Ayala v. Colvin
Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER Regarding Plaintiff's 15 MOTION for Judgment on the Pleadings and Defendant's 23 MOTION to Affirm the Decision of the Commissioner. For the reasons stated, Plaintiff's motion for judgment on the pleadings (Dkt. No. 15) is DENIED, and the Commissioner's motion for an order affirming the decision (Dkt. No. 23) is GRANTED. See attached Memo & Order for complete details. (Calderon, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
VIRGEN M. AYALA,
CAROLYN W. COLVIN,
Acting Commissioner of Social
Case No. 3:16-cv-30009-KAR
MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR JUDGMENT
ON THE PLEADINGS AND DEFENDANT’S MOTION TO AFFIRM THE DECISION OF
(Dkt. Nos. 15 & 23)
March 27, 2017
On January 13, 2016, plaintiff Virgen M. Ayala (“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 her claims for Supplemental Security Income (“SSI”)
and Social Security Disability Insurance (“SSDI”). Plaintiff asserts that the Commissioner’s
decision denying her such benefits – memorialized in an April 15, 2015 decision by an
administrative law judge (“ALJ”) – is in error. Specifically, Plaintiff alleges that the ALJ erred
by not assessing the severity of her tendonitis of the elbow and not finding it to be severe and by
not granting a treating physician’s assistant’s opinion controlling weight when assessing her
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. 15). 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. 14). 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.
Plaintiff applied for SSI and SSDI with a protective filing date of July 11, 2013, alleging
a March 1, 2010 onset of disability due to asthma, bacterial infection, hip pain, tendonitis, and
high blood pressure (Administrative Record (“A.R.”) at 17, 227-38, 247, 262). Plaintiff’s
applications were denied initially and on reconsideration (id. at 136-49, 155-60). Plaintiff
requested a hearing before an ALJ, and one was held on March 31, 2015, at which time Plaintiff
claimed disability due to arthritis and osteoarthritis in her back, hands, neck, and leg, tendonitis
of the elbow and arms, tinnitus, bilateral sensory hearing loss, and asthma (id. at 72-99, 161-62).
Following the hearing, the ALJ issued a decision on April 15, 2015, finding that Plaintiff was not
disabled and denying Plaintiff’s claims (id. at 11-28). The Appeals Council denied review on
November 19, 2015, and the ALJ’s decision became the final decision of the Commissioner (id.
at 1-10). This appeal followed.
A. Standard for Entitlement to Social Security Disability Insurance
In order to qualify for SSI and SSDI, a claimant must demonstrate that she is disabled
within the meaning of the Social Security Act.1 A claimant is disabled for purposes of SSI and
SSDI if she “is unable to engage in any substantial gainful activity by reason of any medically
For SSDI, the claimant also must demonstrate that the disability commenced prior to the
expiration of her insured status for disability insurance benefits. See 42 U.S.C. § 423(a)(1).
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 she “is not only unable to do his previous work, but cannot,
considering h[er] 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 [s]he lives, or whether a specific job vacancy exists for h[er], or
whether [s]he would be hired if [s]he applied for work.” 42 U.S.C. § 1382c(a)(3)(B); 42 U.S.C.
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
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 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. Medical Records2
On March 27, 2009, Plaintiff went to Mercy Medical Center emergency room
complaining of radiating left elbow pain with movement, but no pain at rest (id. at 439). She
reported that the pain had been intermittent over the previous two months (id.). On examination,
Plaintiff’s epicondyles were tender to palpation with pain on flexion and extension, but her
strength was full and her handgrip was strong (id. at 439). An x-ray of her elbow was negative
for fracture (id. at 440). The treating physician’s assistant suspected epicondylitis, prescribed
Percocet and ibuprofen, and advised Plaintiff to follow-up with her primary care provider (id.).
