Nicola v. Colvin
Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the reasons stated, Plaintiff's Motion for an Order Reversing the Commissioner's Decision - (Dkt. No. 17) is DENIED, and the Acting Commissioner's/Defendant's Motion to Affirm the Decision of the Commissioner - (Dkt. No. 18) is GRANTED. The case will be closed. (Finn, Mary)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
) Civil Action No. 3:16-cv-30055-KAR
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION FOR JUDGMENT
ON THE PLEADINGS AND DEFENDANT'S MOTION TO AFFIRM THE DECISION OF
(Dkt. Nos. 17 & 18)
Before the court is an action for judicial review of a final decision by the Acting
Commissioner of the Social Security Administration ("Commissioner") regarding an individual's
entitlement to Social Security Disability Insurance Benefits ("DIB") pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3). Plaintiff Colleen Nicola ("Plaintiff") asserts that the Commissioner's
decision denying her such benefits -- memorialized in a November 21, 2014 decision of an
administrative law judge ("ALJ") -- is not supported by substantial evidence. Specifically,
Plaintiff alleges that the ALJ erred by failing to: (1) find that her mental impairments and carpel
tunnel syndrome ("CTS") were not severe impairments; (2) fully credit her hearing testimony;
(3) afford the independent vocational expert's ("VE's") answer to a hypothetical question
appropriate weight; and (4) afford her treating physician's opinion controlling weight. Plaintiff
has moved for judgment on the pleadings (Dkt. No. 17), while the Commissioner has moved to
affirm (Dkt. No. 18).
The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); Fed. R.
Civ. P. 73. For the following reasons, the court will ALLOW the Commissioner's motion to
affirm and DENY Plaintiff's motion for judgment on the pleadings.
The thirty-seven year old Plaintiff applied for DIB on February 5, 2013 alleging an onset
of disability on November 14, 2012 due to injuries that she sustained in a motor vehicle accident
on that date (Administrative Record "A.R." at 17, 195). In her application for DIB, Plaintiff
alleged that she was disabled due to possible brain injury, "'foggy head,'" loss of balance,
stuttering, depression and anxiety, and arthritis in her back (id. at 93). The application was
denied initially and upon reconsideration (id. at 13). Following a hearing on October 16, 2014,
the ALJ issued his decision on November 21, 2014 finding Plaintiff was not disabled before June
24, 2014, but became disabled on that date and remained disabled thereafter (id. at 13). On
January 29, 2016, the Appeals Council denied review of the ALJ's decision (id. at 5), and this
In support of the disabling conditions listed in Plaintiff's application for DIB benefits, she
presented the ALJ with extensive medical evidence spanning the period from 2010 through 2014.
Because Plaintiff challenges the ALJ's denial of benefits from November 14, 2012 to June 24,
2014, the court focuses on the records of Plaintiff's condition relevant to that period.
In the aftermath of the November 14, 2012 motor vehicle accident, Plaintiff went to the
Berkshire Medical Center ("BMC") emergency room where she was observed talking with a
friend and eating a large grinder while she waited for treatment (id. at 430). She complained of
pain in her head and neck and nausea (id. at 423, 430). Plaintiff was alert and oriented x 4 (id. at
423). The examiners found no evidence of head trauma (id. at 423). A CT scan of her head
revealed a small hypodensity in the left parieto-occipital region suggestive of chronic
encephalomalacia (id. at 370). 1 She experienced pain and decreased/limited range of motion in
her neck (id. at 423). The cervical spine CT scan showed no change since July 6, 2010 and no
evidence of acute traumatic lesion (id. at 363). The emergency department physician concluded
that Plaintiff had suffered a concussion without loss of consciousness and a strained neck (id. at
424). Plaintiff left the emergency department with a cervical collar, a steady gait, and no
additional complaints (id. at 431, 433).
On the day following the accident, Plaintiff visited Marjorie Y. DeVries, M.D., her
primary care provider at Family Practice Associates, LLP, complaining of neck pain and
persistent headaches, nausea, and light sensitivity (id. at 364). Plaintiff thought she lost
consciousness either before or after the collision (id.). Dr. DeVries noted that Plaintiff's speech
was "somewhat slurred and dysarthric" (id. at 366). 2 Plaintiff's neurologic assessment was
normal with the exception of "very mild right finger to nose deficit" and "[r]eflexes [of] 2+ in the
upper extremities and extremely hyperreflexive . . . in the lower extremities with a few beats of
"Encephalomalacia is defined as 'localized softening of brain tissues due to inflammation or
hemorrhage . . . [and is] among the most serious types of brain damage that can affect individuals
from various age groups.'" Callaway v. Colvin, CV 115-166, 2017 WL 187158, at *3 (S.D. Ga.
