Espada Martinez v. Astrue

Filing 23

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered. Plaintiff's 16 motion for judgment on the pleadings is DENIED, and the Commissioner's 18 motion to affirm is GRANTED. (Cicolini, Pietro)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_________________________________________
)
YELISKA ENID ESPADA MARTINEZ,
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE, Commissioner,
)
Social Security Administration,
)
)
Defendant.
)
__________________________________________)

Civil Action No.
12-30075 FDS

MEMORANDUM AND ORDER ON
PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS AND
DEFENDANT’S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
SAYLOR, J.
This is an appeal of the final decision of the Commissioner of the Social Security
Administration denying the application of plaintiff Yeliska Enid Espada Martinez for social
security disability insurance (“SSDI”) and supplemental security income (“SSI”) benefits.1
Espada contends that the ruling of the administrative law judge (“ALJ”) was in error because (1)
the ALJ did not properly evaluate the opinions of her nurse practitioner with regard to her
physical limitations, and (2) he did not properly evaluate and apply the opinions of her mentalhealth therapist.
Pending before the Court is plaintiff’s motion for judgment on the pleadings and
defendant’s motion to affirm the decision of the Commissioner. For the reasons set forth below,

1

The courts below as well as the administrative record largely refer to the plaintiff as Yeliska Espada. For
the sake of clarity, the Court will do the same.

the motion to affirm will be granted and the motion for judgment on the pleadings will be
denied.
I.

Background
Yeliska Espada is 29 years old. (AR at 96). She lives in Holyoke, Massachusetts with

her daughter. (Id. at 353; 360). She has no past work experience. (Id. at 995). She did not
complete high school, instead leaving in the tenth grade after repeating ninth grade twice. (Id. at
142). She primarily attended special-education classes while in school, and her reading and
writing skills tested at a second-grade level. (Id. at 182). She testified that she has twice
attempted the GED and has been unable to pass. (Id. at 993).
A.

Physical Impairments
1.

Asthma

Espada has suffered since childhood with severe persistent asthma. (Id. at 166; 395).
The record contains conflicting evidence as to the severity of her condition. In January 2002,
she told an examiner that she could not do any exercise because it triggered her asthma. (Id. at
180). However, a report from her pulmonologist in March 2002 suggested that she was capable
of some activity, stating that if she was “really active” she needed to sit down in order for her
wheezing to resolve. (Id. at 173).
Espada’s asthma was well-controlled between 2001 and 2003, with a doctor noting as
early as October 2001 that it “seem[ed] to be under excellent control.” (Id. at 166). In October
2002, her doctor noted that her asthma had not been seen “in ages” and that she had not been
treated by a physician for asthma in more than a year. (Id. at 249). A doctor’s note in March
2003 similarly indicated that she had not been admitted to a hospital for asthma exacerbations in

2

two years. (Id. at 405). She also reported exercising at her local gym during this time period.
(Id. at 448). Although she experienced occasional exacerbations between 2001 and 2003, they
could mostly be attributed to lack of access to asthma medication, including prednisone. (Id. at
166; 186–87).
Espada had two Physical Residual Functional Capacity Assessments (“RFCs”) completed
in 2002. (Id. at 185–190; 202–209). Both indicated that she was limited to climbing stairs or
ramps only “occasionally” and that her exposure should be limited to extreme heat, cold, fumes,
dust, and odors. (Id.). They also assessed her physical capacity at a level that allowed her to
“occasionally” lift 20 pounds, “frequently” lift ten pounds, and to stand or walk for about six
hours in an eight-hour work day. (Id.). The RFCs determined that she had unlimited ability to
sit, push, and pull during a normal work day, subject to her other physical limitations. The
second RFC, completed in July 2002, also limited her exposure to humidity and “hazards,”
including machinery and heights. (Id. at 206).
In January 2004, Espada experienced a “borderline obstruction” with no “evidence of
breathing difficulty.” (Id. at 401). Her exacerbations continued to coincide with periods where
her medication changed in some way; she does not appear to have been taking prednisone at the
time of the January exacerbation. (Id. at 400–01). In July 2004, she was instructed to taper her
prednisone usage, taking Advair instead. (Id. at 399). In October of the same year, she reported
asthma symptoms. (Id. at 463). Those problems continued into 2005. (Id. at 397). A doctor’s
note from that period suggests that she was not taking Advair or prednisone at that time, instead
taking only Foradil and Pulmicort. (Id.). Although she was healthy for a March 2005 visit, she
reported to the emergency room with asthma symptoms in May 2005 after tapering off her