On April 30, 2009, Plaintiff’s primary care provider referred Plaintiff to Donald Griger,
M.D., at the Arthritis Treatment Center based on Plaintiff’s report of experiencing left “tennis
elbow” pain for three months that was not helped by nonsteroidal anti-inflammatory drugs
(NSAIDs) (id. at 382-83). Dr. Griger saw Plaintiff on May 6, 2009, at which time Plaintiff stated
that her left elbow pain radiated up and down her arm, was mild while at rest and worsened with
There is evidence that Plaintiff has been diagnosed with depression and anxiety, but she has not
alleged any mental functional limitations, and her arguments on appeal concern only her physical
condition. The summary of evidence is limited accordingly.
activity, and benefitted to some degree from medication (id. at 366-67). Dr. Griger’s physical
examination of Plaintiff was normal, and he diagnosed Plaintiff with left lateral epicondylitis and
left upper and lower arm pain and recommended physical therapy, exercise, and a splint (id.).
On May 22, 2009, J. Lewin, a physical therapist at the Arthritis Treatment Center,
evaluated Plaintiff (id. at 377-78). Lewin’s physical examination of Plaintiff’s left arm revealed
tenderness in the left lateral elbow, reduced strength but normal range of motion, and spasm
upon palpation (id.). Lewin’s plan of care included iontophoresis and exercise, with short-term
goals of education and elbow stretching and long-term goals of increasing strength and activities
of daily living (id.). Plaintiff participated in eight sessions of physical therapy between May 26,
2009 and June 29, 2009 (id.). At the final session, Plaintiff was still reporting left elbow pain,
and she was advised to follow up with Dr. Griger (id.).
Plaintiff met with Dr. Griger on July 6, 2009 and reported that she was continuing to
experience left elbow pain, along with mild intermittent left shoulder pain (id. at 362). Plaintiff
advised that she had not experienced significant benefit from physical therapy, brace usage, or
medication (id.). Upon physical examination, Dr. Griger noted that Plaintiff had reduced
strength in her left arm, but the results were otherwise normal (id. at 363). Dr. Griger diagnosed
Plaintiff with continued left lateral epicondylitis and mild shoulder bursitis and indicated that she
should follow-up with her primary care provider to consider an orthopedic consultation (id. at
362). He did not note any work-related restrictions (id.).
Plaintiff saw Dr. Griger again on August 20, 2009, and reported ongoing left elbow and
shoulder pain, and she still exhibited reduced strength in her left arm (id. at 358-59). Dr. Griger
diagnosed Plaintiff with chronic left lateral epicondylitis with no help from non-surgical
treatment options, as well as mild shoulder bursitis (id.). He again recommended that Plaintiff
follow up with her primary-care physician to consider an orthopedic consultation (id.).
Plaintiff did not see Dr. Griger again until March 14, 2011, at which time she reported
that she had been experiencing left lateral elbow pain for more than two years (id. at 356-57).
Physical examination of Plaintiff’s musculoskeletal examination was normal, and Dr. Griger
diagnosed Plaintiff with chronic left lateral epicondylitis that did not respond to non-surgical
treatment options and once again recommended that Plaintiff discuss an orthopedic consultation
with her primary care provider (id.). He did not assess any work-related restrictions (id.).
Plaintiff returned to Dr. Griger on August 8, 2011, and her examination was normal
except for reduced lower extremity reflexes (id. at 352-53). Dr. Griger reiterated his
recommendation that Plaintiff pursue an orthopedic consultation to review surgical treatment
Plaintiff established primary care at Northgate Medical, P.C. on August 3, 2011, and on
December 13, 2011, she had “no complaints” (id. at 450). Plaintiff was seen by Luis Vicioso,
M.D. of Northgate on January 20, 2012, following an emergency room visit for a right ankle
sprain reportedly resulting from a fall (id. at 449). Dr. Vicioso advised Plaintiff to continue to
wear an air cast for 10-14 days, which presumably had been provided to her in the emergency
room, and prescribed oxycodone and Motrin for pain (id.). Plaintiff returned to Dr. Vicioso on
February 3, 2012, at which time she reported that the medications were partially relieving her
pain, and, by March 19, 2012, Plaintiff reported that she was feeling “much better” (id. at 44748).
