Simumba v. Astrue

Filing 21

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Commissioner's motion for an order affirming his decision, D. 19, is GRANTED and Simumba's motion for judgment on the pleadings, D. 15, is DENIED. (Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_________________________________________
)
)
SHERIE MULETT SIMUMBA,
)
)
Plaintiff,
)
)
Civil Action No. 12-30180-DJC
v.
)
CAROLYN COLVIN,1 Acting Commissioner,
)
Social Security Administration,
)
)
Defendant.
)
_________________________________________ )
MEMORANDUM AND ORDER
CASPER, J.
I.

March 17, 2014

Introduction
Plaintiff Sherie Mulett Simumba (“Simumba”) filed claims for disability insurance

benefits (“SSDI”) and supplemental security income (“SSI”) with the Social Security
Administration (“SSA”). Pursuant to the procedures set forth in the Social Security Act, 42
U.S.C. §§ 405(g), 1383(c)(3), Simumba brings this action for judicial review of the final decision
of Defendant Carolyn Colvin, Acting Commissioner of the Social Security Administration (“the
Commissioner”), issued by an Administrative Law Judge (“ALJ”) on March 4, 2011, denying
her claim. Before the Court are Simumba’s motion for judgment on the pleadings, D. 15,
requesting reversal of the ALJ’s decision, and the Commissioner’s motion to affirm that
decision, D. 19. In her motion, Simumba contends that the ALJ erred in denying her claim
because: (1) the ALJ improperly assigned the opinion from Simumba’s mental health provider
1

The Court substitutes Carolyn Colvin, Acting Commissioner of the SSA, as the
Defendant in this case. Fed. R. Civ. P. 25(d).

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“limited weight,” Pl. Mem., D. 16 at 8, and (2) the ALJ failed to evaluate properly Simumba’s
credibility. Id. at 15.
II.

Factual Background
Simumba was 43 years old at the time of the ALJ hearing and ceased working on April

21, 2005. R. 43, 81.2 She had previously worked as a receptionist, office assistant, cleaner,
cashier, custodian and presser. R. 71-75, 266. In her March 11, 2008 application for SSDI and
SSI with the SSA, she alleged disability due to a combination of migraines, breast cancer, back
pain and bone density issues. R. 111, 244.
III.

Procedural Background
Simumba filed claims for SSDI and SSI with the SSA on March 11, 2008, asserting that

she was unable to work as of April 21, 2005. R. 81-85. Her claims were denied after initial
review on July 21, 2008, R. 113-22, and again, upon reconsideration, on April 3, 2009. R. 12527. On June 25, 2009, Simumba filed a timely request for a hearing before an ALJ pursuant to
SSA regulations. R. 128-29. A hearing was held before an ALJ on November 9, 2010. R. 40.
In a written decision dated March 4, 2011, the ALJ determined that Simumba was not disabled
within the definition of the Social Security Act and denied her claims. R. 12-30. Simumba
appealed this decision. R. 6-10. On August 16, 2012, the ALJ notified Simumba that the SSA’s
Appeals Council had denied her request for review. R. 1-5. Accordingly, the ALJ’s decision is
the final decision of the Commissioner. R. 1.

2

“R.” refers to the administrative record that is filed at D. 14.
2

IV.

Discussion
A.

Legal Standards
1.

Entitlement to Disability Benefits and Supplemental Security Income

The Social Security regulations define disability 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 has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R.
§ 404.1505(a). The inability must be severe, rendering the claimant unable to perform any
previous work or any other substantial gainful activity for which the claimant is qualified and
exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505(a), 404.1511.
The Social Security regulations set out a five-step process that the Commissioner must
use when determining whether an individual has a disability and, thus, whether she is qualified to
receive Social Security benefits. 20 C.F.R. § 416.920. All five steps are not applied to every
applicant; the determination may be concluded at any step during the process. Id. First, if the
applicant is engaged in any substantial gainful work activity, then the application is denied. Id.
Second, if the applicant does not have, or has not had within the relevant time period, a severe
impairment or combination of impairments, then the application is denied. Id. Third, if the
impairment meets the conditions for one of the “listed” impairments in the Social Security
regulations, then the application is granted. Id. Fourth, if the applicant’s Residual Functioning
Capacity (“RFC”) is such that she can still perform past relevant work, then the application is
denied. Id. Fifth and finally, if the applicant, given her RFC, education, work experience, and
age, is unable to do any other work that exists in the national economy, the application is
granted. Id.

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2.

Standard of Review

This Court has the power to affirm, modify or reverse a decision of the Commissioner
upon review of the pleadings and record. 42 U.S.C. § 405(g). Such review, however, is “limited
to determining whether the ALJ used the proper legal standards and found facts upon the proper
quantum of evidence.” Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000) (citing
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)). The ALJ’s findings of fact are conclusive
when supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence exists “if a
reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to
support [the Commissioner’s] conclusion.” Rodriguez v. Sec’y of Health & Human Servs., 647
F.2d 218, 222 (1st Cir. 1981).
However, the ALJ’s findings of fact “are not conclusive when derived by ignoring
evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen, 172 F.3d at 35
(citations omitted). Thus, if the ALJ made a legal or factual error, Manso-Pizarro v. Sec’y of
Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (citation omitted), the Court may reverse
or remand such decision to consider new material evidence or to apply the correct legal standard.
See 42 U.S.C. § 405(g).
B.

