Hebert v. Colvin
Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the reasons stated, the Plaintiffs Motion for Judgment on the Pleadings - (Dkt. No. 13) IS DENIED, and the Commissioners Motion for an Order Affirming the Decision of the Commissioner - (Dkt. No. 23) is GRANTED. (Finn, Mary)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARQUES ISIAHA HEBERT,
CAROLYN W. COLVIN,
Acting Commissioner of Social
Case No. 3:15-cv-30198-KAR
MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR JUDGMENT
ON THE PLEADINGS AND DEFENDANT’S MOTION TO AFFIRM THE DECISION OF
(Dkt. Nos. 13 & 23)
March 17, 2017
On November 10, 2015, plaintiff Marques Isiaha Hebert (“Plaintiff”) filed a complaint
pursuant to 42 U.S.C. § 405(g) against the Acting Commissioner of the Social Security
Administration (“Commissioner”), appealing the denial of his claims for Supplemental Security
Income (“SSI”) and Social Security Disability Insurance (“SSDI”). Plaintiff asserts that the
Commissioner’s decision denying him such benefits – memorialized in an August 26, 2013
decision by an administrative law judge (“ALJ”) – is in error. Specifically, Plaintiff alleges that
the ALJ’s conclusion as to Plaintiff’s Residual Functional Capacity (“RFC”) is not supported by
substantial evidence and that the ALJ erred by not adopting a treating source’s opinion when
assessing the Plaintiff’s RFC. Plaintiff has moved for judgment on the pleadings requesting that
the Commissioner’s decision be reversed, or, in the alternative, remanded for further proceedings
(Dkt. No. 13). The Commissioner has moved for an order affirming the decision of the
Commissioner (Dkt. No. 23). The parties have consented to this court’s jurisdiction (Dkt. No.
16). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the following reasons, the court will deny
Plaintiff’s motion and allow the Commissioner’s motion.
On January 25, 2008, Plaintiff filed applications for SSI and SSDI, alleging an October 1,
2005 onset of disability (Administrative Record (“A.R.”) at 7, 533-540). Plaintiff’s applications
were denied initially and on reconsideration (id. at 61-64). Plaintiff requested a hearing before
an ALJ, and one was held on January 22, 2010 (id. at 77-83, 436-72). Following the hearing, the
ALJ issued a decision on May 28, 2010, finding that Plaintiff was not disabled and denying
Plaintiff’s claims (id. at 4-19). The Decision Review Board selected the decision for review, but
did not complete its review within the allotted time, and the ALJ’s decision became the final
decision of the Commissioner (id. at 1-3). Plaintiff then sought judicial review, and, on June 3,
2011, another session of this court issued an order reversing the ALJ’s decision, remanding the
case for further administrative proceedings, and entering judgment for Plaintiff (id. at 473-477).
Following a new hearing in front of the same ALJ on June 21, 2013, the ALJ issued a new
decision on August 26, 2013, again finding that Plaintiff was not disabled and denying Plaintiff’s
claims (id. at 390-408, 409-435). The Appeals Council denied review on September 10, 2015,
and the ALJ’s decision became the final decision of the Commissioner (id. at 379-383). This
A. Standard for Entitlement to Social Security Disability Insurance
In order to qualify for SSI and SSDI, a claimant must demonstrate that he is disabled
within the meaning of the Social Security Act. 1 A claimant is disabled for purposes of SSI and
SSDI if he “is unable 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); 42 U.S.C. § 423(d)(1)(A). A claimant is unable to engage in any
substantial gainful activity when 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); 42 U.S.C. § 423(d)(2)(A).
The Commissioner evaluates a claimant’s impairment under a five-step sequential
evaluation process set forth in the regulations promulgated under each statute. See 20 C.F.R. §
416.920; 20 C.F.R. § 404.1520. The hearing officer must determine: (1) whether the claimant is
engaged in substantial gainful activity; (2) whether the claimant suffers from a severe
impairment; (3) whether the impairment meets or equals a listed impairment contained in
Appendix 1 to the regulations; (4) whether the impairment prevents the claimant from
performing previous relevant work; and (5) whether the impairment prevents the claimant from
doing any work considering the claimant’s age, education, and work experience. See id. See
For SSDI, the claimant also must demonstrate that the disability commenced prior to the
expiration of his insured status for disability insurance benefits. See 42 U.S.C. § 423(a)(1).
also Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982) (describing
the five-step process). If the hearing officer determines at any step of the evaluation that the
claimant is or is not disabled, the analysis does not continue to the next step. 20 C.F.R. §
416.920; 20 C.F.R. § 404.1520.
Before proceeding to steps four and five, the Commissioner must make an assessment of
the claimant’s “residual functional capacity” (“RFC”), which the Commissioner uses at step four
to determine whether the claimant can do past relevant work and at step five to determine if the
claimant can adjust to other work. See id. “RFC is what an individual can still do despite his or
her limitations. RFC is an administrative assessment of the extent to which an individual's
medically determinable impairment(s), including any related symptoms, such as pain, may cause
physical or mental limitations or restrictions that may affect his or her capacity to do workrelated physical and mental activities.” Social Security Ruling (“SSR”) 96-8p, 1996 WL
374184, at *2 (July 2, 1996). The RFC assessment addresses both the remaining exertional and
nonexertional capacities of the claimant. Id. at *5.