Plaintiff next saw Dr. Vicioso for “on/off” left elbow pain on July 27, 2012 (id. at 452,
445). Dr. Vicioso noted that Plaintiff’s left elbow was tender to palpation, and he diagnosed her
with left elbow tendonitis and prescribed tramadol as needed (id.). Dr. Vicioso also completed a
“Certificate of Chronic Serious Illness,” and included left elbow tendonitis, along with diabetes
mellitus, dyslipidemia, vitamin D deficiency, hypertension, and goiter (id. at 381).3
On September 13, 2013, Plaintiff was evaluated by Thu Nguyen, a physician’s assistant
at Northgate (id. at 547-49). Plaintiff reported no localized joint pain at the time, and
examination of Plaintiff’s musculoskeletal system showed normal movement of all extremities
(id.). Nguyen assessed Plaintiff as having hypertension, hyperlipidemia, obesity, and Type 2
diabetes mellitus (id.).
Plaintiff met with Nguyen again on November 18, 2013, at which time she was
complaining of bilateral hand and finger pain for the past few weeks, which increased with
movement (id. at 542-46). Plaintiff reported that she had a history of arthritis and denied taking
any pain medications (id.). Nguyen’s examination revealed abnormalities to her fingers and
tenderness to palpation (id.). Nguyen added arthralgia (i.e. pain in a joint) of the right and left
hands to Plaintiff’s assessments (id.). He prescribed Tylenol Arthritis 650 mg and recommended
that Plaintiff exercise three times a week and undergo a follow-up examination in three months
Plaintiff underwent an initial consultation and examination at Valley Chiropractic &
Rehabilitation on May 20, 2014 (id. at 567-69). In a “pain drawing,” she indicated that she felt
pain in her neck, lower back, hands, left knee, and right foot, which she rated a 10 for
“unbearable” (id. at 569). On examination, Plaintiff exhibited decreased passive range of motion
with tenderness to palpation in her cervical and lumbosacral spine and moderate hypertonicity in
The single page form, in addition to requesting information about the “Nature of Chronic
Serious Illness,” sought the “Customer’s Name and Address” and “Gas & Electric Account No.,”
suggesting that it bore some relationship to one of Plaintiff’s utility accounts (id. at 381).
the muscles (id. at 567-68). She was diagnosed with cervical and lumbosacral segmental
dysfunction, cervicalgia, backache, and myalgia and myositis (id.). It was recommended that she
return for chiropractic treatment three times per week for four weeks (id.). The short term
treatment goals were to reduce Plaintiff’s pain by 30-50% with a measurable decrease in other
symptoms within four to six weeks, and the long term goals were for Plaintiff to be able to walk
as far as she wanted without increased pain, stand for several hours with no pain, and undertake
personal care without pain or with maximally improved pain in eight to twelve weeks (id.).
Plaintiff underwent six chiropractic treatment sessions between May 20 and June 3, 2014 (id. at
561-68). Plaintiff reported that the therapy felt good after the first session, that she thought it
was helpful after the second, and that her headaches were improving after her third (id.). On
June 3, 2014, Plaintiff reported only that her lower back was sore, and the chiropractor noted that
she was progressing as expected (id.).
Plaintiff met with Nguyen again on June 18, 2014 (id. at 576-81). Plaintiff reported
lower back and neck pain, as well as right hand pain, which she indicated was stable (id.).
Nguyen noted that Plaintiff’s hands showed no abnormalities, but that her cervical and
lumbosacral spine showed abnormalities and tenderness to palpation (id.). Nguyen assessed
Plaintiff as having hypertension, hyperlipidemia, obesity, Type 2 diabetes mellitus, and arthritis
(id.). Nguyen continued Plaintiff on Tylenol Arthritis 650 mg, provided a referral for pain
management, and recommended that Plaintiff continue to exercise three times per week and
follow-up in three months (id.).
Plaintiff underwent a pain assessment at Baystate Health Pain Management Center on
September 9, 2014 (id. at 630-31). Plaintiff reported a 10-year history of low back and right leg
pain, which she rated a four on a scale of one to ten (id.). Plaintiff was offered a return
appointment for a physical examination and discussion of treatment options (id.).
