 27, 2014, Plaintiff reported to Dr.
Pace that he had an injection over the summer that was helpful
but that the pain his knees had returned. Dr. Pace wrote that
Plaintiff was benefiting from the steroid injections.” Dr. Pace
also noted Plaintiff was “referred to PT last visit, never went,
placed referral again.” R. 349. Dr. Pace directed Plaintiff to
follow up in 6-7 months. On February 24, 2015, Plaintiff
returned to Dr. Pace reporting that his knees continued to be
“very painful in cold weather.” R. 320. Dr. Pace noted that
Plaintiff was “non-compliant with PT,” and again referred him to
physical therapy for his knee pain. R. 321.
On March 24, 2015, Plaintiff visited an orthopedist at
Boston Medical Center, Dr. Alysia Green, for treatment of his
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chronic knee pain. Plaintiff reported to Dr. Green that he was
experiencing bilateral knee pain, ranking it as 7/10. He also
stated that movement aggravates the pain and that he was not
taking any daily pain medications. Dr. Green recorded
“tenderness to palpation over the medial patellar retinaculum
bilaterally as well as the medial joint lines. There is mild
crepitus and he has pain with patellofemoral grind testing.” R.
687-688. She also noted, “no bony defect, [n]o swelling, [n]o
effusions, [n]o tenderness to palpation over the patellar or
patella tendons.” R. 687. X-rays taken that day showed
“fragmentation of the lateral tibial spine [in the right knee]”
as well as “some mild degenerative changes in the medial and
lateral compartments of the right knee with mild degenerative
changes in just the medial compartment of the left. No loose
joint bodies.” R. 405, 688. Dr. Green reviewed the x-rays with
Plaintiff and chose to hold off on further injections. R. 688.
Dr. Green noted, “[t]he patient was agreeable to [no
injections]. He is going to start his physical therapy so we
will start more conservatively.” R. 688.
On June 24, 2015, Plaintiff saw Dr. Pace and reported
“[h]aving occ[asional] peripheral edema, sometimes bad, in legs
bilaterally.” R. 1057. In the objective physical exam, Dr. Pace
recorded “[m]ild medial patellar tpp, mild crepitus.” Id. A
month later, Plaintiff went back to Dr. Pace. Plaintiff reported
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he had an upcoming appointment for an injection and that he was
“[b]iking 3x/wk using helmet.” R. 1060. Dr. Pace noted that
Plaintiff had gained about fifteen pounds over the past year.
They discussed a plan to have Plaintiff continue exercising via
biking and to start making healthier eating choices.
On July 31, 2015, Plaintiff returned to Dr. Green
complaining of bilateral knee pain. He requested and received a
left knee injection from Dr. Green and reported that his right
knee was “not causing him pain.” R. 733-734. Dr. Green noted
that Plaintiff had “mild crepitus,” and “[p]ain with
patellofemoral grind testing.” R. 734. Her notes also indicate,
“pain with palpation over the medial joint line on the left
knee” but “[n]o pain to palpation over the medial joint line on
the right [knee] and no tenderness to palpation of either
lateral join lines.” Id.
On January 19, 2016, Plaintiff told Dr. Pace that he had
been experiencing pain in the ball of his right foot for about
six weeks. X-rays taken on January 19, 2016 revealed: “[n]o
fracture. Bone alignment is anatomic. Mild degenerative changes
of the 1st metatarsophalangeal joint.” R. 1139. On February 23,
2016, Dr. Pace noted that Plaintiff had “ongoing knee pain” and
was “trying Bengay.” R. 1084. In the “Assessment/Plan” section
of his notes, Dr. Pace indicated “osteoarthritis of both knees”

10

and “refer to PT” as well as an “Ambulatory Referral to Physical
Therapy: General.” Id.
II.