Before the ALJ
1.

Medical History

Simumba presented the ALJ with documentation about her medical history, including
diagnoses and treatment, regarding the conditions upon which she relied in claiming a disability
in her application for SSDI and SSI.

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a)

Bipolar Disorder and Anxiety

On December 2, 2003, Dr. David C. Ghostley, Psy.D., met with Simumba for an initial
psychiatric evaluation.

R. 316.

Simumba reported to Dr. Ghostly that she was anxious,

depressed and paranoid. Id. Simumba reported suffering from migraines, numbness on the right
side of her body, hypertension, hyperthyroid, brain tumors and blood clots, noting that she could
physically recognize when the tumors and blood clots were growing.

Id.

Dr. Ghostley

conducted a mental status examination and recorded that Simumba’s eye contact, motor activity,
language skills, attention level, mathematical skills and memory functioning were adequate. R.
317.

He noted that her interpersonal skills were “sufficient to respond appropriately to

supervisors, coworkers and work pressures.” R. 318. Dr. Ghostley concluded that no prognosis
was necessary because Simumba’s “psychiatric symptom picture [did] not appear to be clinically
significant. . . .” Id. Acknowledging that medical records would be necessary to evaluate the
accuracy of Simumba’s reported medical conditions and history, Dr. Ghostley recorded in his
notes that the “veracity of her report is questionable,” particularly because Simumba stated her
motivation for the appointment was to obtain financial assistance with her medications, while
reporting during that same visit she was not taking any medications at that time. Id.
Simumba was evaluated at New Hope Community Clinic on May 20, 2008. R. 522. On
her medical history form, she reported anxiety and depression, along with headaches, pain,
arthritis, dizziness, nausea, seizures and high blood pressure. R. 520. She also reported taking
Fluoxetine for her depression. R. 523.
Cheryl Friss, M.Ed., conducted an initial evaluation of Simumba at the Center for
Psychological and Family Services (“CPFS”) on October 16, 2008. R. 608-12. Simumba
reported symptoms of depression, anxiety, high blood pressure, diabetes and migraines. R. 608.

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Friss initially diagnosed Simumba with major depressive disorder, R. 612, and referred Simumba
to a medical appointment with Gina Hughes, RNPC (“Hughes”) to obtain medication. R. 555,
602. Friss continued to treat Simumba with counseling sessions on a bi-weekly basis. R. 555.
Hughes treated Simumba two more times, noting on February 10, 2009 that Simumba was taking
Abilify and that she was “easily engaged” and “less irritable.” R. 599. On March 6, 2009, Friss
reported that Simumba appeared to have less anxiety and depressive symptoms. R. 598. Friss
discharged Simumba on April 28, 2009 because Simumba was planning to travel out of state for
an extended period. R. 595. At discharge, Friss stated that Simumba’s diagnosis was bipolar
disorder and that she had a Global Assessment of Functioning (“GAF”) score of 54.3 Id. She
also noted that Simumba had been engaged in treatment and was able to discuss past and current
issues. Id. Friss advised Simumba to continue treatment and monitor her health issues and that
they could continue treatment at anytime if Simumba returned to the area. Id.
The record contains two Psychiatric Disorder evaluation forms (DDS-0588) from
clinicians at CPFS, both of which are dated February 17, 2009. R. 548-55. Friss and Alan
Stone, Ph.D. signed one form, R. 555, while Hughes and Dr. Stone signed the other. R. 550.
The first two pages of both of the questionnaires are filled out with the same handwriting and all
of the answers are identical. R. 548-550, 553-55. Both questionnaires included a diagnosis of
bipolar disorder, stating that Simumba has trouble concentrating and with her short-term
memory, but “is able to function outside a highly structured living facility.” R. 548, 553. On the

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“The GAF scale is used to report a clinician’s judgment of an individual’s overall level
of psychological, social and occupational functioning and refers to the level of functioning at the
time of evaluation.” Vazquez v. Astrue, No. 10–cv–30136, 2011 WL 1564337, at *1 n.1 (D.
Mass. Apr. 25, 2011) (citing Diagnostic & Statistical Manual of Mental Disorders (“DSM-IV”)
at 32–33). A GAF of 51 to 60 indicates “moderate symptoms or moderate difficulty in social or
occupational functioning.” Vazquez, 2011 WL 1564337, at *1 n.1 (citing DSM-IV at 34)
(quotations omitted).
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third page of the questionnaire, on the one signed by Friss, it stated Simumba’s prognosis was
“fair,” R. 555, while on the one signed by Hughes, it stated that the prognosis was “guarded . . .
risk of reoccurrence of manic episode high,” R. 550. On her quarterly report dated March 6,
2009, Friss indicated that Simumba had made significant improvement; she cited Simumba’s
consistent maintenance of both her appointments and medication, her decreased depression and
anxiety and her ability to sleep through the night. R. 598. She also indicated Simumba’s current
diagnosis was bipolar disorder and that her GAF score was 56. Id.
On January 16, 2009, Dr. Jane Jagelman, Psy.D., met with Simumba for a psychiatric
consultation. R. 529. Simumba reported a history of medical problems, including hypertension,
migraines, seizures, bowel problems, nausea, breast cysts, congenital brain problems and brain
damage. Id. She reported that she had seventeen skull surgeries as a child, after being born with
elephantitis of the brain, and that she experienced three comas at ages four, six and thirty-two.
Id. Simumba also stated that she suffered from anxiety, self-inflicted cutting and has nightmares.
R. 531-32. She also reported a traumatic family history. R. 529. Dr. Jagelman recorded that
Simumba presented symptoms of borderline personality disorder, obsessive compulsive disorder
and post-traumatic stress disorder. R. 533. Dr. Jagelman noted that Simumba may have bipolar
disorder, but that she would have to be monitored over a longer period of time to make that
diagnosis. Id. Dr. Jagelman also stated that Simumba’s stories often seemed “implausible,” but
that it was likely there were medical records available to support her reports, adding that
Simumba did not appear psychotic, nor gave Dr. Jagelman any reason to distrust her. Id.
b)