Jan. 17, 2017), adopted sub nom. Callaway v. Berryhill, CV 115-166, 2017 WL 534352 (S.D.
Ga. Feb. 9, 2017) (citation omitted).
"Disarthria" is speech that is "not clearly intelligible." R. Sloane, The Sloane-Dorland
Medical-Legal Dictionary 208 (1987).
clonus at the ankles" (id.). Dr. DeVries ordered brain MRIs with and without contrast (id. at
On November 27, 2012, Plaintiff underwent the MRIs (id. at 413, 415). The images
without contrast showed a focal encephalomalacia in the left parieto-occipital region similar to
the one observed on the CT scan taken at BMC after the accident (id. at 413). The MRI with
contrast suggested chronic encephalomalacia without evidence of arteriovenous malformation
(id. at 415).
Dr. DeVries referred Plaintiff to Thomas Kwiatkowski, M.D. for a neurologic assessment
due to Plaintiff's reported memory loss, stuttering, and more frequent headaches (id. at 359). On
December 5, 2012, Dr. Kwiatkowski reported a total score of 36/38 on a short mental status
examination (id. at 360). Plaintiff was alert, oriented, appropriate, and a "fair historian" (id.).
Her motor and sensory skills were normal as were her coordination and gait (id.). Dr.
Kwiatkowski opined that she probably suffered a mild concussion as a result of the accident, but
did not have a seizure (id.). He attributed "some" of her speech and memory difficulties to her
psychiatric "comorbidities," specifically depression, anxiety, and ADD (id.).
Plaintiff underwent an EEG on December 26, 2012 (id. at 453). Alec S. Kloman, M.D.
did not observe any focal or diffuse electrophysiologic abnormalities and did not identify
epileptiform discharges, but noted that a clinical diagnosis of seizure or epilepsy could not be
On January 11, 2013, Dr. DeVries reported that Plaintiff complained of a speech
abnormality (id. at 378). Specifically, Plaintiff described knowing what she wanted to say, but
having "a great deal of trouble forming the words and continu[ing] to stutter," although Dr.
DeVries noted that Plaintiff's speech had improved since her last visit (id. at 378, 380). Plaintiff
reported that her headaches and neck pain were not exacerbated by the accident, but she
complained about poor balance (id. at 378-79). Dr. DeVries wanted another neurologist's
opinion (id. at 380).
Plaintiff visited the BMC emergency room on January 26, 2013 complaining of a
headache, nausea, and dizziness (id. at 390, 399). She was oriented x 4, her gait was steady, and
she displayed normal motor strength, senses, finger-to-nose tests, and rapid alternating
movements (id. at 390, 400). She did not exhibit signs of pronator's drift or Rhomberg (id. at
400). CT scans of Plaintiff's brain and sinuses showed "[n]o evidence of an acute intracranial
abnormality" (id. at 401, 408-09). The irregularity in her left occipital lobe had not changed
since the prior examinations (id. at 408). Plaintiff was diagnosed with an inner ear inflammation
and prescribed Meclizine (id. at 402).
On February 12, 2013, Dr. DeVries noted that Plaintiff was "clearly different
neurologically than she was before the [November] accident" and had not yet obtained the
second neurologist's opinion (id. at 807). She still stuttered and her speech was dysarthric, but
her hyperreflexia (increased reflexes) had improved since the last visit and clonus was absent (id.
at 808-09). The records of Plaintiff's March 29, 2013 visit to Dr. DeVries showed that her
dysarthria, headaches, dizziness, and poor concentration persisted (id. at 804-05).
Veronica Vanderhorst, M.D. conducted a neurological assessment of Plaintiff on April
22, 2013 (id. at 513). Plaintiff was alert, attentive, and oriented (id. at 515). Her memory was
intact (id.). The results of the examination of Plaintiff's deep tendon reflexes were normal except
she had "diffusely and symmetrically brisk reflexes," which Dr. Vanderhorst attributed to her
"overall increased level of vigilance" (id. at 515-16). Plaintiff did well on a verbal fluency test
(id. at 515). Dr. Vanderhorst reported that Plaintiff's language was "formally fluent and intact
without problems with comprehension, naming and reading" (id.). She tended to stutter at times,
particularly when discussing "current ongoing problems," but she did not stutter during most of
the exam (id.). Dr. Vanderhorst opined that because the area of encephalomalacia was "quite
remote from the area that [controls] motor components of speech," Plaintiff's stuttering was
"most likely a functional phenomenon" (id. at 516-17). According to Dr. Vanderhorst, it "may
be a way for [Plaintiff to tell] the world that she is not doing well" (id. at 517). Dr. Vanderhorst
posited that the motor vehicle accident was caused by Plaintiff falling asleep, and recommended
that Plaintiff undergo a sleep study (id. at 516, 517).