Exertional capacity addresses an individual’s limitations and
restrictions of physical strength and defines the individual’s
remaining abilities to perform each of seven strength demands:
Sitting, standing, walking, lifting, carrying, pushing, and pulling.
Nonexertional capacity considers all work-related limitations and
restrictions that do not depend on an individual’s physical strength,
i.e. all physical limitations and restrictions that are not reflected in
the seven strength demands, and mental limitations and
restrictions. It assesses an individual’s abilities to perform
physical activities such as postural (e.g., stooping, climbing),
manipulative (e.g., reaching, handling), visual (seeing),
communicative (hearing, speaking), and mental (e.g.,
understanding and remembering instructions and responding
appropriately to supervision). In addition to these activities, it also
considers the ability to tolerate various environmental factors (e.g.,
tolerance of temperature extremes).
Id. at *5-6.
The claimant has the burden of proof through step four of the analysis, Goodermote, 690
F.2d at 7, including the burden to demonstrate RFC. Flaherty v. Astrue, 2013 WL 4784419, at
*9 (D. Mass. Sept. 5, 2013) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). At
step five, the Commissioner has the burden of showing the existence of other jobs in the national
economy that the claimant can nonetheless perform. Goodermote, 690 F.2d at 7.
B. Standard of Review
The District Court may enter a judgment affirming, modifying, or reversing the final
decision of the Commissioner, with or without remanding for rehearing. See 42 U.S.C. §
1383(c)(3); 42 U.S.C. § 405(g). Judicial review “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). The court reviews questions of law de
novo, but must defer to the ALJ’s findings of fact if they are supported by substantial evidence.
Id. (citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.1999)). Substantial evidence exists “‘if a
reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to
support [the] conclusion.’” Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769
(1st Cir. 1991) (quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st
Cir. 1981)). In applying the substantial evidence standard, the court must be mindful that it is the
province of the ALJ, and not the courts, to determine issues of credibility, resolve conflicts in the
evidence, and draw conclusions from such evidence. Id. So long as the substantial evidence
standard is met, the ALJ’s factual findings are conclusive even if the record “arguably could
support a different conclusion.” Id. at 770. That said, the Commissioner may not ignore
evidence, misapply the law, or judge matters entrusted to experts. Nguyen, 172 F.3d at 35.
A. The Evidence
1. Plaintiff’s Application
Plaintiff was 20 years old as of his alleged onset date, and he claimed in his applications
that he was disabled as a result of having a “[t]racheotomy—airway not big enough to sustain
life” (A.R. at 153). At the two hearings on his application, Plaintiff claimed disability due to his
tracheotomy, as well as asthma, learning disabilities, and left eye vision impairment (id. at 40935; 436-72).
2. Medical Records
Plaintiff has had subglottic stenosis, a narrowing of the lower portion of his larynx, since
birth and had a tracheotomy for the first twenty years of his life (id. at 203-09). In August 2005,
at age 20 and two months before his alleged onset of disability, Plaintiff underwent laryngeal
tracheal reconstruction with decannulation, or removal of the tracheotomy tube, at Boston
Children’s Hospital (“BCH”), due to improved respiratory status (id.). Plaintiff was seen preprocedure, on January 3, 2005, at Sumner Pediatrics and was found to have no
allergic/immunologic, eye, ear, nose, throat, cardiovascular, respiratory, gastrointestinal,
genitourinary, musculoskeletal, neurologic, hematologic, endocrine, or psychiatric problems (id.
at 598-600). Plaintiff presented for his first post-operative visit at BCH’s otolaryngology clinic
on December 14, 2005, at which time he was “doing well” and reportedly working at a job as a
mail handler “with no difficulty” (id.). He was, however, experiencing inspiratory and
expiratory stridor, or wheezing (id.). Approximately one week later, on December 20, 2005,
Plaintiff presented at the clinic with continued stridor and dyspnea, or shortness of breath, and he
was scheduled to undergo a diagnostic laryngoscopy at BCH two days later (id.). During the
procedure, it was determined that Plaintiff had regained scar tissue resulting in re-stenosis of the
subglottis, and Plaintiff underwent an emergency tracheotomy (id.). Afterward, Plaintiff was
admitted to the intensive care unit (id.). He was discharged on December 27, 2005, in stable and
improved condition and able to resume his prior activities (id.).
Plaintiff was next seen in the BCH otolaryngology clinic on January 25, 2006. Plaintiff
was “quite unhappy” about the tracheotomy having been reestablished (id.). Plaintiff reported
that he was plugging his tracheotomy tube and breathing around it for three hours while at work,
but that prolonged plugging left him feeling quite winded and resulted in headaches (id.). The
existing tracheotomy tube was replaced with a new one with some difficulty, but no respiratory
distress, and it was recommended that Plaintiff take more attentive care of the tube and stoma
site and continue to plug the tracheotomy tube for periods of time throughout the day (id.).
Plaintiff returned to the BCH otolaryngology clinic on April 12, 2006 (id.). He had a “good
voice,” was “doing really well,” and was able to block the tracheotomy tube and “breathe pretty
comfortably with it plugged” (id.). A few months later, on August 24, 2006, Plaintiff underwent
surgery at BCH to have the tracheotomy tube removed and exchanged for a new one (id.).