Physical Conditions

Although not the focus of Simumba’s contentions on appeal, the Court briefly
summarizes the medical evidence related to Simumba’s history of physical conditions, including

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migraines, high blood pressure, fluid in her legs, back pain and poor bone density. The ALJ
discussed this evidence as part of her evaluation of Simumba’s credibility. R. 19-28.
The record reflects Simumba’s medical reports dating back to 2002, which have been
compiled from different sources, including physicians, hospitals and psychologists. Many of
these reports consist mainly of patient questionnaires and physician notes that primarily capture
Simumba’s self-reported medical history, some of which is contradicted, or at least, is not
supported by medical evidence. For example, Simumba reported having a hole in her skull as a
result of a tumor removal to Dr. Ghostley in 2003, R. 316, which she again reported to the
Southeast Alabama Medical Center in 2005, R 362, that she was born with a blood clot in her
brain to The Kirklin Clinic in 2007, R. 429, and elephantitis of the brain, as well as being born
with a tumor, to Dr. Jagelman in 2009, R. 529. No pediatric medical records are included in the
record, although a 2005 CT scan of Simumba’s head identified no abnormalities. R. 369.
Simumba has reported suffering from chronic migraines throughout adulthood. R. 54, 446, 534.
She testified that she retreats to a dark room alone when she has migraine pain. R. 54, 55. By
contrast, she has told at least one physician that the migraine pain dissipates within five minutes
of administering her medication. R. 534. Simumba also testified that her blood pressure
medication made her dizzy, despite having taken it for six years. R. 44-45. Further, Simumba
reported chronic back pain and had gone to the emergency room multiple times because of pain
and fear of a fracture. R. 49-52. The x-rays that Simumba in the record reveal no injuries or
deterioration of any bone or tissue. R. 322-23, 344. Finally, Simumba has reported a history of
breast lumps to several physicians. R. 429, 529. Simumba had a benign lump removed from her
breast in May 2007. R. 374, 384. Despite this medical evidence, she reported having had a

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history of breast cancer on a patient intake form in 2008, R. 606, and included breast cancer on
her SSA application for disability benefits. R. 111, 244.
2.

RFC Assessments and Other Evaluations by Massachusetts Disability
Determination Services

The record also contains two assessments of Simumba’s mental RFC and one assessment
of her physical RFC, dated July 18, 2008, January 31, 2009 and March 18, 2009 respectively. R.
451-78, 537-44, 556-77. Physicians retained by Disability Determination Services (“DDS”) of
the Department of the Massachusetts Rehabilitation Commission performed these assessments.
There were also three Disability Evaluation Services reports, dated September 28, 2008,
November 19, 2008 and January 29, 2009, respectively, completed by two physicians from
University of Massachusetts Medical School. R. 501-06, 509-15, 534-36.
On July 18, 2008, state agency psychiatrist M. Hope Jackson, Ph.D., completed a
Physiatrist Review Technique form for the periods April 21, 2005 through March 31, 2006, R.
451-464, and March 11, 2008 through July 18, 2008. R. 465-78. Dr. Jackson concluded that
there was “no medically determinable impairment” in either period, R. 451, 465, and that
Simumba has the “interpersonal skills sufficient to respond appropriately to supervisors,
coworkers and work pressure. R. 477. She also noted that the “claimant does not wish to pursue
a mental allegation which would require her attending an exam to establish a diagnosis.” Id.
Dr. S. Fischer, Psy.D., completed a Psychiatric Review Technique form on March 18,
2009. R. 556. Dr. Fischer indicated Simumba suffered from bipolar disorder. R. 559. He noted
on the evaluation form that Simumba experienced moderate limitations on maintaining
concentration and social functioning, but that there was insufficient evidence that these
limitations restricted her ability to perform the activities of daily living. R. 566; see also 20
C.F.R. § 404, Subpt. P, App. 1, 12.04(B) (listing impacts of affective disorders on daily living
9