On April 30, 2013, Plaintiff told Dr. DeVries that she felt "slightly better" (id. at 799).
Dr. DeVries noted that Plaintiff's stutter had improved and responses to questions came faster
(id. at 800). Dr. DeVries recommended a sleep study to determine whether Plaintiff suffered
from sleep apnea (id.). On July 9, 2013, Dr. DeVries noted that Plaintiff's mood seemed
"somewhat improved," her headaches were less frequent, and her neurologic abnormalities,
including stuttering, were "slightly better" (id. at 792). Dr. DeVries indicated that Plaintiff could
resume driving and "possibly return to work" after she underwent treatment for sleep apnea (id.).
Dr. Vanderhorst reevaluated Plaintiff's neurological condition on April 11, 2014 (id. at
851). She noted improvements in Plaintiff's affect and ability to make eye contact (id. at 852).
Plaintiff's stuttering had "improved dramatically" since her first visit (id.). She stuttered "a
couple of times" at the beginning of the visit and did not stutter later (id. at 851, 852). Dr.
Vanderhorst opined that Plaintiff's stuttering was related to her depression and history of
domestic abuse and was further triggered by stressors (id. at 852). Dr. Vanderhorst explained to
Plaintiff that her stuttering would continue to improve as she addressed her depression (id.).
Dr. DeVries' report of April 25, 2014 notes that Plaintiff struck the right frontal area of
her head on the ground when she slipped and fell on ice on April 16, 2014 (id. at 869, 872).
Plaintiff complained of persistent headaches and the return of some of her previous neurologic
symptoms -- stuttering, problems with word retrieval, and difficulty concentrating -- which had
improved before she fell (id. at 872, 874). Dr. DeVries opined that Plaintiff would return to her
neurological "baseline" in three to four weeks (id. at 874).
Neck and back
Joshua Yurfest, M.D. treated Plaintiff's neck and back. He diagnosed cervical radiculitis,
intervertebral disc injury, myofascial pain, somatic dysfunction, and lateral epicondylitis (see,
e.g. id. at 787, 888, 890).
Plaintiff's neck pain radiated into her arms causing weakness (id. at 503, 887). Plaintiff
received trigger point injections of lidocaine in August and December, 2012, February, May,
July, September, and November 2013, and March and June 2014 (id. at 500, 504, 781, 783, 787,
779, 888, 890, 892).
In December 2012, Plaintiff reported to Dr. Yurfest that medications relieved her neck
pain, which she assessed as 3 on a scale of 10 (id. at 786-87). Plaintiff visited BMC's emergency
department on May 20, 2013 complaining of fever and fatigue after she was scratched and bitten
by a cat (id. at 796). The record states "[n]o neck pain" and normal range of motion (id. at 796,
797). Dr. Yurfest's progress note of July 24, 2013 indicates that Plaintiff complained about the
reduced mobility of her neck and the side effects of her pain medication (id. at 780). On
September 24, 2013, Plaintiff reported that her neck pain had decreased, but the medication
caused side effects (id. at 778). Dr. Yurfest's record of Plaintiff's November 21, 2013 visit
indicates that Plaintiff's neck pain had improved, but she was still suffering side effects from the
medication (id. at 887). Plaintiff complained of moderate bilateral lower back pain (3-4 on a
scale of 10) during the November 2013 visit (id.). On March 31, 2014, Plaintiff stated that the
medication had relieved her neck and arm pain, the pain in her lower back had improved, but the
pain in her upper back pain was more severe (id. at 889, 890). Plaintiff reported tension in her
neck and upper back during a visit to Dr. DeVries on April 25, 2014 (id. at 872-74). On June 2,
2014, Plaintiff complained to Dr. Yurfest of moderate pain in her upper and lower back and neck
due to a fall, but reported that medication relieved her neck pain without side effects (id. at 891,
892). She underwent osteopathic manipulation of her neck and back on March 31 and June 2,
2014 (id. at 890, 892).