Treating Source Evaluation

On July 13, 2016, Dr. Pace completed a Physical Residual
Functional Capacity (“RFC”) questionnaire on behalf of
Plaintiff. She noted that he suffered “[d]epression,”
“[b]ilat[eral] knee osteoarthritis,” “[g]un shot wound,” and
“wrist pain.” R. 742. In connection with his physical ailments,
she recorded that Plaintiff suffered “severe intermittent pain
in bilat[eral] knees [and] back,” “stiffness in back,” and
“L[eft] elbow/wrist restriction in [range of motion].” Id. She
also reported that Plaintiff’s depression and anxiety were
psychological conditions affecting the Plaintiff’s physical
condition. Id. With respect to Plaintiff’s RFC, Dr. Pace
estimated that he could sit for 20 minutes at a time; stand for
15 minutes at a time; sit, stand, and walk for 2 hours total in
an 8-hour workday. R. 744. Dr. Pace answered “Yes” to a question
asking, “Will your patient sometimes need to take unscheduled
breaks during an 8 hour working day?” R. 745. Dr. Pace answered
“Yes” to a question asking, “Does your patient need a job which
permits shifting positions at will from sitting, standing or
walking?” R. 744. Dr. Pace recorded that Plaintiff would
“Occasionally” be able to lift 10 pounds and his impairments
would produce “good days” and “bad days.” R. 745-746. Dr. Pace
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opined that Plaintiff’s impairments would cause him to be absent
from work “About three times a month.” R. 746.
III. State Agency Reviewing Physicians’ Diagnosis
On December 15, 2015, state agency reviewing physician Dr.
Swaran Goswami found that Plaintiff was “limited in lower
extremities,” and should never climb ropes, scaffolds, or
ladders. R. 101. Dr. Goswami also explained that Plaintiff had
“early” degenerative joint disease of the bilateral knees. Id.
On January 5, 2016, another state agency reviewing
physician, Dr. Fischer, opined that Plaintiff is “[m]oderately
limited” in his ability to: “understand and remember detailed
instructions,” “interact appropriately with the general public,”
“accept instructions and respond appropriately to criticism from
supervisors,” and “get along with coworkers or peers without
distracting them or exhibiting behavioral extremes.” R. 102.
Both reviewing physicians in charge of making the
determination found, based on the documented findings, that
Plaintiff was “not disabled” and retained the capacity to work
at a light level of exertion. R. 90, 104.
IV.

Hearing Testimony

At a hearing before the ALJ on September 9, 2016, Plaintiff
testified that he continues to experience chronic pain in his
back, knees, and feet. He estimated that his pain is an 8/10 and
that it grows worse in cold weather. Due to this persistent
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pain, Plaintiff claimed he can only walk continuously for a
block and a half at a time, and he is unable to bend at the
waist to touch his knees or toes without experiencing “a lot of
pain.” He also testified that he can only sit for fifteen to
twenty minutes at a time, can only lift objects weighing less
than 10 pounds, and cannot any lift objects off the ground.
Plaintiff claimed that the pain was so severe that he was unable
to participate in physical therapy to treat his underlying
medical conditions.
LEGAL STANDARD
Under the Social Security Act, a claimant seeking benefits
must prove that he is unable “to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment . . . for a continuous period of
not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). The ALJ uses a five-step sequential evaluation
process to assess a claim for disability benefits. See 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4); Purdy v. Berryhill, 887 F.3d
7, 9-10 (1st Cir. 2018). The evaluation ends at any step if the
ALJ finds that the claimant is or is not disabled. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4). The steps are as follows:
1) if the applicant is engaged in substantial gainful
work activity, the application is denied; 2) if the
claimant does not have, or has not had within the
relevant time period, a severe impairment or
combination of impairments, the application is denied;
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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” [“RFC”] is
such that he or she can still perform past relevant
work, the application is denied; and 5) if the
applicant, given his or her [RFC], education, work
experience, and age, is unable to do any other work,
the application is granted.”
Purdy, 887 F.3d at 10 (quoting Seavey v. Barnhart, 276 F.3d 1, 5
(1st Cir. 2001)). A claimant’s RFC is “the most [the claimant]
can still do despite [her] limitations.” 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). Past relevant work encompasses
“work that [the claimant has] done within the past 15 years,
that was substantial gainful activity, and that lasted long
enough for [her] to learn to do it.” Id. §§ 404.1560(b)(1),
416.960(b)(1). If a claimant cannot still perform her past
relevant work, the ALJ will assess whether there is any other
work the claimant “can adjust to” that “exist[s] in significant
numbers in the national economy.” Id. §§ 404.1560(c)(1),
416.960(c)(1).
The claimant bears the burden of proof for steps one
through four. Purdy, 887 F.3d at 9. If the analysis proceeds to
step five, the Government bears the burden of proof to present
evidence of specific jobs the applicant can perform. Id. at 10.
PROCEDURAL HISTORY
On March 6, 2015, the Plaintiff filed an application for
SSI alleging disability beginning on July 25, 2014. The claim
14