activities, as recognized by SSA when determining disability). Dr. Fischer concluded in his
Mental RFC summary that Simumba did not have any impairment, could “carry out simple
instructions in a normal workday/workweek,” could “interact for work-related issues” and could
“adapt to routine stressors.” R. 572.
Dr. Robert McGan performed the physical RFC assessment on January 31, 2009. R. 53744. Dr. McGan’s physical RFC evaluations indicated that Simumba could occasionally lift and
carry twenty pounds, could frequently lift and carry ten pounds, could stand, walk and sit with
normal breaks for about six hours in an eight-hour workday and was not otherwise limited in her
ability to push and pull. R. 538. The physical evaluation indicated that she had no postural,
manipulative, visual, communicative or environmental limitations. R. 539-41. Dr. McGan also
determined that there was no treating or examining source statement in her file. R. 543. Dr.
McGan stated that light exertion would be “reasonable.” R. 539.
Dr. Vijay Patel completed two Disability Evaluation Services forms on behalf of
Simumba on September 28, 2008 and November 19, 2008, respectively. R. 501-06, 509-15. On
the September 28, 2008 form, Dr. Patel indicated that Simumba had been disabled for more than
one year due to an anxiety disorder. R. 501-02. Dr. Patel did not provide answers for most of
the questions on both questionnaires, leaving the medical/psychiatric history and additional
impairment sections blank. R. 503. Under the Physical Functioning sections, Dr. Patel wrote
“no opinion” as the only answer to all of the questions regarding Simumba’s limitations on
stooping, bending, carrying and executing activities of daily living independently. R. 503-04,
509-10. In the Mental Functioning section on both questionnaires, Dr. Patel wrote “to be
evaluated by psychiatrist.” R. 505, 512-14.

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Dr. Sun-Tien Lin examined Simumba on January 22, 2009 on behalf of Disability
Evaluation Services.

R. 534-36.

He conducted a full physical examination and reviewed

Simumba’s past medication list, as well as discussed her symptoms and medical history. Id. He
noted that Simumba complained of migraines four to five times per month, but that her
medication helped to relieve them within five minutes. R. 534. Dr. Lin questioned Simumba’s
medication list, stating that she only had filled her migraine medication twice in five months,
each time for a small number of pills, and that the nausea medication she reported taking daily
was not listed at all. R. 535-36. His impressions indicated allergies, migraines, back pain and
abdominal pain and a diagnosis of shin pain. R. 535.
3.

ALJ Hearing

At the November 9, 2010 administrative hearing, the ALJ heard testimony from two
witnesses, Simumba and vocational expert (“VE”) Mr. Michael Dorval. R. 42. Simumba
testified that she had last worked in 2004, but had stopped due to illnesses, including “migraines,
high blood pressure, back issues, hypertension.” R. 43. Simumba testified that she was on blood
pressure medication that caused dizziness, had cellulitis twice in the past year and had intervertebrae disc swelling. R. 44-50. She reported that these conditions had required her to visit
the emergency room several times in the past six years. R. 47-51. She reported experiencing
pain and numbness in her back and legs after sitting for too long and indicated her belief that she
may have had carpal tunnel syndrome. R. 64-65. She stated that she suffered from migraines
about twice a day, which cause her to need to sit alone in a dark room, but confirmed that her
migraine medication provided relief. R. 54-55. Simumba also took medication for bipolar
disorder, a condition which prevents her from working “because I’m edgy, I’m not attentive as I
was before, I’m not sure what I’m doing.” R. 56. She reported that she cried a lot, did not want

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to leave her room and had no interest in anything. D. 59. Her medications made her dizzy and
prevented restful sleep. R. 62-63. Simumba also testified that everything made her anxious,
including getting dressed and making decisions and that she felt overloaded around crowds of
people. R. 63-64. Simumba was living with relatives and had changed her living situation a
couple of times. R. 57.
The VE testified that Simumba had worked as a receptionist, which he categorized as a
sedentary, semi-skilled job with a specific vocational preparation level of 3. R. 77-78. He also
testified she had worked as a general airport cleaner, office clerk and laundry presser, all of
which he described as light, unskilled jobs.

Id.

The ALJ then presented the VE with a

hypothetical involving a person with a RFC that permitted light exertion and the ability to
concentrate for two hours at a time before requiring a break, but who had to avoid concentrated
exposure to hazardous machinery and asked the VE if that person would be able to perform
Simumba’s past work. R. 78. The VE responded that all of Simumba’s prior work could be
performed with that hypothetical RFC. Id. The ALJ then asked if, with the same conditions as
the first hypothetical including light exertion, but with no other restrictions and the same mental
considerations, a claimant could perform Simumba’s past work. Id. The VE gave the same
answer, acknowledging that a claimant in this second scenario could also perform Simumba’s
past work. Id. Simumba’s counsel then asked the VE whether there would be jobs available to
the same hypothetical person if that person also would be “off task due to psychological
symptoms twenty-five percent of the workdays.” R. 79. The VE replied that such claimant
could not perform any of Simumba’s past work “or any others on a full-time basis.” Id.

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4.

Findings of the ALJ

Following the five-step process outlined in 20 C.F.R. § 416.920, at step one, the ALJ
found that Simumba had not engaged in substantial gainful activity since April 21, 2005. R. 17.
At step two, the ALJ found that Simumba suffered from two severe impairments: bipolar
disorder and lumbago. Id. At step three, the ALJ found that Simumba did not have any
impairment, singly or in combination, that was one of the “listed” impairments in the Social
Security regulations. Id.
Before proceeding to step four, the ALJ determined that Simumba has the RFC “to
perform light work,” but that “she needs to avoid concentrated exposure to hazards such as
dangerous machinery.”