On June 5, 2014, Stephen D. Tosk, D.C. of Berkshire Chiropractic Services, P.C. noted
Plaintiff's diagnosis: "myofascial pain syndrome; chronic cervical, lumbar and thoracic
strain/sprain; cephalgia" (id. at 896). She was treated five times between June 5 and June 16,
2014 without change in her condition (id.). According to the note, "[s]he apparently selfdischarged . . . ." (id.).
Carpal Tunnel Syndrome ("CTS")
Dr. Yurfest and Berkshire Hand Therapy, P.C. ("BHT") treated Plaintiff's bilateral CTS
(id. at 579). Dr. Yurfest's record of May 2013 indicates Plaintiff's hand numbness had improved
due to therapy (id. at 783). On July 24, 2013, however, Dr. Yurfest noted that Plaintiff's hand
numbness had increased (id. at 780-81). He prescribed bilateral hand splints and therapy (id. at
580, 581, 823). On July 30, 2013, Plaintiff told the BHT therapist, "'[T]he splints are a savior'"
(id. at 585). In August 2013, Plaintiff reported less pain and the ability to pick up and handle
water bottles and glasses and grasp and hold small objects (id. at 592). However, she could not
lift heavy objects (id.). BHT's progress report of October 21, 2013 noted that pain and
paresthesias had improved, but were not resolved, and range of motion and strength were
improved (id. at 824). In November 2013, Plaintiff told Dr. Yurfest that the numbness had
decreased and her hand strength had improved, but she continued to feel pain (id. at 887).
Plaintiff showed fifty-percent improvement in March 2014 (id. at 889-90). However, Plaintiff's
CTS was more severe in June 2014 when she complained of tingling and numbness after she
moved "a lot" of boxes (id. at 891-92). Nerve conduction and EMG studies of September 24,
2014 showed severe nerve compression neuropathy of both wrists (id. at 901).
In June 2013, Plaintiff was diagnosed with mild obstructive sleep apnea syndrome and
was prescribed a CPAP machine (id. at 774, 791). In April 2014, Plaintiff reported that the
CPAP machine helped her sleep and she felt more alert during the day (id. at 851, 872, 875).
Consultative Examination and State Agency Evaluations
Kautilya Puri, M.D.
The Division of Disability Determination referred Plaintiff to Kautilya Puri, M.D. for an
internal medicine consultative examination, which was conducted on December 4, 2013 (id. at
816). Plaintiff reported that she could do some cooking, cleaning, and shopping and was able to
shower and bathe, dress, watch TV, and "go out" (id. at 817).
Dr. Puri noted that Plaintiff was obese (id. at 817). Her gait and stance were normal and
she walked without an assistive device (id.). Dr. Puri observed Plaintiff stand on her heels and
toes, get on and off the examination table without assistance, and rise from a chair without
difficulty (id.). Her ability to squat was mildly decreased (id.).
An examination of Plaintiff's cervical spine showed "decreased flexion and extension,
lateral flexion 35 degrees, and rotary movement 65 degrees with local tenderness" (id. at 818).
Her thoracic spine was normal (id.). Her lumbar spine showed "decreased flexion and extension
70 degrees, and lateral and rotary movements 10 degrees with mild local tenderness" (id.). She
had full bilateral range of motion of her shoulders, elbows, forearms, wrists, hips, knees, and
ankles (id.). There was mild tenderness in Plaintiff's ankle and knee with negative Tinel's sign
(id.). 3 Plaintiff's strength in her upper and lower extremities was 5/5 bilaterally, her hand and
finger dexterity were intact, and her grip strength was 5/5 bilaterally (id.).
Dr. Puri determined that Plaintiff did not have any "objective limitations to
communication or fine motor/gross motor activities" (id. at 819). He recommended that she not
be in an environment that exacerbated her asthma (id.). He further recommended restricting
repetitive movements and working from heights and with heavy machinery (id.). Dr. Puri
indicated that Plaintiff should not be allowed to drive (id.).
K. Malin Weeratne, M.D.
On April 10, 2013, based on an examination of Plaintiff's medical records, K. Malin
Weeratne, M.D., a state agency examiner, determined that she was not disabled because she did
not have a physical impairment that was expected to last twelve months (id. at 103, 108).
Lynne Charland, M.S./C.C.C.-S.L.P.