On October 9, 2007, Plaintiff met with Dr. Adam Wychowski, his primary care
physician, complaining of an altered sense of taste and smell for the past six months (id. at 22122). Dr. Wychowski ordered an MRI to rule out structural intracranial disruption or abnormality.
Plaintiff underwent an MRI of the brain with special attention to the olfactory nerves on October
20, 2007, and the results were found to be within normal limits and consistent with mild chronic
sinusitis (id. at 227-28).
Plaintiff met with Dr. Wychowski again on March 3, 2008, for a routine physical
examination (id. at 223-225). Plaintiff reported that his asthma was well controlled and that he
used his albuterol inhaler rarely (id.). Plaintiff denied any difficulty breathing or shortness of
breath (id.). Plaintiff reported that he was working on the floor at American Eagle, a clothing
store, and that he biked regularly and went to the gym occasionally (id.). Upon physical
examination, Dr. Wychowski did not identify any abnormalities (id.). Dr. Wychowski assessed
Plaintiff as having asthma, which he characterized as “[m]ild intermittent,” and “currently well
controlled,” as well as “stenosis of the larynx” (id).
On January 8, 2009, Dr. Wychowski completed a questionnaire about Plaintiff’s physical
residual functional capacity (id. at 374-78). Dr. Wychowski reported that he saw Plaintiff
between two and five times per year, but did not quantify the number of years (id.). Dr.
Wychowski identified Plaintiff’s diagnoses as including subglottic stenosis and asthma and
stated that his prognosis was fair and his tracheotomy likely permanent (id.). Dr. Wychowski
listed Plaintiff’s symptoms as “dyspnea/shortness of breath” and “fatigue” (id.). He denied that
Plaintiff suffered from pain or was a malingerer and identified tracheotomy maintenance and
asthma as the “primary issues” relating to Plaintiff’s “treatment and response … that may have
implications for working” (id.). Dr. Wychowski identified Plaintiff as suffering from anxiety,
but denied that any emotional factors contributed to the severity of Plaintiff’s symptoms and
functional limitations (id.). Dr. Wychowski offered the following opinions regarding Plaintiff’s
work-related functional limitations: that, during a typical workday, Plaintiff’s “experience of
pain or other symptoms” “occasionally” would be “severe enough to interfere with attention and
concentration needed to perform even simple work tasks;” that Plaintiff was capable of high
stress work; that Plaintiff could walk three city blocks without rest or severe pain; that Plaintiff
could sit for more than two hours at one time without needing to get up; that Plaintiff could stand
for at most two hours at one time before needing to sit down or walk around; that Plaintiff could
sit for at least six hours and stand for about two hours total in a work day; that Plaintiff needed a
job that permitted shifting positions at will from sitting, standing, or walking; that Plaintiff
needed to be able to take unscheduled work breaks once or twice each workday lasting between
ten and fifteen minutes each; that Plaintiff could frequently lift and carry up to twenty pounds,
but only occasionally lift and carry 50 pounds; that Plaintiff could frequently look down, turn his
head left or right, and look up, but only occasionally hold his head in a static position; that
Plaintiff could frequently twist, stoop (bend), crouch/squat, climb ladders, and climb stairs; and
that Plaintiff had no significant limitations with reaching, handling, or fingering (id.). Finally,
according to Dr. Wychowski, Plaintiff’s impairments were likely to produce “good days” and
“bad days,” and Plaintiff was likely to be absent from work about two days per month as a result
of his impairments or treatment (id.).
Plaintiff next met with Dr. Wychowski on May 4, 2009, for another routine physical
examination (id. at 354-56). Again, Plaintiff reported that his asthma was well controlled and
that he used his albuterol inhaler rarely (id.). Plaintiff denied difficulty breathing or shortness of
breath (id.). Plaintiff reported that he was working at Big Y as a porter 2 and that he continued to
bike regularly and go to the gym occasionally (id.). Upon physical examination, Dr. Wychowski
did not identify any abnormalities (id.). Dr. Wychowski again assessed Plaintiff as having
asthma, which he again characterized as “[m]ild intermittent,” and “currently well controlled,” as
well as “stenosis of the larynx” (id).
Plaintiff returned to the BCH otolaryngology clinic on July 9, 2009 (id. at 363-69).
Plaintiff was noted to be “doing well from a psychosocial standpoint,” reportedly working during
Plaintiff testified that his job as a “porter” involved janitorial-type cleaning and maintenance
duties (id. at 444, 453).
the daytime at a retail store and doing intermittent roofing work as well (id.). Plaintiff was
unable to cap his tracheotomy tube and breathe around it at any time, however, nor was he able
to utilize a speaking valve (id.). It was noted that Plaintiff had a history of sporadic changing of
his tracheotomy tube, and the tube currently in place appeared “somewhat dingy and …
consistent with a trach tube that appears to have been in place for quite some time” (id.). A plan
was made to schedule Plaintiff for direct laryngoscopy and bronchoscopy with a tracheotomy
tube change (id.).