R. 19.

In this finding, the ALJ noted that Simumba “is able to

concentrate for two hours at a time before needing a break.” Id. Simumba disputes this finding,
arguing that the ALJ overlooked the evidence of her mental limitations, caused by bipolar
disorder, that further limit her RFC and prevents her from performing any job. D. 16 at 8, 15.
At step four, based on the RFC determination, the ALJ found that Simumba was able to
perform all of her past relevant work. R. 29. For this reason, at step five, the ALJ determined
that Simumba was not disabled. Id. Simumba disputes the ALJ’s conclusion regarding the
limitations of her RFC and the ALJ’s ultimate conclusion that Simumba was not disabled. D. 16
at 8.
C.

Simumba’s Challenges to the ALJ’s findings

Simumba contends that the ALJ’s determination that Simumba was not disabled because
she had the RFC to perform “light work” fails to incorporate her mental limitations due to
bipolar disorder. D. 16 at 8. Simumba first argues that the ALJ should have given controlling
weight to Simumba’s treating mental health provider, Friss. Id.; see 20 C.F.R. § 404.1527(c)(2).

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Second, Simumba argues that the ALJ failed to evaluate her credibility properly. D. 16 at 15.
For the reasons discussed below, the Court finds no reversible error and affirms the ALJ’s
decision.
1.

ALJ’s Evaluation of the Medical Opinions

Simumba argues that the ALJ erred when she afforded limited weight to the opinion of
her treating mental health clinician, Friss, because the ALJ was required to give controlling
weight to Simumba’s treating source. D. 16 at 8-10. Simumba also argues that the ALJ must
consider evidence from all other sources under 20 C.F.R. 404.1513(d), and that the ALJ failed to
meet her obligation to “adequately explain” the weight she assigned to Friss’s opinion. See
Taylor v. Astrue, 899 F. Supp. 2d 83, 88-89 (D. Mass. 2012). D. 16 at 12. By affording Friss’s
opinion “limited weight,” Simumba contends that the ALJ overlooked mental limitations that
should have been included in Simumba’s RFC. D. 16 at 8-15.
An ALJ should give controlling weight to a treating physician’s opinion if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.”

20 C.F.R. §

404.1527(c)(2). If the ALJ determines that the treating physician’s opinion is not entitled to
controlling weight, the ALJ must determine the amount of weight the opinion is entitled to based
on the following six factors:

(1) “[l]ength of treatment relationship and the frequency of

examination,” (2) “[n]ature and extent of the treatment relationship,” (3) “[s]upportability” of the
medical opinion, (4) consistency of the opinion “with the record as a whole,” (5)
“[s]pecialization” of the treating source, and (6) “other factors . . . that tend to support or
contradict the opinion.” Id. § 404.1527(c). In addition, “the Commissioner must always give
good reasons in his notice of decision for the weight he gives a claimant’s treating source’s

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opinion. Giving “good reasons” means providing specific reasons that will allow subsequent
reviewers to know the weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.” Haggblad v. Astrue, 11-CV-028-JL, 2011 WL 6056889 (D.N.H.
Nov. 17, 2011) (citations, internal quotation marks and alterations omitted), report and
recommendation adopted sub nom. Haggblad v. U.S. Soc. Sec. Admin., Com'r, 11-CV-28-JL,
2011 WL 6057750 (D.N.H. Dec. 6, 2011) The ALJ’s reasons must also be supportable and
reasonable. Id. at *7-8. The ALJ is not required to discuss each factor under 20 C.F.R. §
404.1527(c) in her decision, so long as she gives good reasons, supported by the evidence in the
record, for the weight she ultimately gives to the treating physician’s opinion. Crocker v. Astrue,
No. 07-220-P-S, 2008 WL 2775980, at *9 (D. Me. June 30, 2008); see also Delafontaine v.
Astrue, No. 1:10-cv-027-JL, 2011 WL 53084, at *14 (D.N.H. Jan. 7, 2011) (stating that “an ALJ
is not required to methodically apply [the factors] so long as the ALJ’s decision makes it clear
that these factors were properly considered”); Braley v. Barnhart, No. 04-176-B-W, 2005 WL
1353371, at *4 (D. Me. June 7, 2005) (noting that “the plaintiff does not cite, nor can [the court]
find, any First Circuit authority for the proposition that an [ALJ] must slavishly discuss each of
these factors for his consideration of a treating-source opinion to pass muster”). The factors
provide a balancing test, not a checklist. See Conte v. McMahon, 472 F. Supp. 2d 39, 48-49 (D.
Mass. 2007) (calling the factors “the quintessential balancing test” and stating ALJ has the
discretion to stress certain factors as long as supported by substantial evidence).
Only “acceptable medical sources” can be considered treating sources, whose medical
opinions may be entitled to controlling weight under 20 CFR § 404.1527(c) and § 416.927(c). A
“treating source” is defined in the regulations as the claimant’s “physician, psychologist, or other
acceptable medical source who provides [the claimant], or has provided [the claimant], with

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medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with
you.”

20 C.F.R. § 416.902.

The term “acceptable medical sources” refers to a specific

regulatory category of sources, limited to licensed physicians, licensed or certified psychologists,
licensed optometrists, licensed podiatrists, and qualified speech-language pathologists.