was denied initially on November 1, 2015 and upon
reconsideration on January 5, 2016. On January 28, 2016, the
Plaintiff filed a written request for a hearing, which was held
on September 9, 2016. Estelle R. Hutchinson, an impartial
vocational expert appeared at the hearing. The Plaintiff
testified with the assistance of a Spanish interpreter, and
Attorney Eneida Sanchez represented the Plaintiff.
On November 10, 2016, ALJ Henry J. Hogan issued his
decision. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since March 6, 2015, the
application date. At step two, the ALJ found that Plaintiff had
the following “severe” impairments: anxiety, post-traumatic
stress disorder, and affective disorder. He also found that
Plaintiff had the following “non-severe” impairments: diabetes
mellitus, osteoarthritis and allied disorders, sleep apnea,
obesity, and hypertension. At step three, the ALJ found that
Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of one
of the listed impairments in 20 C.F.R Part 404, Subpart P,
Appendix 1. Next, the ALJ assessed Plaintiff’s RFC and found the
following:
[Plaintiff] has the residual functional capacity to
perform light work as defined in 20 CFR 416.967(b)
except he can never climb ladders, ropes or scaffolds.
He can occasionally stoop, crouch, kneel, and crawl.
His work is limited to simple, routine and repetitive
15

tasks. He can have only occasional interaction with
the public that is superficial, interpersonal
interactions. He can have only occasional interaction
with co-workers involving no tandem tasks. He can work
with only occasional (less than one-third of an eighthour workday) supervision.
R. 41.
At step four, the ALJ found Plaintiff would be unable to
perform any past relevant work. At step five, the ALJ considered
the claimant’s age, education, work experience, and RFC and
found that jobs exist in significant numbers in the national
economy that Plaintiff can perform. Thus, the ALJ found that
Plaintiff had not been disabled, as defined in the Social
Security Act, since March 6, 2015 when he filed his application.
STANDARD OF REVIEW
A district court reviews an ALJ’s decision “to determine
‘whether the final decision is supported by substantial evidence
and whether the correct legal standard was used’.” Coskery v.
Berryhill, 892 F.3d 1, 3 (1st Cir. 2018) (quoting Seavey, 276
F.3d at 9). The substantial evidence standard is “not high” and
requires only “such relevant evidence as a reasonable mind might
accept as adequate to support [the] conclusion.” Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). “In applying the
‘substantial evidence’ standard, the Court must bear in mind
that it is the province of the ALJ, not the Court, to find

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facts, decide issues of credibility, draw inferences from the
record, and resolve conflicts in the evidence.” Johnson v.
Colvin, 204 F. Supp. 3d 396, 407 (D. Mass. 2016) (citing
Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st
Cir. 1991)).
In reviewing for legal error, “[f]ailure of the [ALJ] to
apply the correct legal standards as promulgated by the
regulations or failure to provide the reviewing court with the
sufficient basis to determine that the [ALJ] applied the correct
legal standards are grounds for reversal.” Weiler v. Shalala,
922 F. Supp. 689, 694 (D. Mass. 1996). Where application of the
correct legal standard could lead to a different conclusion, the
agency’s decision must be remanded. Ward v. Comm’r of Soc. Sec.,
211 F.3d 652, 656 (1st Cir. 2000). However, remand is not
necessary if it “will amount to no more than an empty exercise.”
Id.
DISCUSSION
Plaintiff identifies four errors in the ALJ’s decision that
he believes require reversal and remand. First, the ALJ erred at
step two by finding Plaintiff’s bilateral osteoarthritis of the
knee to be a non-severe condition. Second, the ALJ erred at step
four in failing to properly evaluate Plaintiff’s subjective pain
symptoms as part of the RFC analysis. Third, the ALJ also erred
at step four by not giving Dr. Pace’s RFC assessment controlling
17

weight. Fourth, the ALJ erred at step five by failing to
consider his English illiteracy in assessing his ability to find
gainful employment. The Court agrees with Plaintiff that the ALJ
failed to properly weigh the medical opinions by discounting the
opinion of his treating source. Accordingly, the Court does not
address the substance of Plaintiff’s alternative arguments. The
ALJ’s failure to give Dr. Pace’s opinion controlling weight
requires the case be remanded for a new hearing.
I.