3

prednisone use at the instruction of her physician. (Id. at 370; 388; 395). A note from a followup appointment suggests that she was not taking prednisone at the time of the May exacerbations
and had “been out of some of her asthma medications.” (Id. at 425).
Espada’s asthma remained relatively stable for the remainder of 2005. She reported
symptoms following a flu shot, which she explained was not uncommon for her. She also had
some breathing difficulty shortly after moving into an apartment that required fumigation. (Id. at
416; 419).
Espada had a third RFC completed in 2005, which did not indicate any of the lifting,
carrying, or standing restrictions assessed in the prior RFCs. (Id. at 521). The examiner instead
noted what he interpreted as good control of her asthma, and limited her only to avoiding
concentrated exposure to fumes, odors, and gases. (Id. at 524). A fourth RFC in September
2006 included the previous lifting, carrying, and standing limitations, as well as further limiting
the amount of time she could climb, balance, stoop, kneel, crouch, or crawl. (Id. at 745–48). It
reiterated the fume and temperature-related restrictions of previous RFCs. (Id.).
From the period between 2006 and the ALJ hearing in 2010, Espada’s asthma remained
largely stable, although she experienced acute exacerbations in October 2006, May 2008, and
April 2009, the last of which required an overnight hospital stay. (Id. at 839–47; 875–81;
909–14). The following day she reported that she was doing “very well.” (Id. at 926).
In February 2010, Robbie Lauter, a nurse-practitioner, completed a physical RFC. (Id. at
968–70).2 Lauter assessed that the Espada could sit for eight hours per eight–hour workday,
stand for two hours, and walk for one hour. (Id. at 968). She also assessed that Espada’s
2

Lauter’s RFC form did not match the SSA RFC form, and accordingly the limitations it assessed were not
always the subject of direct inquiry in previous RFC evaluations.

4

attendance at work would be “inconsistent or sporadic,” and limited her to only occasionally
lifting objects weighing 6–20 pounds. (Id.). She assessed that Espada could frequently lift
objects weighing up to five pounds. (Id.). Lauter also assessed limited hand movements, stating
that Espada could only occasionally grasp, push, pull, or execute fine manipulation. (Id. at 970).
She categorized Espada’s limitations due to pain as “moderately severe,” an assessment that
limited physical activity to periods of five to fifteen minutes at a time for no more than two hours
total per day. (Id.). The categorization also indicated that activity would be substantially
compromised in terms of speed or accuracy. (Id.). Finally, she concluded that Espada’s
symptoms would frequently be severe enough to interfere with attention and concentration, as
well as the ability to remember and carry out simple instructions. (Id.).
2.

Osteopenia

Espada also contends that she suffers from osteopenia. (Id. at 987).3 That condition
resulted from prolonged use of prednisone, which was used to treat her asthma. (Id. at 400). In
2003 she was assessed as having “minimally decreased bone mineral density” and was
recommended for osteopenia treatment. (Id. at 487). She began taking Fosamax once a week
with “no problems,” although she eventually claimed that the medication made her “shaky and
sleepy.” (Id. at 440, 662). She associated her hand pain with osteopenia, listing Fosamax as the
medication she took to treat her hand pain, which she claims “comes and goes” every day,
lasting approximately one half hour. (Id.). To further treat her condition, her physician
instructed her to exercise, as well as to increase her calcium intake. (Id. at 431, 440).
3

The record, the memoranda submitted by the parties, and the ALJ decision are inconsistent in their
references to Espada’s condition, and appear to use the terms osteopenia and osteoporosis interchangeably. The
diagnostic difference between those conditions is the measure of bone mass, with osteoporosis being the more severe
of the two. The ALJ ultimately found that the plaintiff suffers from osteopenia. (Id. at 30).

5

3.

Other Physical Impairments

Espada also suffers from Graves’ disease with thyroid ablation and allergic rhinitis. (Id.
at 779). Neither the record nor the plaintiff suggests that the first condition has an effect on her
ability to work, except to the extent that the medication makes her “shaky,” an assertion
discussed later in this memorandum. The allergic rhinitis appears to be relevant only as it relates
to her asthma.
B.

Mental Impairments
1.

Borderline Intellectual Functioning

Espada contends that she has borderline intellectual functioning, an assessment that has
repeatedly been confirmed by medical examiners. A consultation in 2002 placed her overall
academic achievement at the level of a second-grade child, and concluded that she had “lownormal intellectual functioning.” (Id. at 182). Subsequent assessments were in agreement, and
assessed largely identical limitations. A 2002 RFC found that she was moderately limited in her
ability to understand, remember, and carry out detailed instructions, but that she could learn
simple and multi-step directions. (Id. at 194). A psychiatric review prepared in conjunction with
that RFC also found that she had moderate difficulties in maintaining concentration, persistence,
and pace and had mild limitations on her daily life because of her impairment. (Id. at 200F). A
second RFC in 2002 made the same findings as the earlier assessment. (Id. at 224–27).
In 2005, an assessment that agreed with the diagnosis of borderline intellectual
functioning found her able to follow three-step instructions and remember three objects placed
out of view after five minutes. (Id. at 498–499). In 2005, her third RFC confirmed her
limitations with regard to her ability to follow detailed instructions, and also assessed a new