On October 17, 2013, Lynne Charland, a speech-language pathologist who reviewed
Plaintiff's treatment records, concluded that although Plaintiff had communicative limitations,
she was "capable of producing speech that can be heard, understood or sustained" (id. at 124).
The reports indicated that Plaintiff was intelligible, notwithstanding her occasional stuttering
(id.). Ms. Charland indicated that Plaintiff would be most successful at jobs that did not require
"Tinel's sign is a sign that a nerve is irritated." Keith v. Colvin, Case No. 15-1091-SAC, 2016
WL 1715454, at *2 (D. Kan. Apr. 29, 2016).
her to use the telephone or to deal with the public in a fast-paced environment (id.; see also id. at
Birendra Sinha, M.D.
Birendra Sinha, M.D., a state agency examiner, conducted a medical assessment of
Plaintiff's condition on December 11, 2013 (id. at 127). Dr. Sinha determined that Plaintiff could
occasionally lift or carry 20 pounds and frequently lift 10 pounds, stand and/or walk with normal
breaks for about six hours in an eight hour work day, sit for about six hours in an eight hour
work day, and push and/or pull without limitation (id. at 124-25). Dr. Sinha further opined that
Plaintiff was able to frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl,
but could never climb ladders, ropes, or scaffolds (id. at 125). According to Dr. Sinha, Plaintiff's
gross manipulation ability with both hands was limited and she should avoid repetitive
movements due to CTS (id. at 125-26). Dr. Sinha concluded that Plaintiff must avoid
concentrated exposure to fumes, odors, dusts, gases, and poor ventilation, and all hazards, such
as machinery and heights (id. at 126).
On October 23, 2012, Plaintiff sought treatment from Clinical and Support Options
("CSO") for anxiety, which was interfering with her ability to concentrate, complete tasks, and
sleep (id. at 331, 332, 338, 340). Plaintiff indicated that she was a domestic violence victim,
suffered from arthritis due to a 2010 motor vehicle accident, and had a history of mood swings
when she failed to take her prescribed medication (id. at 331, 340). CSO conducted a mental
status assessment on that date and observed that Plaintiff was physically unkempt,
nervous/anxious, restless, and "often responded with inappropriate laughter" (id. at 336). Her
eye contact, mood, perception, thought content and process, intellectual functioning, orientation,
memory, insight, and judgment were within normal limits (id.). She was diagnosed with anxiety
disorder NOS with PTSD to be ruled out and was assigned a Global Assessment of Functioning
("GAF") score of 50 (id. at 341). 4
Plaintiff participated in therapy at CSO from November 2012 to September 2014 (id. at
854-865, 903-1087). She also received outreach services from CSO's family support program
until May 2014 (id.). In 2012 and 2013, she concentrated on reducing her anxiety and
depression and becoming more organized (see, e.g., id. at 912, 913, 916, 932, 933). Her mood
and affect were normal during a visit to BMC's emergency department in May 2013 (id. at 797).
In June 2013, she reported to CSO personnel that she felt "more positive" and she began
organizing the contents of her house the next month (id. at 930, 932). In September 2013,
Plaintiff focused on cleaning her home to avoid being reported to the Department of Children
and Families ("DCF") (id. at 937, 941). Plaintiff was "cooperative, appropriate, and mostly
engaged" during a CSO session on September 13, 2013 (id. at 942). In November 2013, her
CSO family service worker twice took her to the gym for exercise (id. at 964, 967). She felt
"hopeful," and was more "engaged and animated" in November and December 2013 (id. at 970,
The GAF "scale is used to rate a patient's 'overall psychological functioning.'" Lopez-Lopez v.
Colvin, 138 F. Supp. 3d 96, 98 n.4 (D. Mass.), on reconsideration in part, 144 F. Supp. 3d 260
(D. Mass. 2015) (quoting American Psychiatric Institute, Diagnostic & Statistical Manual of
Mental Disorders ("DSM–IV") 32 (4th ed. 1994)). "The scale goes from '1,' indicating that the
patient has a 'persistent danger of severely hurting self or others,' to '100,' indicating 'superior
functioning.'" Id. (quoting DSM-IV at 32). A GAF score of 41-50 indicates: "Serious
symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational, or school functioning (e.g., no friends, unable to
keep a job)." DSM-IV at 34.
Plaintiff underwent an initial psychiatry consult on November 18, 2013 at Family
Practice Associates (id. at 867). The rate, volume, and tone of her speech were normal and her
mood was "OK" (id. at 868). Plaintiff became tearful when discussing disappointment and was
anxious at times (id.). She presented as having depression and anxiety and a change in
medication was recommended (id.).