Plaintiff next saw Dr. Wychowski on July 15, 2009 and August 6, 2009 regarding an
injury to his left hand (id. at 357-360). At the July visit, Plaintiff complained of “blood blisters”
on the palm of his left hand, which he reportedly developed four weeks earlier after working on a
roof and then riding his bike home (id.). Dr. Wychowski assessed Plaintiff as having a blister
and indicated that he would refer Plaintiff to a dermatology practice for probable excision and
pathology (id.). By the August visit, the lesion on plaintiff’s left hand had increased in size, and
Dr. Wychowski assessed Plaintiff as having a keloid (id.). Because Plaintiff’s dermatology
appointment was not scheduled until September and Dr. Wychowski felt that Plaintiff needed
removal and evaluation sooner, he indicated he would refer Plaintiff to a hand surgeon (id.). At
the time, Plaintiff reported that he “[r]ecently started working at Big Y,” and that he was able to
adapt his hand to his job without too much difficulty by keeping it covered with bandages and
On September 10, 2009, Plaintiff went to BCH for his direct laryngoscopy and
bronchoscopy and tracheotomy tube change (id. at 363-69).
On October 7, 2009, Plaintiff was seen in Dr. Wychowski’s office by a physician’s
assistant complaining of a runny nose and cough (id. at 561-64). Plaintiff was wheezing, and he
was administered a nebulizer treatment in-office, which improved his air flow with some residual
wheezing remaining (id.). Plaintiff was assessed as having asthma with acute exacerbation and
an upper-respiratory infection, and was prescribed prednisone for his wheezing, as well as
antibiotics due to the risk of infection as a result of his tracheotomy tube (id.). Plaintiff
presented for a follow-up appointment on October 21, 2009, at which time his symptoms had
fully resolved (id.).
On October 26, 2009, Plaintiff was seen at the BCH otolaryngology clinic for evaluation
of his voice (id. at 371-72). Plaintiff was noted to be breathing comfortably and quietly through
his tracheotomy tube (id.). His voice quality, however, was quite weak and breathy and “not
optimal” (id.). Work with a speech pathologist was recommended (id.).
3. Assessments and Evaluations
On April 25, 2008, Dr. Erik P. Purins, a state agency physician, reviewed Plaintiff’s
records and completed a physical RFC assessment (id. at 283-91). Dr. Purins offered the
following opinions regarding Plaintiff’s exertional limitations: that Plaintiff could lift and carry
up to 25 pounds frequently and up to 50 pounds occasionally; that Plaintiff could sit, stand,
and/or walk about six hours in an eight-hour workday; and that Plaintiff could engage in
unlimited pushing and/or pulling (id.). Dr. Purins identified Plaintiff’s history of underlying
asthma and chronic subglottic stenosis with tracheotomy as the basis for his conclusions as to
exertional limitations (id.). Regarding environmental limitations, Purins opined that Plaintiff
should avoid concentrated exposure to extreme cold, extreme heat, humidity, fumes, odors,
dusts, gases, and poor ventilation (id.). Purins attributed all of the environmental limitations to
Plaintiff’s asthma (id.). Purins concluded that Plaintiff had no postural limitations, no
manipulative limitations, no visual limitations, and no communicative limitations (id.). Dr.
Malin Weerante, another state agency physician, completed a physical RFC assessment on
September 25, 2008, and concurred with Dr. Purins’ opinion with the following modifications as
to environmental limitations: Plaintiff should avoid concentrated exposure to hazards, but did not
need to avoid exposure to extreme heat or humidity (id. at 325-32).
In May 2008, Plaintiff met with Robert E. Dean, Ph. D., for an intellectual evaluation (id.
at 292-304). Dr. Dean described Plaintiff as “cheerful, pleasant, polite, and engaging in his
disposition” (id.). Plaintiff’s speech was “fairly well articulated, although raspy because of his
tracheotomy” (id.). Plaintiff’s full scale IQ scores fell “at the upper limit of the Borderline
intellectual functioning category” on the Wechsler Adult Intelligence Scale – Third Edition, and
the screening measures of his basic academic skill development on the Wide Range
Achievement Test – Third Revision indicated that his “scholastic achievement remain[ed] at an
elementary level” (id.). During the interview, Plaintiff stated that he worked two days per month
at American Eagle, unpacking and putting out new shipments of clothes (id.). He identified
“many” previous jobs, including working at the post office, a book store, in food services, and as
a janitor in a school (id.). Plaintiff was not able to explain his difficulties in maintaining stable
employment other than his “trach, technically” (id.). The only health problems Plaintiff
identified were his tracheotomy, asthma, and eczema (id.). Plaintiff reported that he had been a
special education student and obtained a “certificate of completion” rather than a high school
diploma and participated in a work-study program until he was 22 years old (id.). Regarding his
activities, Plaintiff stated that he spent his time bicycling, downloading music and listening to it,
hanging around with his friends, drawing, and taking walks (id.). He also reported having a
driver’s license and driving regularly without problems (id.). Dr. Dean diagnosed Plaintiff with
learning disorders and borderline intellectual functioning (id.).
Following Dr. Dean’s evaluation, on June 10, 2008, Dr. Jon Perelman, a state agency
psychologist, completed an assessment of Plaintiff’s mental RFC (id. at 305-323). Dr. Perelman
concluded that Plaintiff was able to understand and remember simple instructions; complete
simple, routine tasks; sustain concentration for at least two hours periods; and relate in a socially
appropriate manner (id.). Dr. Peter Robbins, a second state agency psychologist who completed
an assessment of Plaintiff’s mental RFC, reached consistent conclusions (id. at 333-351).