6

limitation on her ability to maintain attention and concentration. The RFC also found that she
was limited in her ability to complete a workday or week without interruption from
psychological symptoms, to get along with coworkers, to respond appropriately to workplace
changes, and to travel to unfamiliar places or use public transportation. (Id. at 515–16).
However, it also noted that, if required, she could do simple tasks for two-hour periods,
generally get along with co-workers, and handle changes and travel. (Id. at 518).
A 2006 examination found that although her academic testing was “deficient,” it
appeared “inconsistent with her history and level of functioning,” suggesting to the examiner that
“she functions somewhat higher in both reading and mathematics.” (Id. at 741). A 2006
psychiatric review and RFC assessed moderate difficulties in social functioning and maintaining
concentration and mild restrictions on daily living. (Id. at 763). The RFC did not find
significant limitations in her ability to carry out “very short and simple instructions.” (Id. at
767).
Finally, a 2009 evaluation found that she “did not put effort [into] the assessment phase”
of her examination, and found that academic testing which placed her at a first-grade level was
“an underrepresentation of her abilities” and inconsistent with previous results. (Id. at 903). The
examiner determined that Espada could understand and follow basic instructions, and could
“sustain attention to perform a simple repetitive task.” (Id. at 904). She also felt that Espada
was moderately limited in her ability to interact with others. (Id. at 906). A psychologist
examining that report concluded that she would have moderate difficulty with complex
instructions or work decisions, and mild restrictions in her ability to maintain social functioning,
concentration persistence, and pace. (Id. at 953–55).

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2.

Depression

Espada also contends that she suffers from depression, which she says is caused, at least
in part, by her health issues. (Id. at 741). Medical records from 2004 indicated that she took
antidepressants, which made her feel “brighter.” (Id. at 440). In August 2006, she reported that
she had been visiting Dr. Jackson, a therapist, twice a month for “nervousness and depression.”
(Id. at 684). Her therapist’s report in September 2006 diagnosed “major depression, recurrent,
non-psychotic [and] generalized anxiety.” (Id. at 736). He felt that she could not remember
“work-like tasks [or instructions].” (Id. at 684). By 2009, the therapist wrote that she had made
“some progress” with what he described as anger management, depression, and impulse control
disorder. (Id. at 965). He stated that her progress was slow, which he ascribed to her health.
(Id.). Finally, he commented that he found it “difficult to picture Ms. Espada functioning
successfully in the job market with limited skills and her poor ability to tolerate stressors.” (Id.
at 966). In 2009, an examiner reported that she was not taking her prescribed depression
medication. (Id. at 960).
C.

Daily Activities

At the time of her 2010 hearing, Espada lived alone with her daughter. Her daily
activities generally consisted of caring for her daughter and watching television. (Id. at 664).
She prepared meals for her daughter on a daily basis, and completed some household chores.
(Id. at 666). Espada stated that she ventured outside about three times per week, although she
did not like to go out because it worsened her depression. (Id. at 667; 989). She sometimes
played with her daughter in their backyard. (Id. at 499). She reported that she did, on occasion,
go shopping for clothes and food and that she was able to pay her bills, count change, handle a

8

savings account, and use a checkbook or money orders. (Id. at 667).4 She visited her mother’s
house “sometimes,” but reported needing reminders to go places. (Id. at 668). She testified that
she has been attending appointments at Holyoke Health Center, “sometimes two or three times a
week,” and has one friend who has visited her at her home. (Id. at 987; 990). She contends that
she has been getting up approximately two times per night to use her Nebulizer machine, which
she has also been using three times during the day. (Id. at 991).
D.

Vocational Expert Testimony

The ALJ solicited the input of a vocational expert during the hearing, initially posing the
following hypothetical:
This is a hypothetical female, 25 years of age with a tenth grade education,
obtained in the mainland of [the] United States and no past relevant work. The
tenth grade education was obtained under the auspices of special education
classes. This individual has a medical history which includes persistent, severe
asthma, allergic rhinitis, osteopenia, depression, [and] hypothyroidism status post
Graves’ disease with thyroid ablation. There is some question of heart disease[,]
for which she was given an echocardiogram. I want to limit this individual to a
light [e]xertional level and to indoor work with no concentrated exposure to dust,
fumes, strong odors, temperature or humidity extremes. It should be work that
would be a low probability of this individual being bumped aggressively . . . [.]
We are going to limit this individual to one to two step tasks.
(Id. at 995). The vocational expert reported that Espada, with those limitations, could work as an
assembler, with approximately 179,000 national jobs and 1,500 Massachusetts jobs; an
inspector, with approximately 71,000 jobs nationally and 2,700 in Massachusetts; or a packer,
with 110,000 jobs nationally and 2,000 in Massachusetts. (Id. at 996). She described the jobs as
“more [] stationary bench jobs.” (Id.). The ALJ then added an additional limitation that the
hypothetical worker should not have to have more than occasional interaction with coworkers
4

Espada’s ability to pay bills was indicated by a checkmark on a 2006 SSA form. In a 2009 psychological
evaluation, she alleged that did not know how to pay her bills. (Id. at 903).