Plaintiff met with Nguyen for a follow-up examination on September 18, 2014 (id. at
589-593). Plaintiff reported that she was still experiencing back and neck pain, as well as right
hand pain, which Plaintiff again reported was stable (id.). Examination of Plaintiff’s
musculoskeletal system revealed no abnormalities and normal movement of all extremities (id.).
Nguyen assessed Plaintiff with hypertension, hyperlipidemia, obesity, Type 2 diabetes mellitus,
arthritis of the hand, neck pain, and back ache (id.). He advised Plaintiff to follow-up with a
chiropractor for her back and neck pain and recommended exercise four times per week with a
follow-up in three months (id.).
Plaintiff met with Nurse Practitioner Pamela Slagle at Northgate on December 18, 2014
(id. at 644-46). Plaintiff reported that she was feeling well and reported no recent changes to her
medical history (id.). Slagle assessed Plaintiff as having hypertension, hyperlipidemia, and Type
2 diabetes and recommended follow-up in three months (id.).
On February 16, 2015, Plaintiff met with Nguyen to request a referral to the Arthritis
Treatment Center for pain in her hands, knees, and back (id. at 647-650). Review of systems
indicated back pain and pain localized to one or more joints (id.). On physical examination,
Nguyen noted tenderness to palpation of the upper and lower extremities and back (id.). Nguyen
assessed Plaintiff with arthritis and arthralgia in multiple sites and prescribed acetaminophen
2. Opinion Evidence
On March 4, 2014, Birenda Sinha, M.D., issued his assessment, finding that the evidence
did not document any severe impairments (id. at 102-08). With regard to Plaintiff’s elbow pain,
Dr. Sinha noted that it had been treated with cortisone injections, and no recent medical records
documented an elbow problem (id. at 106).
Robert McGan, M.D., reviewed the updated evidence of record on July 22, 2014, and he
agreed with Dr. Sinha’s assessment of no severe impairment, including tendonitis (id. at 116124). By this time, Plaintiff was also alleging arthralgia of her hands severe enough that she was
unable to hold things (id.). Dr. McGan noted that the June 18, 2014 treatment notes indicated
that Plaintiff had no hand abnormalities (id. at 122). While she had some tenderness to palpation
of her neck and lower back, there was no evidence of any functional impairment of her upper or
lower extremities and her gait was normal (id. at 122-23). The November 18, 2013 treatment
notes showed some tenderness to palpation of the fingers on both hands, and she was diagnosed
with arthralgia, but without functional limitations (id. at 123).
On August 12, 2014, Nguyen wrote a single-page “To Whom It May Concern” letter
regarding Plaintiff’s medical conditions (id. at 603). He identified Plaintiff’s diagnoses as
osteoarthritis, low back pain, and neck pain (id.). He then stated, “[d]ue to these medical
conditions, patient has functionallimitations [sic] to work related to heavy physical activities
such as walking, standing, lifting, carrying and handling heavy object [sic] over 10 pounds” (id.).
3. Plaintiff’s Testimony
Plaintiff was 59 years old at the time of her hearing (id. at 75). She completed the tenth
grade, and her primary language is Spanish (id. at 76, 87-88). Her primary work experience has
been that of an assembler and a cleaner (id. at 77-78, 94-95).
Plaintiff testified that she cannot work full-time because of her age and pain in her lower
back and hands (id. at 78-79). According to Plaintiff, her lower back pain is worse if she walks,
stands, or sits too much, and she specified that sitting for five to six hours would be too much (id.
at 80). Plaintiff testified that she can walk three to four blocks before needing to stop, sit for
two-and-a-half to three hours before needing to get up, and stand for 30 minutes before needing
to sit down (id. at 83-84). Plaintiff testified that her fingers do not close properly, especially in
the mornings, and she has difficulty picking up and holding things (id. at 81-82). Plaintiff denied
difficulty with zippers, buttons, or opening small jars, however (id. at 82). Plaintiff also testified
that she has pain in her neck that comes and goes and pain in her leg (she did not specify which
one) that is constant (id. at 82). According to Plaintiff, she can lift and carry no more than 10-20
pounds comfortably (id. at 84). Plaintiff reported a tendency to lose her balance and fall (id. at
82). Plaintiff stated that she experiences intermittent ringing in her ears, as well as occasional
bleeding in her ears with loud noises (id. at 84-85). She testified that she experiences asthma
symptoms when she is in dirty, dusty, or smoky environments (id. at 85).