Jeff Doshier, M.D. of Central Berkshire Psychiatric Services evaluated Plaintiff on
January 21, 2014 for treatment recommendations (id. at 826-833). She presented as anxious and
with "poor confidence/esteem" (id. at 829). She was dressed appropriately, displayed adequate
grooming and hygiene, was cooperative and alert, and made good eye contact (id. at 829). Her
psychomotor activity and speech were normal (id.). Her thought process was goal directed,
organized, and logical and her thought content was normal and future oriented (id.). Her insight,
judgment, attention, and language ability were intact and she was oriented x 4 (id.). She had an
average fund of knowledge (id.). Plaintiff's gait, muscle strength, and muscle tone were within
normal limits (id.). Dr. Doshier diagnosed Plaintiff as having PTSD, major depressive disorder,
ADHD without hyperactivity, and other specific learning difficulties (id. at 831). He assigned a
GAF score of 45 (id.). 5 Dr. Doshier prescribed medication including Concerta, Celexa, Zoloft,
and Atavan, but directed Plaintiff to reduce the dosage of Celexa and discontinue it after seven
days (id. at 832).
Plaintiff saw Dr. Doshier on February 5, 2014, March 5, 2014, and April 10, 2014 (id. at
834, 839, 845). Plaintiff's examination results, diagnoses, and GAF scores were mostly the same
A GAF score of 41-50 indicates: "Serious symptoms (e.g. suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job)." DSM-IV at 34.
as they were in January (id. at 835, 837, 840-41, 842, 846, 848). However, Dr. Doshier noted
that her mood was euthymic during the February, March, and April visits (id. at 835, 840, 846). 6
Dr. Doshier increased her dosage of Concerta on February 5, 2014 (id. at 838). At the next visit
on March 5, 2014, Plaintiff reported experiencing more frequent panic attacks (id. at 839).
Consequently, Dr. Doshier discontinued Concerta and prescribed Wellbutrin (id. at 844). On
April 10, 2014, Dr. Doshier increased Plaintiff's dosage of Wellbutrin because she exhibited
"multiple depressive symptoms" (id. at 845, 848, 849).
From February through June, 2014 CSO's records show that Plaintiff experienced more
frequent bouts of anxiety and depression, although there were times when she was less anxious
(see, e.g., id. at 1002, 1004, 1010, 1011, 1016, 1018, 1020, 1029, 1040, 1042). Plaintiff's annual
assessment by Sheryll Ellery, LMHC, on April 7, 2014 indicated that Plaintiff presented as
depressed (id. at 855). Ms. Ellery diagnosed anxiety disorder NOS (id. at 856). On April 18,
2014, Plaintiff made good eye contact throughout her interview with Caroline Weisberger, CNS,
she was "tearful at times and suddenly laughing at appropriate content," spoke clearly, and had
no suicidal ideation or thought disorders (id. at 865). Ms. Weisberger diagnosed Plaintiff with
mood disorder NOS and with PTSD and major depressive disorder to be ruled out (id.). She
noted that Plaintiff was being treated "with high-dose antidepressants" (id.). On April 18, 2014,
Katherine I. Keating, M.D. noted that Plaintiff's mood, affect, attention span, and concentration
were normal during a visit to Family Practice Associates, LLP for injuries Plaintiff sustained
after she fell on the ice (id. at 869, 870).
"Euthymic . . . is defined as 'joyfulness; mental peace and tranquility.'" Whitzell v. Astrue, 792
F. Supp. 2d 143, 147 (D. Mass. 2011) (quoting Stedman's Medical Dictionary 678 (28th ed.
When Plaintiff's authorization for CSO's family support program ended on May 12, 2014,
she had accessed community resources to assist with her disability and obtained a CPAP
machine for her sleep apnea (id. at 1053). However, she had not achieved her goal of
consistently being organized (id.).
Dr. DeVries' Opinion
On May 2, 2013, Dr. DeVries filled out a "Nervous Condition" questionnaire (id. at 518).
She diagnosed anxiety/depression, which had improved with the medications Sertraline and
Lorazepam (id.). By check marks, Dr. DeVries indicated that Plaintiff was attentive to personal
appearance, got along adequately with other people, could cope with routine stress, and could
handle monthly benefit payments, but was not able to travel independently in public, had
memory, concentration, or attention deficits, and had experienced a "significant" deterioration"
in her "habits, interests, relationships or daily activities" (id.). Dr. DeVries reported that Plaintiff
had "neurologic deficits of recent onset which have caused inability to work from [November 14,
2012] to present" (id.).