9

and supervisors and none with the public. (Id.). The vocational expert testified that that would
have no adverse affect on the number of positions. (Id.). Finally, the ALJ limited the
hypothetical to jobs which require a “clean” environment, such as computer parts or medical
supplies. (Id.). The vocational expert explained that that would reduce the numbers from the
previous hypothetical by one-third. (Id. at 997). The number of inspector jobs, for example,
decreased to approximately 47,000 nationally, with 1,400 in Massachusetts. (Id.).
The ALJ then asked Espada how much time her daytime medical treatments required and
whether they imposed any limitation on her ability to perform activities immediately afterward.
(Id.). Espada testified that the treatments took approximately twenty minutes and that she
needed to “relax and take a couple of minutes and just wait.” (Id. at 997). She commented that
after a treatment she becomes “nervous” and that her “hands start shaking.” (Id. at 997).
However, she also testified that there was nothing she needed to do post-treatment before she
could return to “household tasks.” (Id. at 998). The ALJ then asked the vocational expert
whether accommodating twenty-minute breaks in both the morning and afternoon would be
possible. (Id.). The vocational expert responded that it would be a reasonable accommodation
unless the shakiness would preclude her from using her hands to “maintain a production pace.”
(Id.). Espada then testified that “sometimes when [she goes to] get something to eat [she
shakes] so much [that] things fall out of [her] hand.” (Id. at 999).
E.

Procedural History

In November 1995, an application for SSI under Title XVI was filed on behalf of the
Espada on the basis that she had an impairment that would render an adult disabled. (Id. at 303).
That application was successful. On October 13, 2001, she attained the age of 18, prompting a

10

redetermination of her disability. (Id. at 583). On March 1, 2002, she was notified that she was
no longer considered disabled, effective February 27, 2002, and that her SSI payments were
scheduled to end in May 2002. (Id. at 43–52). On May 27, 2002, her application for Child’s
Disability Benefits based on her father’s income was also denied. (Id.. at 283). She requested
reconsideration for both decisions and had a hearing before a disability hearing officer on
October 9, 2002. (Id. At 63–74). Both decisions were affirmed on October 23, 2002. (Id. at
55–62; 77–79). On October 30, 2002, she requested an ALJ hearing, which was held on
November 12, 2003. (Id. at 80–81). On January 7, 2004, the ALJ affirmed that she was no
longer disabled as of October 13, 2001, and, in a separate decision, denied her application for
Child’s Disability Benefits. (Id. at 297–317). She then filed a request for review with the
Appeals Council on November 15, 2004. (Id. at 318). The Appeals Council remanded both
claims because a recording of the November 2003 hearing could not be located, rendering the
record incomplete. (Id. at 329–35). The Appeals Council also instructed the ALJ to associate all
earlier claims for SSI benefits, including a Title XVI claim. (Id. at 331).
Upon remand, the ALJ affirmed that Espada’s disability had ceased effective February
27, 2002 and denied her Child’s Disability Benefits Claim. (Id. at 555–67). She filed a request
for review with the Appeals Council on August 1, 2006. (Id. at 572–80). On August 8, 2006,
the Appeals Council issued a remand order requiring the ALJ to adjudicate Espada as an adult
during the time periods in question rather than under a standard of continuing review from her
childhood claims. (Id. at 581–86). The Appeals Council also ordered that the ALJ correct the
onset date to include the periods encompassed by Espada’s 2005 Title XVI claim as well as the
period after the February 27, 2002 date and prior to Espada’s attaining the age of 22 on October

11

13, 2005. (Id.). Finally, the Appeals Council required that the ALJ evaluate the opinions of
Espada’s therapist, Dr. Jackson. (Id.).
Pursuant to those instructions, a third ALJ hearing was held on January 15, 2010. (Id. at
979–1000). On April 22, 2010, a decision was issued denying Espada benefits. (Id. at 21–36).
She filed a request for review with the Appeals Council on June 2, 2010. (Id. at 17–18). On
February 10, 2010, the Appeals Council denied the request, thereby affirming the ALJ’s
decision. (Id. at 13–16). She has now appealed that decision to this Court.
II.