4. Vocational Expert’s Testimony
The vocational expert (VE) testified that a hypothetical individual of Plaintiff’s age,
educational background, and work history, with an RFC for light work,4 in an environment with
no concentrated exposure to hazardous conditions such as unprotected heights and dangerous
machinery, and with only occasional balancing, stooping, kneeling, crouching, crawling, and
climbing ramps and stairs, and no climbing ladders, ropes, and scaffolds, could perform
Plaintiff’s past relevant work as an assembler and a cleaner (id. at 95-96). An inability to
communicate in English would not preclude such work (id.). If the hypothetical individual were
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking and standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567
to be off-task twenty percent of the workday or were to miss three or more days of work per
month, the individual could not perform competitive work (id. at 97-98).
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 her alleged onset date of March 1, 2010 (id. at 19). At the
second step, the ALJ found that Plaintiff had a severe impairment, osteoarthritis, and noted
Plaintiff’s additional alleged impairments of diabetes mellitus, low back pain, neck pain,
depression, anxiety, and insomnia (id. at 19-20). The ALJ did not mention tendonitis of the
elbow at step two. At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (id. at 21). Before proceeding to steps
four and five, the ALJ found that Plaintiff had the RFC to “perform light work as defined in 20
C.F.R. 404.1567(b) and 416.967(b) except she can occasionally balance, stoop, kneel, crouch,
crawl, and climb ramps and stairs but she should never climb ladders, ropes or scaffolds. The
claimant must avoid concentrated exposure to hazardous conditions such as unprotected heights
and dangerous machinery” (id. at 21). In formulating Plaintiff’s RFC, the ALJ noted Plaintiff’s
March and August 2011 treatment records for her left lateral epicondyle and that she had been
diagnosed with left elbow tendonitis (id. at 22). At step four, the ALJ determined that Plaintiff
was able to perform her past relevant work as an assembler and a cleaner (id. at 23). Therefore,
the ALJ found that the Plaintiff was not disabled (id. at 23).
1. Plaintiff’s Tendonitis of the Elbow
Plaintiff’s first argument on appeal is that the ALJ erred by not assessing the severity of
her tendonitis of the elbow and by not finding it to be a severe impairment. As set forth above,
step two of the sequential evaluation process requires the Commissioner to determine whether a
claimant possesses a severe impairment. See 20 C.F.R. § 416.920(a)(4)(ii); 20 C.F.R. §
404.1520(a)(4)(ii). It is not enough for a plaintiff to be diagnosed with an impairment. Grady v.
Astrue, 894 F. Supp. 2d 131, 141 (D. Mass. 2012). “A mere diagnosis of a condition ‘says
nothing about the severity of the condition.’” White v. Astrue, No. 10-10021-PBS, 2011 WL
736805, at *6 (D. Mass. Feb. 23, 2011) (quoting Higgs v. Bown, 880 F.2d 860, 863 (6th Cir.
1988)). For an impairment to be “severe,” a plaintiff must provide evidence that it significantly
limits his or her physical or mental ability to perform basic work activities. See 20 C.F.R. §
416.920(c); 20 C.F.R. § 404.1520(c).