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C.F.R. § 404.1513(a). The ALJ may use evidence from “other sources” to determine the severity
of the impairment and how it affects the claimant’s ability to work.” 20 C.F.R. § 404.1513(d).
These “other sources” include non-physician medical sources, such as nurses, physician’s
assistants and therapists, as well as education personnel, private and public social workers and
other primary caregivers. Id. The ALJ is not required to apply the factors listed in 20 C.F.R. §
416.927(c)(1)-(6) to “other sources,” nor to list “good reasons” for the weight afforded to these
other sources; however, the ALJ “must adequately explain [her] treatment of the opinion so that
a reviewer can determine if the decision is supported by substantial evidence.” Taylor, 899 F.
Supp. 2d at 88-89.
The ALJ treated Friss’s assessment as an “other source.” See R. 28 (noting that neither
Friss nor Hughes were “acceptable medical sources”). Because there is no evidence in the record
to support that Friss is a licensed physician or psychologist, and is only referred to by Simumba
as a “mental health provider,” D. 16 at 8, the Court cannot state that the ALJ erred in this
categorization.4 While Simumba argues that Friss should be afforded controlling weight as a
treating source, Friss does not have a professional designation that can support her authority as a
treating source. See Cruz v. Astrue, No. 11-40054-FDS, 2012 WL 220535, at *7 (D. Mass. Jan.

4

Cheryl Friss’s title and designation is not formally stated in the record. Plaintiff refers
to Friss as “M.Ed.” throughout her brief, Pl. Mem., D. 16 at 8, and refers to her an “other
source.” Id. at 11-12. The Psychiatric Disorder Questionnaire signature line has an asterisk
stating that if the evaluator is not a M.D. or licensed psychologist, then a co-signator with one of
these designations is needed. Id. Alan Stone, Ph.D., co-signed Friss’s evaluation. Id.
16

24, 2012) (stating that “[a] clinician is not an acceptable medical source and is treated as another
source of evidence”); Randall v. Astrue, No. 09-cv-11273-NG, 2011 WL 2649967, at *1 (D.
Mass. July 5, 2011) (noting licensed mental health counselor not acceptable medical source
because not a licensed or certified psychologist); Cinq Mars v. Barnhart, No. 05-30137-MAP,
2006 WL 961913, at *6-7 (D. Mass. Apr. 6, 2006) (recognizing that therapists are not acceptable
medical sources under regulations). Here, given that there is no evidence to the contrary, the
ALJ correctly applied the regulations in categorizing Friss, presumably a therapist or counselor
based upon her education, as an “other source.” Therefore, the ALJ was not bound by the factors
listed in § 416.927(c)(1)-(6) during her evaluation of the opinion. Simumba correctly notes that
the ALJ could have assigned more weight to Friss’s medical opinion, as courts permit an opinion
from an “other source” to be given equal or greater weight than an “acceptable medical source,”
depending on the facts of the case. Taylor, 899 F. Supp. 2d at 88. However, it also was entirely
within the ALJ’s discretion to conclude that the opinion should not be afforded great weight as
long as she explained the reasons for her decision. See id.; see 20 C.F.R § 404.1527(c)(2).
The SSA provides some guidance on how judges may evaluate a medical opinion from an
“other source:”
For opinions from sources such as teachers, counselors, and social workers who
are not medical sources, and other non-medical professionals, it would be
appropriate to consider such factors as the nature and extent of the relationship
between the source and the individual, the source's qualifications, the source's
area of specialty or expertise, the degree to which the source presents relevant
evidence to support his or her opinion, whether the opinion is consistent with
other evidence, and any other factors that tend to support or refute the opinion.
Social Security Admin., SSR 06-03p, Titles II and XVI: Considering Opinions and Other
Evidence from Sources Who Are Not “Acceptable Medical Sources” in Disability Claims;

17

Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies, 71
Fed. Reg. 45593-03, 45596 (Aug. 9, 2006).
Although Simumba argues that the ALJ did not provide sufficient reasoning for assigning
“limited weight” to Friss’s opinion, the ALJ enumerated a number of different reasons
supporting her decision, many of which mirror the factors recommended by the SSA. First, she
addressed the nature and extent of Friss’s counseling, concluding that Friss treated Simumba for
only six months, a relatively short period considering that Simumba claims that she has been
disabled since 2005 and did not seek counseling treatment for mental illness prior to October
2008. R. 28. Second, the ALJ properly classified Friss as an “other source” after determining
that her professional qualifications were those of a counselor or therapist, rather than a licensed
physician or psychologist. R. 28; see 20 C.F.R. § 404.1513(d). Because the ALJ could not deem
Friss a treating source under its definition in 20 C.F.R. § 416.902, the ALJ had no obligation to
afford Friss’s opinion controlling weight. See 20 CFR § 404.1527(c)-(d). Third, the ALJ
evaluated the relevant evidence presented by Friss, but determined that the two Psychiatric
Disorder Questionnaires lacked credibility because, as discussed in more detail below, Friss
likely filled out the substantive portions of both questionnaires. R. 28. Fourth, given that the
questionnaires’ first two pages were identical, the ALJ identified that the difference in the
prognosis represented clinical inconsistency. Id. Fifth, there was an absence of any behavioral
examples or objective testing of Simumba’s mental limitations in Friss’s documents, suggesting
that Friss solely relied on Simumba’s self-reported symptoms to make her diagnosis. Id. Sixth,
the ALJ evaluated the extent to which Friss’s medical opinion compared to the medical evidence
as a whole, concluding that Friss’s report was somewhat inconsistent with the balance of the
evidence in the record. Id. The ALJ also noted that Simumba’s history of moving between