Analysis
A.

Standard of Review

Under the Social Security Act, this Court may affirm, modify, or reverse the final
decision of the Commissioner, with or without remanding the case for a rehearing. 42 U.S.C. §
405(g). The Commissioner’s factual findings, “if supported by substantial evidence, shall be
conclusive,” 42 U.S.C. § 405(g), because “the responsibility for weighing conflicting evidence,
where reasonable minds could differ as to the outcome, falls on the Commissioner and his
designee, the ALJ. It does not fall on the reviewing court.” Seavey v. Barnhart, 276 F.3d 1, 9
(1st Cir. 2001) (citation omitted); Rodriguez Pagan v. Secretary of Health & Human Servs., 819
F.2d 1, 3 (1st Cir. 1987) (noting that the court “must affirm the Secretary’s resolution, even if the
record arguably could justify a different conclusion, so long as it is supported by substantial
evidence”). Substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
Questions of law, to the extent that they are at issue in the appeal, are reviewed de novo. Seavey,
276 F.3d at 9.

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B.

Standard for Entitlement to SSDI or SSI Benefits

An individual is not entitled to SSDI or SSI benefits unless he or she is “disabled” within
the meaning of the Social Security Act. See 42 U.S.C. §§ 1382(a)(1), 1382c(a)(3) (setting forth
the definition of disabled in the context of SSI). “Disability” is defined, in relevant part, as the
“inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
1382c(a)(3)(A). The impairment must be severe enough to prevent the plaintiff from performing
not only past work, but any substantial gainful work existing in the national economy. 42 U.S.C.
§ 1382c(a)(3)(B); 20 C.F.R. §§ 404.1560(c)(1), 416.960(c)(1).
The Commissioner uses a sequential five-step analysis to evaluate whether a claimant is
disabled. See 20 C.F.R. § 404.1520. 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 . . . 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 . . . 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, 276 F.3d at 5; see 20 C.F.R. § 404.1520(a)(4).5 The claimant has the burden of
production and proof during steps one through four, and the Commissioner has the burden at step
five to offer evidence of specific jobs in the economy that the applicant can perform. Freeman v.
Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At that juncture, the ALJ assesses the claimant's
5

“All five steps are not applied to every applicant, as the determination may be concluded at any step along
the process.” Seavey, 276 F.3d at 5.

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RFC in combination with the "vocational factors of [the claimant's] age, education, and work
experience," to determine whether he or she can "engage in any . . . kind of substantial gainful
work which exists in the national economy." See 20 C.F.R. § 404.1560(c)(1); 42 U.S.C. §§
423(d)(2)(A), 1382c(a)(3)(B).
C.

Administrative Law Judge’s Finding

In evaluating the evidence, the ALJ conducted the five-part analysis called for by SSA
regulations. First, he concluded that plaintiff has not engaged in substantial gainful activity
since the alleged onset date of the disability. (Id. at 30). Second, he found that petitioner’s
asthma, allergic rhinitis, osteopenia, Graves’ disease with thyroid ablation, borderline
intellectual functioning, and depression were all severe impairments. (Id.). Third, he concluded
that those medically determinable impairments did not meet or medically equal one of the listed
impairments in Appendix 1, Subpart P, Regulation No. 4. (Id. at 31). At the fourth step, he
found that
[Espada] has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b). [She] can lift 20 pounds occasionally and 10
pounds frequently. She can sit, stand, and walk for six hours each per 8-hour day.
She is limited to indoor work with no concentrated exposure to dust, fumes,
strong odors, temperature or humidity extremes. She requires work with low
probability of being bumped aggressively (prophylactically for osteopenia). She is
limited to simple, one-to-two step tasks and requires no more than occasional
interaction with coworkers and supervisors and none with the public.
(Id. at 32). Because the plaintiff has no relevant work experience, the ALJ proceeded to the fifth
step and combined that residual functional capacity assessment with her age, education, and
work experience in conjunction with the Medical-Vocational Guidelines, 20 CFR Part 404,
Subpart P, Appendix 2. That led to a conclusion that plaintiff could perform some, but not all, of
the exertional demands at the “light work” level. (AR at 32).
14