4. Plaintiff’s Testimony
At the first hearing on January 22, 2010, Plaintiff testified that he had eight or nine jobs
starting with his school work program and going through the present (id. at 443). When the ALJ
inquired as to why Plaintiff did not stay in any of the jobs for long, Plaintiff responded, “[p]retty
much my trach, that was interference and a learning disability, too, and how people perceived me
during the jobs” (id. at 443-44). Plaintiff testified that he was fired from his most recent job at
Big Y as a result of having too many absences (id. at 445). Plaintiff explained that he had
missed work because he developed a cyst on his hand after helping his brother with a weekend
roofing job, for which he was paid under-the-table, and he had to have it surgically removed,
which required significant time out of work (id.). Plaintiff testified that his asthma was under
control with the aid of his inhaler (id. at 449). He reported that he could walk approximately 4
blocks without needing to rest and stand for approximately half an hour before needing to sit (id.
at 450). Plaintiff denied any limitations in his ability to sit, bend, crouch, or kneel and get back
up (id.). Plaintiff testified that he is “pretty much” blind in his left eye, which interferes with his
peripheral vision on that side (id. at 449, 451-52). His vision problem notwithstanding, Plaintiff
reported driving daily, initially for work and, since becoming unemployed, to friends’ houses (id.
at 442). Plaintiff attributed his inability to find new work to the “timing … not [being] there,”
and his tracheotomy tube being a deterrent for would-be employers, despite his willingness and
ability to work (id. at 450).
At the second hearing, Plaintiff testified that employers were “[r]eticent to hire” him
because of his tracheotomy tube, but that he thought he could work if hired (id. at 415). Plaintiff
had been collecting unemployment benefits through the first quarter of 2012 and acknowledged
that he had to certify that he was ready, willing, and able to work in order to do so (id. at 414).
By way of explanation, Plaintiff testified that he was looking for any type of work; “I was really
able to work, but I just couldn’t find work with my trach” (id.). Regarding his most recent job at
Big Y, Plaintiff testified that he was out of work for three weeks as a result of having surgery on
his hand due to an injury he sustained while working for his brother-in-law doing a weekend
roofing job, for which he was paid under-the-table (id. at 415-16). Plaintiff returned to his
position at Big Y after the three-week absence, but was let go three weeks later (id. at 417).
Plaintiff felt that he was let go as a result of a “personal conflict” (id. at 417). Plaintiff denied
having received any complaints or warnings while working at Big Y, and, other than perhaps
when “it got really hectic,” Plaintiff did “not really” have problems with remembering things
while working (id. at 418). Plaintiff attributed his inability to maintain other previous
employment to “my speech, my trach, and just the appearance of everything combined kind of
makes people leery and maybe uneasy” (id. at 417). Plaintiff testified that he could read and
write at a third or fourth grade level (id. at 418). He testified that his tracheotomy tube prevents
him from working in dusty environments, but denied that it causes him any pain (id. at 419-20).
He testified that the tube should be replaced about every six months, but his current tube was
about two years old; he had not had it replaced because he had no insurance to pay for it (id.).
Regarding his asthma, Plaintiff testified that it is worse in cold weather, as well as when he runs,
walks really fast, or does heavy lifting (id. at 420). His is, however, able to walk a flight of stairs
without problem (id. at 420-21). Plaintiff testified that when he gets short of breath, he utilizes
his inhaler (id. at 421). Plaintiff again testified to being “pretty much” blind in his left eye,
which impacts his peripheral vision, but does not prevent him from driving (id. at 421).
According to Plaintiff, he also biked regularly and went to the gym about two times per week,
where he worked “[m]ostly legs and upper body” (id. at 422). Plaintiff denied any limitations on
what he is able to do at the gym as a result of his impairments (id. at 422-23).
5. Plaintiff’s Father’s Testimony
Plaintiff’s father testified at both hearings. He testified that Plaintiff held the job at Big Y
for about two years (id. at 424). His understanding of why Plaintiff lost the job was that Plaintiff
had difficulty keeping up with a changing work schedule and following open-ended directions
(id. at 424-25). Plaintiff’s father described Plaintiff as a “people person,” who likes being
around people and helping them and liked the people he worked with, but thought that his
appearance sometimes made them uneasy (id. at 425). Plaintiff’s father reported that Plaintiff
reads and writes at a third grade level, but was able to pass his driver’s test (id. at 426-27).
Plaintiff’s father also testified regarding Plaintiff’s vision impairment in his left eye, and his
problems with breathing, swallowing, chronic nasal congestion, and infections (id. at 428-29).
He testified that he has never noticed Plaintiff stop doing anything because of his breathing (id.).
Plaintiff’s father testified that, in his view, Plaintiff’s biggest issue impeding him from getting or
holding a job are his problems with comprehension and problem solving (id. at 430).