Here, the evidence establishes that Plaintiff sought treatment for left elbow pain in 2009,
before her March 1, 2010 alleged onset of disability, and was diagnosed with left lateral
epicondylitis that did not benefit from non-surgical treatment options (A.R. at 358-59, 362-63,
366, 377-78, 382-83, 439-440). At the time of her diagnosis, Plaintiff was still working in an
office cleaning job (id. at 78). As observed by the ALJ, Plaintiff sought treatment for continued
left elbow pain after her alleged onset of disability, in March and August 2011, at the Arthritis
Treatment Center (id. at 22, 352-53, 356-57). She also sought treatment on July 27, 2012, with
Dr. Vicioso of Northgate, at which time Plaintiff reported “on/off” left elbow pain with a history
of steroid injection and physical therapy (id. at 445). Dr. Vicioso noted that Plaintiff’s left elbow
was tender to palpation, diagnosed her with left elbow tendonitis, and prescribed tramadol as
needed (id. at 445). There is no evidence that Plaintiff sought any treatment for left elbow pain
at any time subsequent to this appointment.5 Dr. Sinha, the state agency physician, took this into
consideration, specifically highlighting the lack of any recent medical records documenting an
elbow problem, when he opined that Plaintiff did not suffer from any severe impairments,
including relating to her elbow (id. at 102-108). Plaintiff’s testimony at the March 2015 hearing
did not include reference to any pain in her elbow.
This evidence does not support a finding that Plaintiff’s left elbow condition was a severe
impairment. Plaintiff did not present any evidence that pain in her left elbow caused any
limitations in her ability to perform basic work activities. She was working at the time of
diagnosis, and Dr. Griger did not identify any work-related restrictions. The claimant testified
that she could comfortably lift 10 to 20 pounds. Moreover, the absence of records regarding
treatment for Plaintiff’s left elbow at any time after July 27, 2012, and the lack of testimony from
Plaintiff regarding elbow pain are both consistent with the ALJ’s conclusion that Plaintiff’s left
elbow condition was not a severe impairment. See Kosinski v. Astrue, No. 10-30097-KPN, 2011
WL 3678836, at *4 (D. Mass. Aug. 19, 2011) (noting that “lack of or gaps in medical treatment
may be considered evidence when determining the severity and scope of a disability,” as can a
lack of testimony from the plaintiff about a condition).
Nor does the analysis change because the ALJ failed to specifically mention Plaintiff’s
history of left elbow pain at step two of his analysis. The ALJ subsequently discussed Plaintiff’s
treatment for her left elbow in his RFC assessment, demonstrating that he considered the
evidence relating to it in determining whether Plaintiff was disabled as required. 20 C.F.R. §
416.929(a); 20 C.F.R. §404.1529(a). See also White v. Colvin, No. CA 14-171 S, 2015 WL
An August 10, 2012 record notes “elbow pain” as a continuing condition, but the purpose of the
visit was to follow-up on an emergency room visit for a rash, and the physical examination did
not include the elbow (id. at 444).
5012614, at *1, 8 (D.R.I. Aug. 21, 2015) (adopting a recommendation to affirm the decision of
the commissioner where the ALJ failed to discuss whether the plaintiff’s mood disorder was a
severe impairment at step two, but discussed the mood disorder in the RFC analysis). Moreover,
even if the ALJ did err in not finding that Plaintiff’s left elbow tendonitis was a severe
impairment, the error would be harmless because the ALJ found that Plaintiff’s osteoarthritis was
severe, and he took into consideration all of Plaintiff’s impairments when assessing her RFC,
again as required. 20 C.F.R. § 416.945(a)(2); 20 C.F.R. § 404.1545(a)(2). See also Noel v.
Astrue, No. 11-cv-30037-MAP, 2012 WL 2862141, at *6 (D. Mass. July 10, 2012) (holding that
even if the ALJ erred at step two, any such error was harmless where the ALJ considered all of
the plaintiff’s impairments, severe and non-severe, when assessing RFC); Grady v. Astrue, 894