The ALJ then consulted with a vocational expert to determine whether jobs existed in the
national economy for an individual with the plaintiff’s age, education, work experience, and
residual functional capacity. Based on that testimony, the court found that even if an additional
environmental limit were put into place limiting her to only “clean” environments, a “significant
numbe[r] of jobs” were still available. (Id. at 35–36). As discussed above, according to the
vocational expert’s testimony as accepted by the ALJ, approximately 120,000 clean jobs fitting
plaintiff’s qualifications as determined by the ALJ exist nationally, with approximately 3,200 in
Massachusetts. (See id. at 997).
The ALJ declined to give controlling weight to nurse practitioner Robbie Lauter’s RFC,
explaining that he considered the state agency assessments’ less stringent limitation to “generally
be accurate reflections of the claimant’s residual functional capacity,” and that as a nurse
practitioner, Lauter does not qualify as an acceptable medical source whose opinion is entitled to
controlling weight. (Id. at 33–34). The ALJ gave two principal reasons for declining to give
weight to Lauter’s assessment. First, he explained that it was internally inconsistent, in that it
described physical limitations not inconsistent with sedentary work. (Id. at 34). Second, he
stated that it imposed upper-extremity limitations for which he found no objective basis in the
medical record. (Id.).
The ALJ gave moderate weight to a September 2009 opinion of plaintiff’s therapist, Dr.
Jackson, noting that he also did not qualify as an acceptable medical source. ( Id.).6 The ALJ

6

Although acknowledging that the ALJ did not consider Jackson an acceptable medical source, the plaintiff
appears to base portions of her objection on an assumption that Jackson is an acceptable medical source and thus
should be given the appropriate deference. Because, pursuant to 20 C.F.R. § 404.1513 (a), he does not qualify for
the acceptable-medical-source classification, plaintiff’s assertions that the ALJ erred in not granting Jackson’s
opinions controlling weight will be disregarded.

15

found that Dr. Jackson’s opinion was conclusory in nature, invasive of an area left to the
Commissioner’s discretion, and that it spoke to an area outside of its scope by discussing the
plaintiff’s physical limitations. (Id.). The ALJ did not give weight to limitations assessed by Dr.
Jackson in May 2006 on an SSA form, noting the brief period of treatment that had occurred by
that point as well as the inconsistencies between the SSA form and the remainder of the record.
(Id.).7
D.

Plaintiff’s Objections
1.

Nurse Practitioner Lauter

Plaintiff first objects to the ALJ’s treatment of the RFC prepared by nurse practitioner
Robbie Lauter. She contends that the ALJ “rel[ied] on the basis that [Lauter’s RFC] was
‘submitted by a less than acceptable medical source[,]’” rather than adequately explaining his
treatment of the opinion. (Pl. Br. at 13).
An ALJ must give controlling weight to the opinion of an “acceptable” treating source
when that opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with other substantial evidence.” See 20 C.F.R. §
416.927(c)(2)–(6); 20 C.F.R. § 404.1513. If an ALJ does not give controlling weight to a
treating source’s opinion, he or she must consider the length, nature, and extent of the treatment
relationship, the opinion’s supportability and consistency with the record as a whole, whether the
treating source specializes in the area, and any other factors brought to the attention of the ALJ
by the parties. See 20 C.F.R. § 416.927(c)(2)–(6). The ALJ must also provide “good reasons”

7

The Court was unable to obtain copies of the May 15, 2006 SSA form. (Id. at 34). Because plaintiff has
not objected to the ALJ’s characterization of that document, the Court will accept those descriptions as provided
where necessary.

16

for the weight ultimately assigned to the opinion. (Id.).
However, those restrictions apply only to “acceptable medical sources,” a classification
for which nurse practitioners do not qualify. See 20 C.F.R. § 404.1513(a), 416.913. Nurse
practitioners are considered “other sources,” whose evidence may be used to show the severity
of impairments and how they affect a patient’s ability to work. (Id.). Plaintiff’s objection
implies that an ALJ must adequately explain his treatment of the opinion of an “other source,” a
rule that has no basis in any of the precedent she cites. (Pl. Br. at 14).
Plaintiff’s sole citation for the proposition that an ALJ must “adequately explain the
weight given to [the evidence of the other source]” is Taylor v. Astrue, 899 F. Supp. 2d 83 (D.
Mass. 2012). However, that opinion itself differed as to whether such an explanation is truly
mandated. First, as plaintiff notes, the court cited to SSR 06-03P (S.S.A.), 2006 WL 2329939,
which explains that “other sources” should be “evaluated” on “key issues.” (Pl. Br. at 15) (citing
Taylor, 899 F. Supp. 2d at 88) (citing SSR 06-03P). However, the regulation does not explicitly
impose a strict requirement to provide an in-depth explanation of the ALJ’s reasons for his
treatment of the opinion. Instead, as the Taylor court explained, the regulation requires only that
an ALJ “generally” should elaborate on the weight he assigns to these other sources so that a
subsequent reviewer or the claimant may follow his reasoning. (Id.) (emphasis added). The
Taylor court correctly pointed out that an ALJ “is not required to provide ‘good reasons’ for the
weight assigned to such opinions or consult [the factors required to be considered for an
acceptable medical source].” (Id.). Accordingly, Taylor does not establish a bright line rule that
an ALJ must give a detailed explanation of the weight he assigned to “other sources.”
Even assuming a firm requirement both to evaluate an “other source’s” opinion and to