6. Vocational Expert Testimony
There was testimony from vocational experts at both hearings. At the first hearing, the
ALJ posed the following hypothetical:
Let’s envisage a hypothetical individual, male, 25 years of age
with a 12th Grade education attained under the auspices of a
Special Education Program and past relevant work as has been
characterized for the Claimant in this matter. This individual has
been documented as having borderline intellect with math and
reading, learning disorders, history of stenosis of the larynx with a
permanent tracheotomy placement requiring ongoing maintenance,
asthma, [and] left eye visual impairments …. [F]or the first
hypothetical, I’m not going to impose any exertional limits, but I
am going to limit this individual to indoor work with no
concentrated exposure to dust, fumes, strong odors, temperature or
humidity extremes and it should be work that does not require use
of the voice more than occasionally. The work should also not
require a need for left peripheral vision. We’re going to limit the
work to simple, one to two-step tasks. Now the interaction
limitations are going to be somewhat unique in that the job itself
should not require interaction with co-workers or supervisors more
than occasionally. However, there’s no restrictions as to being
around people and possibly even a preference for being around
people. …. And the same would be true of the public. The job
should not require that you interact with the public, but being in a
place where the public is would not be a restriction. …. Given
these limitations, could such an individual perform any of this
Claimant’s past relevant work either as he performed it or as it is
generally understood in the national economy?
(Id. at 467-69). The VE responded that, considering Plaintiff’s previous work at Big Y as a
janitor position, such a person could perform Plaintiff’s past relevant work (id. at 469). The ALJ
then added a restriction that the work had to be in a clean environment. The VE testified that
past work would no longer qualify, but that other positions would, including assembler,
inspector, and packer positions in industries requiring clean environments, such as medical
supply, electronics, and pharmaceuticals (id.). The ALJ then added a light work restriction, and
the VE testified that there would still be similar jobs available (id.). The ALJ next added a
sedentary work restriction, and the VE responded that no packing positions would remain in any
significant numbers, but that inspector and assembly positions would (id. at 470-71). Finally, the
ALJ inquired whether positions would be available if the person, “due to problems with
breathing and other maladies were likely to either have to leave the place of employment prior to
the normal quitting time or be totally absent with one or the other of these occurrences happening
at least three times a month,” and the VE stated that the person would no longer be employable
(id. at 471).
A different VE testified at the second hearing based on the hypotheticals posed at the first
hearing. The second VE agreed that work would be available to a hypothetical individual with
all of the restrictions imposed by the ALJ up through the sedentary work restriction (id. at 433).
The VE testified that this would be true even if additional restrictions were added that the
individual be limited to one to two-step tasks that would be taught by demonstration with rare
changes in routine (id. at 434). If the individual were to miss work about two days per month as
a result of his disabilities, however, he would no longer be employable (id. at 434).
B. The ALJ’s Decision
To determine whether Plaintiff was disabled, the ALJ conducted the five-part analysis
required by the regulations. At the first step, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since his alleged onset date of October 1, 2005 (id. at 395 (“The
claimant worked after the alleged disability onset date, but this work activity did not rise to the
level of substantial gainful activity”)). At steps two and three, the ALJ found that Plaintiff had
certain severe impairments, consisting of “borderline intellectual functioning with mathematic,
reading and learning disorders; history of stenosis of the larynx with permanent tracheotomy
placement requiring regular maintenance; asthma and left eye vision impairment,” and concluded
that the impairments, taken separately or in combination, did not meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (id. at
396). Before proceeding to steps four and five, the ALJ found that Plaintiff had the RFC to:
perform a full range of work at all exertional levels but with the
following nonexertional limitations: he should be limited to indoor
work with no concentrated exposure to dust, fumes, strong odors,
and temperature or humidity extremes. He should work in an
industry requiring a clean environment based on the product
involved. He can perform a job that requires no more than
occasional use of his voice. He cannot perform a job that requires
the use of left peripheral vision. He can perform jobs that are
limited to simple one to two-step tasks. Finally, although the
claimant does not have to be in an isolated setting, he needs a job
that requires no more than occasional interaction with coworkers,
supervisors or the public for purposes of accomplishing his
(Id. at 397). At step four, the ALJ determined that Plaintiff had no past relevant work (id. at
401). Finally, at step five, relying on the testimony of an independent vocational expert, the ALJ
determined that Plaintiff could perform jobs found in significant numbers in the national
economy taking into account Plaintiff’s age, education, work experience, and RFC, and,
therefore, Plaintiff was not disabled (id. at 401-02).
Plaintiff claims on appeal that the ALJ’s conclusion as to his RFC is not supported by
substantial evidence and that the ALJ erred by not adopting the opinion of his primary care
physician when assessing his RFC. Plaintiff does not identify any specific limitation that should
have been included in the RFC, but was not. Nor does he identify which part of his primary care
physician’s opinion the ALJ purportedly erred in failing to adopt. Despite Plaintiff’s lack of
specificity in identifying any error, the court concludes that the ALJ did err in part. The ALJ’s
RFC assessment includes only non-exertional limitations and restrictions (id. at 397). The nonexertional restrictions are supported by substantial evidence, including the treatment records, the
consultative examinations of the state agency doctors, and the testimony from Plaintiff (id. at
397-401). The substantial evidence also supports the inclusion of some degree of exertional
limitation, however. On the other hand, the ALJ did not err in rejecting Plaintiff’s treating
physician’s opinion about Plaintiff’s likelihood of being absent from work as a result of his
impairments or treatment.
