Wojczyk v. Astrue

Filing 27

Judge Mark G. Mastroianni: MEMORANDUM AND ORDER entered. For these reasons, the Court DENIES the Pltf's 17 Motion for Judgment on the Pleadings and ALLOWS the Deft's 20 Motion for Order Affirming Decision of Commissioner. The Clerk shall enter judgment for the Deft., and this case may now be closed. (Finn, Mary) (Main Document 27 replaced on 10/14/2014 with the correct captioned Memorandum and Order) (Finn, Mary). Modified on 10/14/2014 (Finn, Mary).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JANET MARIE WOJCZYK,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Civil Action No. 12-30185-MGM

MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR JUDGMENT
ON THE PLEADINGS AND DEFENDNAT’S MOTION FOR ORDER AFFIRMING
COMMISSIONER
(Dkt. Nos. 17 and 20)
October 10, 2014
MASTROIANNI, U.S.D.J.
This is an action for judicial review of a final decision by the Commissioner of the Social
Security Administration (“Commissioner”) 1, denying Plaintiff’s applications for disability insurance
benefits and supplemental security income (“SSI”) benefits. See 42 U.S.C. § 405(g); 42 U.S.C. §
1383(c)(3) (referencing 42 U.S.C. § 405(g)). The parties have filed cross-motions for judgment on
the pleadings. At issue is whether the Administrative Law Judge (“ALJ”) erred by failing to adopt the
opinions of a treating source when reaching conclusions regarding the scope of Plaintiff’s mental
residual functional capacity (“RFC”).
As discussed below, the ALJ properly exercised her discretion in determining what weight to
give the opinion of staff at the agency where Plaintiff received bi-weekly therapy. The court will,

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The final decision was issued during the tenure of Michael J. Astrue. Carolyn W. Colvin is currently the Acting
Commissioner of Social Security.

therefore, deny Plaintiff’s Motion for Judgment on the Pleadings, (Dkt. No. 17), and allow
Defendant’s Motion for Order Affirming the Decision of the Commissioner, (Dkt. No. 20).

I.