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explain the weight assigned to it, the ALJ did not violate that requirement. First, by noting his
objections to Lauter’s RFC, the ALJ demonstrated that he did in fact evaluate that opinion.
Second, as plaintiff notes, the ALJ pointed out that he was not required to give controlling
weight to Lauter’s opinion, because she is not an acceptable medical source. However, he went
on to explain his reasons. As discussed above, he first noted his disapproval of the “internal
inconsisten[cies].” (AR at 34). That was a reference to the fact that Lauter imposed a number of
limitations that would not preclude plaintiff from performing sedentary work in the first portion
of the RFC assessment and then imposed unsubstantiated limitations that would essentially
render plaintiff incapable of performing any level of work in the latter half of the assessment.
Second, the ALJ objected to the upper-extremity limitations that Lauter imposed on the basis
that they were unsubstantiated by the record. Plaintiff’s memorandum of law points to reports in
the record that show she had shaky hands. However, plaintiff does not refer to any information,
objective or otherwise, that definitively precludes the grasping or pulling that Lauter claims
would have been only “occasionally possible” for the plaintiff, nor do the other examiners echo
Lauter’s assessment. That left a conflict in the evidence for the ALJ to resolve. The ALJ could
have chosen to assign more weight to that report, or to interpret plaintiff’s reports of shakiness as
an upper-extremity limitation, but the lack of such limitations imposed by other examiners
provides substantial evidence for not doing so. While that portion of the ALJ’s opinion could
have been more artfully phrased, it is possible to follow his reasoning, and to discern that
Lauter’s RFC was not given substantial weight.8

8

Plaintiff points to the fact that the ALJ discussed Lauter’s limitations in the context of sedentary work
while he found that the plaintiff is capable of modified light level work. (P. at 37). However, the ALJ appears to
refer to sedentary work as evidence that Lauter’s opinion was less credible because of internal inconsistency rather
than because it was inconsistent with his own RFC assessment.

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Again, the ALJ was not required to give “good reasons” for his treatment of an “other
source’s” opinion. At most, he was obligated to explain his reasoning in a manner that is
possible for subsequent reviewers to follow, a burden he met here. Accordingly, plaintiff is not
entitled to judgment on the pleadings on this basis.
2.

Dr. Jackson

Plaintiff also objects to the ALJ’s evaluation of Dr. Jackson’s opinions.9 First, she points
to the ALJ’s failure to discuss an evaluation form completed by Dr. Jackson in 2006. (Id. at
735–738). Again, however, there is no clear requirement that the ALJ explain his treatment of
the opinions of such “other sources,” and even if there were, the ALJ’s actions would still be
acceptable.
The First Circuit has held that “an ALJ is not required to expressly refer to each
document in the record, piece-by-piece.” Rodriguez v. Sec'y of HHS, 1990 WL 152336, at *1
(1st Cir. Sept. 11, 1990). In Coggon v. Barnhart, 354 F. Supp. 2d 40, 55 (D. Mass. 2005), the
court suggested two requirements for an ALJ decision to be upheld even when the ALJ neglects
to address certain evidence. First, the decision that contradicts the neglected evidence should be
supported by citations to substantial medical evidence in the record. Id. at 55 (citing Lord v.
Apfel, 114 F. Supp. 3d 3, 13 (D.N.H. 2000). The ALJ did so here. He stated that he chose to
adopt the psychological assessments of the consultative examiners, as well as the plaintiff’s own

9

SSR 06-03P explains that licensed or certified psychologists qualify as treating sources. Dr. Jackson’s
credentials are not offered in the record, and the ALJ states that his opinion is rendered by a “less than acceptable
medical source,” an assessment in which respondent’s brief concurs. (Res. Br. at 15; AR at 34). Plaintiff’s brief
refers to Dr. Jackson as a “treating source,” which the SSA uses to refer to “acceptable medical sources.” However,
plaintiff’s brief also refers to Lauter as a “treating source,” and, coupled with the fact that plaintiff does not advance
an argument that Dr. Jackson qualifies as an acceptable medical source, this court will accept his designation as an
“other source.”