F. Supp. 2d 131, 142 (D. Mass. 2012) (same).
2. PA Nguyen’s Opinion
Plaintiff’s second argument on appeal is that the ALJ erred by not granting controlling
weight to the opinion of Nguyen, her treating physician’s assistant at the Arthritis Treatment
Center, as reflected in Nguyen’s August 12, 2014 “To Whom It May Concern Letter” (A.R. at
603). In the letter, Nguyen states that Plaintiff “has functionallimitations [sic] to work related to
heavy physical activities such as walking, standing, lifting, carrying and handling heavy object
[sic] over 10 pounds” (id.). The ALJ gave “little weight” to the opinion, explaining that he found
it to be “not supported by the medical evidence of record, [Nguyen’s] own records, and
[Nguyen] is not an acceptable medical source under the regulations” (id. at 22). The ALJ also
noted that the state agency physicians “reviewed Plaintiff’s records for around the same time
frame, and concluded her medically determinable impairments were non-severe and disclosed no
functional limitation” (id.).
“[An ALJ] must give controlling weight to the opinion of a ‘treating source’ when that
opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is consistent with substantial evidence in the record.” Taylor v. Astrue, 899 F. Supp. 2d 83,
87 (D. Mass. 2012) (Taylor I) (citing 20 C.F.R. § 416.927(c)(2)). See also 20 C.F.R. §
404.1527(c)(2). A “treating source” is an “acceptable medical source,” as that term is defined by
the regulations. See 20 C.F.R. § 416.927(a)(2); 20 C.F.R. § 404.1527(a)(2). A physician’s
assistant is not included in the regulation’s description of an “acceptable medical source.” See
20 C.F.R. § 416.913(a); 20 C.F.R. § 404.1513(a). Instead, a physician’s assistant is an “other
source” whose opinion is not “presumptively entitled to controlling weight.” Taylor v. Colvin,
Civil Action No. 15-30183-KAR, 2016 WL 6778214, at *4 (D. Mass. Nov. 15, 2016). See 20
C.F.R. § 416.913(d)(1); 20 C.F.R. § 404.1513(d)(1) (“other sources” include “[m]edical sources
not listed in paragraph (a) of this section (for example … physicians’ assistants …”)). See also
Anderson v. Colvin, Civil No. 14-cv-15-LM, 2014 WL 5605124, at *5 (D.N.H. Nov. 4, 2014)
(“Only ‘acceptable medical sources’ can be considered treating sources whose medical opinions
are entitled to controlling weight.”) (citing SSR 06–03p, 2006 WL 2329939, at *2 (Aug. 9,
2006)). Thus, Nguyen is not an acceptable medical source under the regulations, as noted by the
ALJ in his decision, and his opinion was not entitled to controlling weight.
As “other source” evidence, the ALJ had broad discretion in weighing Nguyen’s views as
expressed in the letter. Gagnon v. Astrue, No. 1:11-cv-10481-PBS, 2012 WL 1065837, at *5 (D.
Mass. Mar. 27, 2012). An ALJ need only “adequately explain his treatment of the [other source]
opinion so that a reviewer can determine if the decision is supported by substantial evidence.”
Taylor I, 899 F. Supp. 2d at 88-89 (footnote omitted). As set forth above, the ALJ did so here.
He explained that Nguyen’s opinion as stated in the letter was inconsistent with Nguyen’s own
records, which show a lack of symptoms and objective findings both before and after the letter,
on September 13, 2013 and September 18, 2014 (A.R. at 547-49, 589-93). It is also inconsistent
with Dr. Griger’s normal examination on March 14, 2011, in which he assessed no work-related
restrictions (id. at 356-57). Finally, it is inconsistent with the opinions of the two state agency
physicians, both of whom assessed Plaintiff as having no functional limitations (id. at 102-08,
116-124). An additional reason for the ALJ to assign little weight to Nguyen’s opinion as
expressed in the letter is that it provides no specific functional limitation with respect to
Plaintiff’s ability to walk or stand. See Carr v. Astrue, No. 09cv10502-NG, 2010 WL 3895189,
at *9 (D. Mass. Sept. 30, 2010) (“[T]he ALJ was … right to minimize [the doctor’s] opinion
because she offered little assessment of specific functional capabilities.”). Thus, the ALJ did not
err in his treatment of Nguyen’s opinion.
For the reasons stated, Plaintiff’s motion for judgment on the pleadings (Dkt. No. 15) 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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