The Treating Source Rule
Under the applicable regulations, a “medical source” is “an

individual who is licensed as a healthcare worker by a State and
working within the scope of practice permitted under State or
Federal law.” 20 C.F.R. §§ 404.1502(d), 416.902(i). An
“acceptable medical source” includes a “licensed physician.” Id.
§§ 404.1502(a)(1), 416.902(a)(1). A “treating source” is an
“acceptable medical source who provides [the claimant] with
medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with [the claimant].” Id.
§§ 404.1527(a)(2), 416.927(a)(2). Dr. Pace qualifies as a
treating source because she is a primary care physician who saw
Plaintiff at multiple appointments over four years.
The ALJ must give “[c]ontrolling weight . . . to a treating
physician’s opinion on the nature and severity of a claimant’s
impairments if the opinion is ‘well-supported by medically
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acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence’ in the
record.” Johnson, 204 F. Supp. 3d at 409 (quoting 20 C.F.R. §
404.1527(c)(2)). Even if not given controlling weight, a
treating source’s medical opinion generally receives more weight
than opinions from other medical sources. 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2); Purdy, 887 F.3d at 13.2
That said, several factors determine the appropriate weight
to give to the opinions of treating and other medical sources.
20 C.F.R. §§ 404.1527(c), 416.927(c). For all sources, the ALJ
must consider whether the source examined the claimant, the
support the source provides for her opinion, the consistency of
the opinion with the record as a whole, and the specialty of the
source. Id. For a treating source, the length, nature, and
extent of the treatment relationship and frequency of
examination are also relevant considerations. Id.
§§ 404.1527(c)(2)(i)-(ii), 416.927(c)(2)(i)-(ii). An ALJ need
not expressly address each factor identified by the regulations
but must provide “good reasons” for the weight assigned to the
opinion of a treating source. Bourinot v. Colvin, 95 F. Supp. 3d

20 C.F.R. §§ 404.1520c, 416.920c contain new rules
regarding the weight given to treating sources that apply to
claims filed on March 27, 2017 or later. See Purdy, 887 F.3d at
13. Because Plaintiff filed his claim on March 6, 2015, the old
rules apply.
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161, 177 (D. Mass. 2015); see also 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2).
II.

Dr. Pace’s Opinion

The ALJ did not provide adequate reasons for his weighing
of the medical opinions, specifically Dr. Pace’s assessment of
Plaintiff’s RFC. Instead, the ALJ gave great weight to the
opinions of the non-examining state agency medical consultants
“to the extent that their assessments were consistent with the
medical evidence of record,” though he did acknowledge that they
differed regarding the severity of conditions. R. 43, 101, 102.
He afforded little weight to the opinion of Dr. Pace,
Plaintiff’s primary care physician and a treating source, on the
basis that Dr. Pace’s opinions were vague and unsubstantiated.
Not only did Dr. Pace provide an assessment of Plaintiff’s RFC,
but, on February 24, 2015, she wrote that Plaintiff had a
disability that “is expected to be of long and continued
duration” and “limits his ability to work in most employment
types.” R. 637. He also gave little weight to the opinion of Dr.
Hernandez who noted that Plaintiff had a disability that would
“limits his ability to work or perform one or more daily living
activities.” R. 42-43, 315.
The ALJ’s rationale for why he granted more authority to
certain opinions is unpersuasive and does not constitute the
necessary “good reasons.” The ALJ faulted Dr. Pace’s RFC
20

recommendation because it was on “pre-printed standard form.”
However, the doctor did more than just check boxes, and the form
included a more detailed description of Plaintiff’s ailments and
ability to function. The format of Dr. Pace’s RFC assessment
does not detract from the fact that her opinions are consistent
with the record as a whole and sufficiently specific to warrant
controlling weight. Compare Coggon v. Barnhart, 354 F. Supp. 2d
40, 53 (D. Mass. 2005) (treating a disability questionnaire
completed by a doctor as an advocacy opinion warranting little
weight, because the results of the questionnaire were
unsupported by the record and the doctor was no longer actively
involved in treatment), with Kem v. Berryhill, 352 F. Supp. 3d
101, 114 (D. Mass. 2018) (finding the ALJ erred in disregarding
treating physician’s mental RFC questionnaire when the ALJ
failed to identify any specific parts of the record he found
inconsistent with the physician’s determinations).
Plaintiff has been diagnosed by several doctors with
serious physical conditions, at least two of whom -- Dr.
Hernandez and Dr. Pace -- have opined that these conditions will
limit his ability to function. The treating physicians’ opinions
are corroborated by the medical evidence in the record,
including the notes from the objective examinations and x-rays.
Over the course of numerous physical examinations spanning
multiple years, Plaintiff consistently reported suffering a
21