18

residences and states directly contradicts Friss’s statement that Simumba has “difficulty with
changes in schedule and/or task.” Id. Friss also stated that Simumba ceased working due to
physical conditions, but there is no evidence Friss independently verified Simumba’s medical
history. Id. at 28-29.
Although Simumba argues that Friss’s report is at least consistent with Dr. Jagelman’s
report, any inconsistency between a medical opinion and the rest of the record is a sufficient
reason for a judge to accord limited weight to the credibility of that medical opinion. See
Abubakar v. Astrue, No. 1:11-cv-10456-DJC, 2012 WL 957623, at *10 (D. Mass. Mar. 21,
2012) (noting that ALJ has discretion to assign weight to medical opinions based on consistency
with overall record). Here, the ALJ met the required explanation standard by providing multiple
reasons for her decision to give this opinion limited weight, all of which have substantial support
in the record. This Court determines that the ALJ provided an adequate explanation and finds no
error in her decision to assign Friss’s medical opinion “limited weight.”
2.

Credibility of Claimant

Simumba argues that the ALJ failed to evaluate her credibility properly. D. 16 at 15-17.
“Credibility determinations, while the sole responsibility of the ALJ, ‘must be supported by
substantial evidence[,] and the ALJ must make specific findings as to the relevant evidence he
considered in determining to disbelieve the [claimant].’” Carr v. Astrue, No. 09-cv-10502–NG,
2010 WL 3895189, at *6 (D. Mass. Sept. 30, 2010) (quoting Da Rosa v. Sec’y of Health &
Human Servs., 803 F.2d 24, 26 (1st Cir. 1986)). Additionally, “the credibility determination by
the ALJ, who observed the claimant, evaluated [her] demeanor, and considered how that
testimony fit in with the rest of the evidence, is entitled to deference, especially when supported
by specific findings.” Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir.

19

1987); Becker v. Sec’y of Health & Human Servs., 895 F.2d 34, 36 (1st Cir. 1990) (giving
weight to the ALJ’s credibility determinations because the ALJ has the opportunity to view the
witnesses and possesses special expertise and knowledge of subject matter).
The ALJ correctly recognized the process for evaluating the credibility of a claimant's
statements about her symptoms. R. 19 see also 20 C.F.R. § 404.1527. Accordingly, to the extent
that the ALJ’s was required to evaluate the intensity and persistent and limiting effects of
claimant’s symptoms to determine the extent to which they limited her functions, the ALJ
properly recognized that “whenever statements about the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not substantiated by objective medical evidence,
the [ALJ] must make a finding on the credibility of the statements based on a consideration of
the entire case record.” R. 19.
Simumba argues that the ALJ erred in making the credibility determination of her
symptoms by subjectively evaluating the medical evidence to find “what she perceived to be
inconsistencies” and overlooking the medical opinions that support Simumba’s mental health
limitations. D. 16 at 15. To support her claim, Simumba points out that there is consistency
between Friss’s medical opinion, her testimony and the VE’s testimony. Id. at 15-16. According
to Simumba, Friss’s records from Simumba’s therapy sessions document her difficulty
concentrating, focusing for extended periods of time, completing complicated tasks and dealing
with changes in schedule. R. 548-49. Simumba contends her testimony about these issues, R.
63-64, sufficiently corroborates Friss’s opinion. D. 16 at 15-16. Additionally, she asserts that
the VE’s testimony that Simumba would not be employable if she were “off task” for twentyfive percent of the workday further demonstrates that these mental limitations prevent Simumba
from working. Id. at 16; R. 79.

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Contrary to Simumba’s contention, however, the ALJ’s decision reflects that she engaged
in such analysis and made such findings here. The ALJ found Simumba “not entirely credible,”
concluding that she “failed to establish a correlation between her allegations and the objective
medical evidence in the record.” R. 21. The ALJ explained that her decision relied upon a
balance of “objective physical evidence (testing, examination, history of treatment) combined
with the credible subjective complaints of the claimant and the expert assessment of medical care
consultants/examiners” to determine the issue of disability. R. 19.
The ALJ’s explanation of her final decision reveals that she did not ignore Simumba’s
testimony or credible evidence regarding her mental limitations, but did not find all of
Simumba’s testimony credible in light of other evidence in the record and gave lesser weight to
medical opinions not supported by objective evidence. Instead, after careful review of the
record, the ALJ noted that Simumba’s case suffered from two issues: “a lack of objective
support” (i.e., “testing, examinations, history of treatment”) and “questions to credibility” (i.e.,
noting that she “cannot accept the claimant at their word regarding their pain and limitations
when presented with evidence that questions their credibility”).

R. 19; see 42 U.S.C.

423(d)(5)(A) (“[a]n individual’s statement as to pain or other symptoms shall not alone be
conclusive evidence of disability . . .there must be medical signs and findings, established by
medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a
medical impairment that results from anatomical, physiological, or psychological abnormalities
which could reasonably be expected to produce the pain or other symptoms alleged and which,
when considered with all evidence required to be furnished . . . would lead to a conclusion that
the individual is under a disability”).