Consultative Examinations and State Agency Evaluations
Margaret Stephenson, Ph.D.
Margaret Stephenson, Ph.D. evaluated Plaintiff on June 21, 2013 (id. at 521). Plaintiff
was appropriately dressed and groomed, appeared overwhelmed and disorganized, and stuttered
when she spoke (id. at 523). She was oriented to person, place, date, and time (id.). On the
attention and abstract reasoning subscales of the Cognistat examination, she scored in the mild to
moderate impairment range (id.). She scored in the mild impairment range on the calculations
subscale and in the average range on the language, comprehension, repetition, naming, and
judgment reasoning subscales (id.). On the Wechsler Memory Scale-IV ("WMS-IV"), Plaintiff
scored in the extremely impaired range on the first five subtests Dr. Stephenson administered
(Logical Memory I, Logical Memory II, Visual Reproduction I, Visual Reproduction II, and
Spatial Addition) (id.). Because Plaintiff's performance was at odds with her presentation, Dr.
Stephenson remarked that her performance was inconsistent with her functioning level, reminded
her that "sabotaging" the test was not likely to assist her case, and "encouraged her to do her
best" (id.). Thereafter, Plaintiff received "very high scores on all remaining subtests of the
WMS-IV" (id.). Based on Plaintiff's valid scores on the second half of the WMS-IV, Dr.
Stephenson estimated her scores to be in the average to high average range on all indices (id. at
524). Plaintiff scored in the high average range on the copy phase of the Bender Gestalt test and
in the low average range on the recall phase (id.). These results showed "good integration of
perceptual and motor processing and adequate capacity for encoding, storing, and retrieving
information from memory" (id.) She scored in the low average range of the Trailmaking Test,
demonstrating no impairments (id.). Dr. Stephenson made the following diagnosis: depressive
disorder NOS, panic disorder with agoraphobia, and ADD (id.). She assigned a GAF score of 55
Dr. Stephenson reevaluated Plaintiff on November 8, 2013 (id. at 810). Her Cognistat
profile showed "no impairment in orientation, attention, language[,] calculations, or reasoning"
(id. at 812). Dr. Stephenson opined that Plaintiff was capable of understanding and following
directions, maintaining adequate attention and concentration, making appropriate decisions, and
getting along with others (id.). Plaintiff was again diagnosed with depressive disorder NOS and
A GAF score of 51-60 indicates: "Moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers)." DSM-IV at 34.
ADD and her GAF score remained at 55 (id.). Dr. Stephenson changed her diagnosis of panic
disorder to "without agoraphobia" (id.).
Joseph A. Whitehorn, Ph.D.
Joseph A. Whitehorn, Ph.D., a state agency consultant, evaluated Plaintiff's records on
July 22, 2013 (id. at 104). Dr. Whitehorn determined that Plaintiff had mild restrictions of daily
living activities, mild difficulties in maintaining social functioning, moderate difficulties
maintaining concentration, persistence, or pace, and no repeated episodes of decompensation of
extended duration (id.). Dr. Whitehorn opined that Plaintiff could remember and understand
simple tasks, could sustain pace and focus on simple tasks for two hour periods during a work
day, and could handle changes in simple work routines (id. at 106-107). He determined that she
was not disabled (id. at 108).
Jon Perlman, Ed. D.
Jon Perlman, Ed. D. performed a state agency reevaluation on November 21, 2013 (id. at
128). His opinions mirrored Dr. Whitehorn's (id. at 122, 127-28, 130).
In March 2013, Plaintiff reported that she got up each morning, showered, and set out her
medications so that she would remember to take them (id. at 230). She did not note any
problems with personal care and did not need reminders to take care of her personal needs and
grooming, but required reminders to take medication (id. at 231-32). She supervised two of her
children as they got ready for school (id. at 231). She was able to do laundry every day as well
as light cleaning (id. at 232). Her children helped her prepare meals (id. at 231). Because she
was not able to drive after the November 2012 accident, she walked, rode in a car, or used public
transportation when she went out (id. at 230, 233). She shopped in stores, by mail, and on-line
(id.). She enjoyed cake decorating, making candy, and playing on-line games, which she did
daily (id. at 234). She spent time with other people, although she did not attend many functions
(id.). Plaintiff noted that her condition affected her ability to lift, walk, talk (stutter), remember,
complete tasks, concentrate, comprehend, and follow instructions (id. at 235, 237). She mostly
complained of memory deficits (id. at 230, 232, 234, 235, 237).