great deal of pain in his knees, back, and feet. Dr. Pace’s RFC
assessment, which she completed based on 4 years of treating
Plaintiff, notes “severe intermittent pain in bilat[eral] knees
[and] back.” R. 76. This is consistent with and supported by her
own objective findings, her lengthy treatment and observations,
and her evaluation of Plaintiff’s reports as to the severity of
his pain. See Carbone v. Sullivan, 960 F.2d 143 (1st Cir. 1992)
(unpublished table decisions) (observing that “objective medical
evidence of disabling pain need not consist of concrete
physiological data alone but can consist of a medical doctor’s
clinical assessment” (quoting Gatson v. Bowen, 838 F.2d 442, 447
(10th Cir. 1988)).
The ALJ also claimed that Dr. Pace’s RFC assessment is
inconsistent with Plaintiff’s activities of daily living
(“ADLs”). Specifically, the ALJ pointed to Plaintiff’s bike
riding as evidence that Dr. Pace’s opinion is not entitled to
controlling weight. Plaintiff testified before the ALJ that he
used a bicycle in the past for physical therapy at his doctors’
recommendation. However, he clarified that he only uses it now
once or twice a month because it is too painful to do more.
Plaintiff also reported to his doctors in 2014 and 2015 that he
would ride a bicycle a few times a week. As the ALJ noted
elsewhere in his opinion, the record evidence only suggests that
Plaintiff engaged in “occasional bicycling.” R. 41-42. This is
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not inconsistent with the severe intermittent knee and back pain
described by Dr. Pace, nor is it inconsistent with her
assessment of Plaintiff’s exertional limits. The ALJ evidently
disagreed with Dr. Pace’s assessment of the severity of
Plaintiff’s bilateral knee osteoarthrosis, but he is not
entitled to substitute his own lay opinion for that of a medical
source. See Banushi v. Barnhart, No. Civ. A. 06-10042-RWZ, 2007
WL 1858658, at *7 (D. Mass. June 26, 2007); see also Avery v.
Sec’y of Health & Human Servs., 797 F.2d 19, 23 (1st Cir. 1986)
(finding that the ALJ must “obtain detailed descriptions of
daily activities by directing specific inquiries about the pain
and its effects to the claimant” before discounting subjective
complaints of pain). Thus, the evidence of Plaintiff’s ADLs
currently in the record does not provide a sufficient basis for
discounting Dr. Pace’s opinion.
In sum, since the ALJ did not sufficiently justify giving
little weight to Dr. Pace’s opinion, remand is required. Lemieux
v. Berryhill, 323 F. Supp. 3d 224, 229 (D. Mass. 2018); see also
Linehan v. Berryhill, 320 F. Supp. 3d 304, 306 (D. Mass. 2018)
(“A goal of the treating source rule is to function as a
procedural safeguard. Where . . . the Court cannot ascertain ‘a
clear understanding of why the ALJ rejected [the treating
doctor’s] opinion,’ the goal of the treating source rule is not
met.” (second alteration in original) (citation omitted)
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(quoting Francis v. Comm’r Soc. Sec. Admin., 414 F. App’x 802,
804 (6th Cir. 2011))). Properly weighing the opinions of the
medical sources, the ALJ could well have reached a different
conclusion regarding Plaintiff’s RFC. See Ward, 211 F.3d at 656.3
ORDER
For the reasons stated above, the Court DENIES the
Government’s motion to affirm the Commissioner’s decision (Dkt.
No. 21) and ALLOWS Plaintiff’s motion to reverse and remand
(Dkt. No. 16).
SO ORDERED.
/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge

The Court also notes that the ALJ discounted the
Commonwealth of Massachusetts’ determination that Plaintiff is
disabled. Although the Commonwealth’s determination is not
controlling in the same way as a treating source’s opinion, the
ALJ still failed to provide persuasive reasons why he reached a
different conclusion as to Plaintiff’s condition. In discounting
the Commonwealth’s determination, the ALJ only provided the
reason that the Commonwealth and the Social Security
Administration have different durational requirements for a
condition to qualify as a disability (i.e., six months under the
Commonwealth’s standard versus one year under the federal
standard). Yet nowhere in the ALJ’s decision is the duration of
Plaintiff’s condition cited as a relevant issue.
3

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