1. Non-Exertional Limitations
The ALJ’s RFC assessment restricts Plaintiff to indoor work in an industry requiring a
clean environment and with no concentrated exposure to dust, fumes, strong odors, and
temperature or humidity extremes. As shown by the medical records, Plaintiff has diagnosed
impairments of stenosis of the larynx with permanent tracheotomy and asthma. Dr. Purins
opined that, based on Plaintiff’s underlying asthma with chronic subglottic stenosis and
tracheotomy, Plaintiff needs to avoid concentrated exposure to extreme cold, heat, humidity,
fumes, odors, dusts, gases, and poor ventilation. Dr. Weeratne also concluded that Plaintiff
should avoid exposure to extreme cold, fumes, odors, dusts, gases, and poor ventilation. 3 The
ALJ gave great weight to the opinions of Drs. Purins and Weerante as to Plaintiff’s nonexertional environmental limitations as they were supported by the medical record, and he
incorporated them into his RFC (id. at 399). They are also consistent with Plaintiff’s testimony
that he is unable to work in dusty places and that cold weather exacerbates his asthma. Thus, the
Dr. Weeratne also indicated that Plaintiff should avoid concentrated exposure to hazards
(machinery, heights, etc.), but he failed to identify the hazards to be avoided or to explain the
basis for the restriction.
non-exertional environmental limitations in the ALJ’s RFC assessment are supported by
substantial evidence and are not in error.
The ALJ’s RFC assessment also restricts Plaintiff to jobs that require no more than
limited use of his voice and no use of his left peripheral vision. The BCH records from October
26, 2009, reflect that, as a result of Plaintiff’s history of subglottic stenosis with tracheotomy, his
voice quality is quite weak and breathy and “not optimal” (id. at 371-72). Both Plaintiff and his
father testified that Plaintiff is basically blind in his left eye. While Drs. Purins and Weeratne
did not specify any visual or communicative restrictions in their assessments of Plaintiff’s
records, the ALJ found that they were nevertheless supported by the medical record and
testimony. The ALJ’s incorporation of greater restrictions than the state agency physicians
found into his RFC was not error. See Carstens v. Comm’r of Soc. Sec., No. 12-1335, 2013 WL
3245224, at *6 (D.P.R. June 26, 2013) (“The fact that the ALJ gave plaintiff the benefit of the
doubt in concluding that plaintiff’s physical RFC was more limited than the physicians’ RFC
assessment should not be used to discount the ALJ’s determination.”).
The ALJ’s RFC assessment restricts Plaintiff to work requiring no more than simple one
to two-step tasks and no more than occasional interaction with coworkers, supervisors, or the
public for purposes of accomplishing his assigned tasks. The only evidence about mental
functional capacity comes from the consultative examination of Dr. Dean and the opinions of the
state agency psychologists. Dr. Dean diagnosed Plaintiff with learning disorders and borderline
intellectual functioning (id. at 298-99). Based on Dr. Dean’s report, Dr. Perelman concluded that
Plaintiff could understand and remember simple instructions; sustain concentration, persistence,
and pace for two-hour periods; and relate properly to others (id. at 308). Those opinions are
consistent with Plaintiff’s own testimony regarding his abilities and do not show mental
functional limitations beyond those that the ALJ incorporated into his RFC assessment. Thus,
the mental function limitations in the ALJ’s RFC assessment are supported by substantial
evidence and are not in error.
2. Exertional Limitations
The ALJ did not incorporate any exertional limitations in his RFC. However, the RFC
questionnaire that Dr. Wychowski, Plaintiff’s primary care physician, completed on January 8,
2009, specified exertional limitations relating to Plaintiff’s ability to lift, indicating that Plaintiff
could only occasionally lift up to 50 pounds and frequently lift up to 20 pounds. Drs. Purins and
Weerante offered similar opinions, concluding that Plaintiff could only occasionally lift and/or
carry up to 50 pounds and frequently lift and/or carry up to 25 pounds. These opinions are
consistent with Plaintiff’s testimony that lifting heavy things exacerbates his asthma. The ALJ
did not incorporate the doctors’ opinions as to Plaintiff’s lift and carry limitations into his RFC,
asserting that no underlying impairment related to exertion was established (id. at 399). This is
simply inaccurate as the record plainly establishes that Plaintiff suffers from subglottic stenosis
with asthma, and all of the opinion evidence supports a restriction on Plaintiff’s ability to lift and
carry as a result. The medical opinions regarding Plaintiff’s lift and carry restrictions are
consistent with the definition of medium work provided in the regulations. “Medium work” is
defined as work that “involves lifting no more than 50 pounds at a time with frequent lifting or
carrying objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567.
Dr. Wychowski also opined that Plaintiff can stand for at most 2 hours before needing to
sit down or walk around and can stand or walk for a total of no more than 2 hours and sit for a
total of at least 6 hours in an 8-hour work day. Dr. Wychowski’s opinions as to Plaintiff’s
limitations in sitting, standing, and walking are consistent with a sedentary work restriction.
“Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria
are met. …. [A]t the sedentary level of exertion, periods of standing or walking should generally
total no more than about 2 hours of an 8-hour workday, and sitting should generally total
approximately 6 hours of an 8-hour workday.” SSR 830-10, 1983 WL 31251, at *5 (1983). Drs.
Purins and Weeratne both opined that Plaintiff can stand and/or walk for about 6 hours in an 8hour workday. The state agency doctors’ opinions are consistent with a medium work
restriction. “A full range of medium work requires standing or walking, off and on, for a total of
approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting
or carrying objects weighing up to 25 pounds.” SSR 830-10, 1983 WL 31251, at *6 (1983).