DISCUSSION

The parties are familiar with the factual and procedural history of this case, so the court
begins its discussion with the standard of review.
A. Standard of Review
The role of a district court reviewing an ALJ’s decision is limited to determining whether the
conclusion was supported by substantial evidence and based on the correct legal standard. See
Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). “The findings of the Commissioner of Social
Security [and his designee, the ALJ] as to any fact, if supported by substantial evidence, shall be
conclusive . . . .” 42 U.S.C. 405(g). Substantial evidence means that “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 and Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). The
Commissioner can only find a claimant is impaired if there is evidence before the Commissioner
from an acceptable medical source establishing the existence of a medically determinable
impairment. See 20 C.F.R. §§ 404.1508, 404.1513. Additionally, it is the Commissioner’s
responsibility to weigh conflicting evidence and decide issues of credibility. Rodriguez, 647 F.2d at
222.
B. Disability Standard and the ALJ’s Decision
With respect to Plaintiff’s claim for disability insurance benefits, Plaintiff must establish
disability on or before the last date on which she was insured, March 31, 2013. Entitlement to SSI
requires a showing of both disability and financial need. See 42 U.S.C. § 1381a. Here, Plaintiff’s
financial need is not challenged.
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The Social Security Act (the “Act”) defines disability, in 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). An individual
is considered disabled under the Act,
only if his physical or mental impairment or impairments are of such severity
that he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he lives, or whether
a specific job vacancy exists for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 1382c(a)(3)(B). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49 (1987).
In determining disability, the Commissioner follows the five-step protocol described by the
First Circuit as follows:
1) if the applicant is engaged in substantial gainful work activity, the
application is denied; 2) if the applicant does not have, or has not had within
the relevant time period, a severe impairment or combination of
impairments, the application is denied; 3) if the impairment meets the
conditions for one of the “listed” impairments in the Social Security
regulations, then the application is granted; 4) if the applicant’s “residual
functional capacity” is such that he or she can still perform past relevant
work, then the application is denied; 5) if the applicant, given his or her
residual functional capacity, education, work experience, and age, is unable to
do other work, the application is granted.
Seavey v. Barnhart, 276 F.3d at 5; see also 20 C.F.R. § 416.920(a)(4).
In the instant case, the ALJ found as follows with respect to these steps. First, Plaintiff has
not engaged in substantial gainful activity since July 22, 2009. Moving to step two, the ALJ found
that Plaintiff had four severe impairments: back pain, knee pain, obesity, and depression. At the
third step the ALJ determined that Plaintiff’s impairments do not, singly or in combination, meet or
medically equal the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Specifically, with respect to Plaintiff’s mental impairments, the ALJ determined that
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Plaintiff had only moderate difficulties in activities of daily living; social functioning; and
concentration, persistence, or pace.
Continuing to step four, the ALJ found that Plaintiff’s RFC allows her to perform light
work, as defined in 20 C.F.R. 404.1567(b) and 416.967(b), provided that the work is further limited
to occasional climbing, balancing, stooping, kneeling, crouching, and crawling; occasional interaction
with the public; and requires her to learn only simple, routine directions. She concluded that even
with these limitations Plaintiff was capable of performing her past relevant work of housekeeping.
As a result, the ALJ determined that Plaintiff was not disabled.
Plaintiff makes two arguments challenging the ALJ’s decision, but they both address the
same issue — whether, when crafting the Plaintiff’s RFC, the ALJ failed to give sufficient weight to
the opinion of Teri Tencer-Cutler, LMHC (“Tencer-Cutler”) and Sharlene Hernandez, MS, APRN,
BC, PC (“Hernandez”). Tencer-Cutler and Hernandez were treating mental health providers at
River Valley Counseling Center, where Plaintiff received counseling. (A.R. at 389-92.) They both
signed a Mental Impairment Questionnaire for Plaintiff after she had treated at River Valley
Counseling Center for approximately one year. (Tencer-Cutler/Hernandez Opinion). (A.R. at 389.)
They opined that Plaintiff had extreme limitations with respect to social functioning and that her
impairments would likely cause her to be absent from work at least four days per month. (A.R. at
391.) In response, the Commissioner argues that the ALJ appropriately exercised her discretion
when she decided how much weight to give the Tencer-Cutler/Hernandez Opinion.
First, Plaintiff argues that the ALJ erred by not assigning controlling weight to the TencerCutler/Hernandez opinion. She asserts that the ALJ should have given greater weight to the TencerCutler/Hernandez opinion than she did because it came from a treating source. The Commissioner
counters that it would have been error for the ALJ to grant the Tencer-Cutler/Hernandez Opinion
controlling weight because neither Tencer-Cutler nor Hernandez are “acceptable medical sources”
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within the meaning of the Social Security regulations. See 20 C.F.R. §§ 404.1513, 404.1527(c)(2),
416.902, 416.913(a), 416.927(c)(2); Social Security Ruling (“SSR”) 06-03p.
Pursuant to Social Security regulations, in order for the Commissioner to determine that a
claimant has a medically determinable impairment, the claimant must provide evidence from an
“acceptable medical source” that establishes a medically determinable impairment. See id. In the case
of mental and physical limitations (not involving ankles, feet, eyes, or speech), “acceptable medical
sources” are only licensed physicians and licensed or certified psychologists. 20 C.F.R. §§
404.1513(a), 416.913(a). When an “acceptable medical source” is also a treating source, the
Commissioner must give the source’s opinion controlling weight, provided the opinion is well
supported and not inconsistent with other substantive evidence. See 20 C.F.R. §§ 404.1527, 416.902,
416.927(c)(2). As neither Tencer-Cutler nor Hernandez is a licensed physician or a licensed or
certified psychologist, the controlling weight requirement is not applicable to their opinion.
Plaintiff next argues that the ALJ improperly based her decision not to give controlling
weight to the Tencer-Cutler/Hernandez Opinion on her belief that the opinion had been prepared
in an effort to assist Plaintiff with her disability claim. In making this argument, Plaintiff ignores the
fact that neither Tencer-Cutler nor Hernandez are “acceptable medical sources” and so the
requirements applicable to weighing the opinions of doctors or licensed or certified psychologists
are not applicable to their opinion. C.f. Gonzalez Perez v. Sec’y of Health and Human Servs., 812
F.2d 747, 749 (1st Cir. 1987); Arroyo v. Barnhart, 295 F. Supp. 2d 214 (D. Mass 2003). Additionally,
the ALJ’s observation that treating sources may reach unsupported conclusions out of a desire to
assist their patients to obtain benefits was not directed at the Tencer-Cutler/Hernandez Opinion.
Read in the full context of her decision, the ALJ’s comment was clearly offered to explain why a
treating source, Dr. Leon Hutt, may have stated reservations regarding Plaintiff’s ability to tolerate

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the psychological stressors associated with employment, despite an absence from his findings of
support for such a conclusion. (A.R. at 23.)
Having carefully considered the ALJ’s opinion and Plaintiff’s concerns about the weight
given to the Tencer-Cutler/Hernandez Opinion, the court finds that the ALJ was not obligated to
give any greater weight to the opinion than she did.
II.

CONCLUSION

For these reasons, the court DENIES Plaintiff’s Motion for Judgment on the Pleadings,
(Dkt. No. 17), and ALLOWS Defendant’s Motion for Order Affirming Decision of the
Commissioner, (Dkt. No. 20). The clerk shall enter judgment for Defendant, and this case may now
be closed.
It is So Ordered.

_/s/ Mark G. Mastroianni________
MARK G. MASTROIANNI
United States District Judge

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