21

As to the claimant’s credibility, the ALJ noted that three physicians had questions
Simumba’s credibility regarding her reports of limitations and symptoms. R. 19, 21, 24-26, 28.
These doctors included Dr. Ghostly (in regard to an examination for disability benefits), R. 19,
21, Dr. Jagelman (who had examined Simumba in 2009 and concluded that “her story and
reported history seemed almost implausible” and presumed that there would be medical reports
to corroborate her claims), R. 20, and Dr. McGan (who did not examine Simumba, but upon
review of her medical records “noted several inconsistencies between her allegations and her
medical records including, but not limited to her misrepresentation that she has had breast
cancer). R. 20; see also R. 21-28 (observing that multiple physicians stated in their files that they
do not have the medical records to verify Simumba’s reported medical history).
As to objective medical evidence, the ALJ observed that a number of the medical
providers, including Friss upon whose opinion Simumba heavily relies, who submitted evidence
failed to conduct objective testing to evaluate Simumba’s self-reported symptoms and medical
history. R 25-26, 28. The ALJ assigned greater weight to the opinions of providers who
conducted objective testing of Simumba because those tests supported an independent
conclusion.

The ALJ assigned limited weight to each of the opinions that did not rely upon

objective testing. Id.; see Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 4
(1st Cir. 1987) (supporting ALJ assignment of limited weight to medical evaluations not based
on objective testing); Robertson v. Astrue, No. 11-30204-PBS, 2012 WL 4343650, at *7 (D.
Mass. Sept. 20, 2012) (stating ALJ may “attribute lesser weight” to evaluations based on
patient’s reported symptoms, not testing); Machado v. Astrue, No. 09-045A, 2009 WL 3837226,
at *12 (D.R.I. Nov. 13, 2009) (finding same).

22

Accordingly, the ALJ gave “little weight” to Dr. Patel’s assessment of Simumba because
he “did not identify any significant physical or psychiatric limitations,” indicated that she would
need to be evaluated by a psychiatrist for her mental symptoms and his opinion was “so sparsely
documented.” R. 23-24. The ALJ also gave “little weight” to Dr. Jagelman’s assessment
because “although she appeared to question the claimant’s statements and reported history, she
did not attempt to validate or test the claimant’s statements,” “she did not review any other
medical records with which to compare and contrast the claimant’s reported symptoms and
limitations,” “she did not conduct any objective psychological testing to aid in her evaluation of
the of the claimant’s symptoms,” and “she appears to have based her opinions and conclusions to
a large degree on the claimant’s statements.” R. 25. The ALJ also gave “limited weight” to the
psychological assessments signed by Hughes and Friss (co-signed by Stone), respectively. R.
28. As previously discussed, given the similiarity between the handwriting and contents on the
two forms, the ALJ reasonably concluded that the forms contained information primarily drawn
from Friss. Although concluding that neither was an “acceptable medical source,” the ALJ still
considered the assessments but gave them little weight because, among other reasons, there was
an “inconsistency” in the prognosis given despite the same information, “none of the answers
contain specific examples of behaviors observed by the signators,” “no psychological testing
was conducted by this institution or therapist to further evaluate the claimant’s symptoms,” they
had “only been seeing the claimant since relatively recently,” and the conclusion that changes in
schedule or task could cause the claimant anxiety was “contradicted by the fact that the claimant
has changed residences many times which is evidence of her ability to adapt to changes, rather
significant changes, because they relate to her home.” D. 28 (noting claimant’s testimony about
moving back and forth from Ohio, Alabama and Massachusetts); see D. 42, 49, 57.

23

By contrast, the ALJ assigned “great weight” to Dr. Lin’s opinion because he conducted
objective testing during his evaluation. Specifically, his opinion reflected that he “documented
his physical finds contemporaneously with his examination,” “appeared to have reviewed other
records with which to compare and contrast the claimant’s reported symptoms and limitations”
and “appeared to have objectively assessed her complaints and not placed an undue amount of
weight on her self-reporting of symptoms.” D. 26. This is not a case in which, as Simumba
contends, D. 16 at 17, the ALJ has ignored medical evidence and has substituted her opinion.
Instead, here, there was little to no objective medical evidence supporting the claimant’s position
that she suffered from disabling conditions.
Based upon this record and careful analysis, there was no error in the ALJ concluding
that “[i]n reviewing all of the evidence and opinions in detail above, as well as the claimant’s
description of her symptoms, I find [Simumba] has little to prevent her from working.” R. 29.
Simumba’s testimony and Friss’s assessments both indicate that the medication for her bipolar
disorder has helped Simumba improve her functionality. Id. As for her physical challenges with
high blood pressure, migraines, cellulitis and back pain, the ALJ found that Simumba’s
testimony did not demonstrate any physical incapacity. Id. She testified that her blood pressure
and migraine medications both improve her functionality, antibiotics cured her cellulitis and her
x-rays of her back were normal. Id. While Simumba argues the ALJ improperly discredited her
veracity, the ALJ’s decision reflects careful consideration of the record including Simumba’s
testimony and statements and that the ALJ’s conclusions as to her credibility and her ultimately
finding of no disability were supported by substantial evidence.
Concluding that the ALJ applied the right legal standard in reaching her decision and that
the decision was supported by substantial evidence, the Court AFFIRMS the ALJ’s decision.

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V.

Conclusion
For the foregoing reasons, the Commissioner’s motion for an order affirming his

decision, D. 19, is GRANTED and Simumba’s motion for judgment on the pleadings, D. 15, is
DENIED.
So Ordered.
/s/ Denise J. Casper
United States District Judge

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