Thus, the ALJ’s finding that Plaintiff has no exertional limitation is not supported by
substantial evidence. The evidence supports an exertional restriction of between sedentary and
3. Work Absences
Dr. Wychowski opined that Plaintiff would likely be absent from work as a result of his
impairments or treatment on average about two days per month. The ALJ was not required to
give controlling weight to this opinion simply because Dr. Wychowski is a treating source.
Pursuant to the regulations, a treating source’s opinion as to the nature and severity of a
claimant’s impairment is entitled to controlling weight only if it is “well-supported 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); 20 C.F.R. §
416.927(c)(2). As Plaintiff acknowledges, “the administrative law judge may reject a treating
physician’s opinion as controlling if it is inconsistent with other substantial evidence in the
record.” Castro v. Barnhart, 198 F. Supp. 2d 47, 54 (D. Mass. 2002). When a treating source’s
opinion is not given controlling weight, the ALJ must consider such factors as the length of the
treatment relationship and frequency of examination; the nature and extent of the treatment
relationship; the supportability of the treating source’s opinion; the consistency of the treating
source’s opinion with the record as a whole; the specialization of the treating source; and any
other factors which support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)(i)-(ii) and
(c)(3)-(6); 20 C.F.R. § 416.927(c)(2)(i)-(ii) and (c)(3)-(6). Here, as the ALJ explained, he
rejected Dr. Wychowski’s opinion about the average number of days Plaintiff would miss work
in a month as inconsistent with the medical record and the claimant’s own statements regarding
his abilities and activities (A.R. at 398). This was not in error.
The evidence shows that Plaintiff’s physical examinations were essentially normal
starting before Plaintiff’s alleged onset date and going forward throughout the relevant period.
Plaintiff’s physical examination at Sumner Pediatrics in January 2005 was benign (A.R. at 598600). When Plaintiff was seen at BCH on December 14, 2005, he was experiencing some
wheezing, but was working as a mail handler with no difficulty (id. at 203-09). Dr.
Wychowski’s office notes from March 2008, May 2009, and October 2009 do not reveal any
abnormalities (id. at 223-25, 354-56, 561-64). Plaintiff denied difficulty breathing or shortness
of breath at these visits, and he reported that his asthma was well-controlled and rarely required
use of his inhaler (id.). Plaintiff also reported that he was working in both March 2008 and May
2009 and that he biked and worked out at the gym (id.). BCH records from July 2009 report that
Plaintiff was “doing well from a psychosocial standpoint” and was working (id. at 363-69). At
both hearings, Plaintiff testified that he had problems finding a job, but that he was both willing
and able to work (id. at 36, 415). Indeed, he acknowledged certifying that he was ready, willing,
and able to work in order to collect unemployment benefits (id. at 414). Plaintiff also testified
that he was able to drive, bike, and go to the gym regularly (id. at 421-22).
Furthermore, the court rejects Plaintiff’s argument that the ALJ improperly discounted
Dr. Wychowski’s opinion because it was solicited. This represents a misreading of the ALJ
decision. As the ALJ stated, “the doctor’s opinion was rendered on a form provided by the
claimant’s representative and amounted to a checklist with scant analysis. When an opinion is
given in a cursory fashion, the ALJ can properly give it less weight” (id. at 400). Thus, the ALJ
relied on the cursory nature of the opinion and the lack of analysis in discounting it, not the fact
that it was solicited. Even if the ALJ considered the timing and impetus of Dr. Wychowski’s
opinion, however, any error was harmless because he had other valid reasons for rejecting it. See
Reyes v. Astrue, No. 11-30197-KPN, 2012 WL 2178963 at *6-7 (D. Mass. June 13, 2012)
(explaining that, where an ALJ discredits an opinion because it was solicited, the “decision can
still pass muster if the other reasons given to accord the opinion little weight are adequately
4. The Error Regarding Plaintiff’s Exertional Limitations Was Harmless
While the ALJ erred in not including any exertional limitation in his RFC assessment, he
inquired of the vocational expert whether work exists in the national economy for a hypothetical
person of Plaintiff’s age, education, and work experience with all of the restrictions the ALJ
included in his RFC, who, in addition, was limited to light work or sedentary work. The VE
testified that positions would be available for both light and sedentary restrictions. Thus, the
ALJ’s ultimate conclusion that Plaintiff was not disabled is sound even if Plaintiff is restricted to
sedentary work. Under these circumstances, the ALJ’s error in not including an exertional
limitation in Plaintiff’s RFC would not change the outcome and is harmless. See, e.g., Brasfield
v. Astrue, No. 8:11-cv-1733-T-TEM, 2012 WL 3893574, at *3 (M.D. Fla. Sept. 7, 2012)
(holding claimed error by the ALJ harmless where the ALJ’s hypothetical question to the VE
was more restrictive than the ALJ’s RFC, and the VE still identified jobs the plaintiff was
capable of performing, such that the ALJ’s ultimate determination was still supported by
For the reasons stated, Plaintiff’s motion for judgment on the pleadings (Dkt. No. 13) IS
DENIED, and the Commissioner’s motion for an order affirming the decision (Dkt. No. 23) IS
It is so ordered.
/s/ Katherine A. Robertson____
KATHERINE A. ROBERTSON
United States Magistrate Judge
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