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statements, rather than Dr. Jackson’s assessments.
Second, Coggon indicated that evidence may rightly remain unaddressed if it may be
considered cumulative or would not appreciably help plaintiff’s position. See Coggon, 354 F.
Supp. 2d at 55. Dr. Jackson’s evidence from 2006 may be considered both cumulative and, in
part for that reason, evidence that would not support the claimant’s position. Dr. Jackson made a
subsequent evaluation of Espada’s mental health in 2009. The 2006 evaluation form was
recorded almost four years prior to the ALJ hearing, and, more importantly, three years prior to
the 2009 evaluation. A more recent assessment of plaintiff’s mental health would be far more
probative than considerably outdated information. Dr. Jackson himself noted in his 2009
memorandum that the plaintiff had made “some progress.” Thus, the 2009 report could
“reasonably could be viewed as incorporating more up-to-date information.” Renaudette v.
Astrue, 482 F. Supp. 2d 121 (D. Mass. 2007). The ALJ was well within the bounds of
reasonableness to consider Dr. Jackson’s 2009 opinion to be cumulative, and to find that the
2006 opinions would not have helped the claimant’s position. Therefore, the ALJ did not need
to address the 2006 evaluation even if a requirement to explicitly address the evidence of other
sources was imposed.10
10

Plaintiff also argues that the ALJ relied on plaintiff’s testimony about her day-to-day activities and
“ignore[d] medical evidence or substitute[d] his own views for an uncontroverted medical opinion.” Rose v.
Shalala, 34 F.3d 13, 18 (1st Cir. 1994). Rose, however, found that an ALJ may not substitute his own opinion for
the opinion of an acceptable medical source when there is no contradiction of the opinion in the record. Dr. Jackson
is not an acceptable medical source, nor is his opinion about her capabilities uncontroverted. Plaintiff also finds
fault with the ALJ’s analysis of her day-to-day activities. The case cited in support of that objection, Rohrberg v.
Apfel, 26 F. Supp.2d 303 (D. Mass. 1998), is readily distinguishable. Rohrberg addressed a scenario in which the
claimant’s day-to-day ability to attend to chores or activities was very unpredictable as a result of her disability.
(Id.). The court noted that an intermittent ability to perform activities did not render her capable of performing the
“regular activity needed for gainful employment.” Id. at 311. Here, however, the ALJ assessed plaintiff’s testimony
that she was “independent and self-motivated” with regard to regularly completing activities of daily living, rather
than pointing to clearly sporadic evidence of activity in support of his view that the claimant could regularly attend
work. Furthermore, the ALJ did not rely solely on plaintiff’s testimony, instead using it as support for his
acceptance of the examiner’s assessments.

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Plaintiff also objects to the treatment of Dr. Jackson’s 2009 opinion, on largely the same
basis as she objects to the treatment of Lauter’s RFC, apparently contending that the ALJ did not
adequately explain the reasons for his treatment of the opinion. Here, the ALJ clearly fulfilled
any requirement for explanation of his treatment by explicitly finding that the report was
inconsistent with the record at the time as well as “invasive of an area left to the Commissioner’s
discretion.” He also noted the lack of support provided by Dr. Jackson, particularly for his
assertion that it was “difficult” to picture the claimant working “with limited skills and her poor
ability to tolerate stressors.” In reaching those findings, the ALJ applied two of the factors set
forward for consideration in SSR 06-03P—supportability and inconsistency. Again, the ALJ
was not required to provide “good” reasons for his treatment of the opinion of an “other source,”
but he nonetheless did so here. Plaintiff makes a similar objection to the treatment of a 2006
SSA form completed by Dr. Jackson. However, the ALJ again utilized SSA factors to discredit
the report based on the brief period of treatment and its inconsistency with the record as a whole.
Accordingly, plaintiff’s objections are without merit.
Plaintiff’s final contention is that the amount of weight given to Dr. Jackson’s opinion is
not sufficiently clear. Specifically, she contends that the ALJ was required to detail which parts
of Dr. Jackson’s evidence he chose to accept and reject, citing as support Custodio v. Astrue,
2010 WL 3860591 (D. Mass. Sept. 27, 2010). However, that case does not contain the
quotations plaintiff includes, nor does it appear to support her argument. Plaintiff’s only other
citation in support of this proposition is an out-of-circuit case that speaks to disregarding
evidence from acceptable medical sources. See Pl. Br. at 19; see also Cotter v. Sec’y of HHS,
642 F.2d 700 (3rd Cir. 1980). Assuming that the ALJ was required to “adequately explain” the

21

weight he gave to Jackson’s opinion, this Court finds that it is possible to discern that Dr.
Jackson’s opinion has been disregarded where it conflicted with the evidence cited in support of
the ALJ’s opinion and with the ALJ’s Mental Functional Capacity Assessment itself. In any
event, it is certainly not the case here that the reviewing court cannot tell whether Jackson’s
evidence “was credited or simply ignored.” Cotter, 642 F.2d at 705. While the ALJ could have
explained his process with more clarity, this Court finds that the plaintiff is not entitled to
judgment on the pleadings on this basis.
III.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on the pleadings is DENIED,

and the Commissioner’s motion to affirm is GRANTED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: August 2, 2013

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