Plaintiff completed another function report in October 2013 (id. at 279). She reported
that she usually stayed in bed until late morning (id. at 272) She indicated that she attempted to
do laundry and housework, but was easily distracted and was unable to finish tasks (id. at 272,
274). She cooked meals for her family about twice a week (id. at 273, 274). She washed the
dishes, went grocery shopping, and could walk about three blocks before stopping to rest (id. at
274, 277). She used the computer to play games and to communicate with others (id. at 276). In
addition to the deficits that Plaintiff noted in March, she indicated that her condition affected her
ability to squat, stand, reach, climb stairs, use her hands, and get along with others, although she
had "no problems" with authority figures (id. at 277-78). She stated that she was able to follow
written and spoken instructions with "constant reminders" and "re-direction" (id. at 277).
Plaintiff's friend's function report indicated that she and Plaintiff talked on the phone
every day and that Plaintiff went outside "almost every day" (id. at 250, 253, 254).
The ALJ Hearing
Plaintiff and VE James Parker testified before the ALJ on October 16, 2014 (id. at 35).
Before Plaintiff was involved in a motor vehicle accident in November 2012, she worked as a
substitute day care provider and as a certified nurse assistant ("CNA") at the Springside Nursing
Home (id. at 48-49, 54-55). Plaintiff explained to the ALJ that she was unable to work at the
time of the hearing due to her back and head, which bothered her "sometimes," sleep apnea, and
depression (id. at 49). Although she stuttered and had difficulty with balance after the accident,
she reported to the ALJ that these conditions had improved (id. at 55).
Plaintiff received an "adult [high school] diploma" through an adult learning center and
attended Berkshire Community College ("BCC") for about five years beginning in 2005, taking
early childhood education classes (id. at 45-46, 52). According to Plaintiff, she got "kicked out"
because she was unable to get passing grades or complete her courses (id. at 46).
In 2010, Plaintiff injured her neck and right shoulder in a motor vehicle accident (id. at
52-53). She was unable to use her right arm (id. at 59). Although she was out of work for "a
while," she resumed her work as a CNA at the Mt. Greylock Extended Care Facility, but needed
assistance transferring patients (id. at 53-54, 56). Plaintiff indicated that she lost her job on the
day shift because she was "too slow" (id. at 57).
Plaintiff testified that because therapy had improved the condition of her shoulder, arms,
and hands by January 2014, she enrolled in massage therapy courses (id. at 47, 60, 75). She told
the ALJ that, when she enrolled in the program, she did not know "what [a massage] was" and
did not realize that it would involve intensive use of her hands (id. at 62-63). She thought a
massage therapist pushed buttons on a chair (id. at 62). She was attending classes at the time of
the hearing, but thought she might have to withdraw because she was scheduled to have surgery
for CTS, which had become severe over the past few months (id. at 47, 61, 75). She was
experiencing constant pain and numbness in her hands and had difficulty holding objects (id. at
66). According to Plaintiff, she "probably" could have worked assembling small parts in January
2014 when she began massage therapy classes and could have worked until "a couple months
ago when [her] hands got bad again" (id. at 75-77).
Plaintiff indicated that she was unable to attend classes on time due to depression (id. at
67, 68, 79). She had stayed in bed for about a week during the month before the hearing (id. at
Plaintiff lived with her four children, ages 11, 15, 18, and 20, and her oldest daughter's
boyfriend (id. at 44). She indicated that she was unable to do much at home (id. at 74-75). A
CSO counselor helped her clean the kitchen where mold was growing on the dirty dishes (id. at
74). She attended her daughter's individual education plan ("IEP") meeting at her school and
understood the IEP (id. at 79-80).
The ALJ posed the following hypothetical to VE Parker, asking whether the person could
perform either Plaintiff's past work or any other work:
Assume [a person with Plaintiff's age, education and past work experience with] the
ability to perform a range of light work as further specified or modified. Assume an
ability to lift/carry 20 pounds occasionally, 10 pounds frequently. Assume an ability to
stand and/or walk six hours of an eight hour day. The ability to sit six hours of an eight
hour day. Assume an occasional ability to balance, stoop, kneel, crouch, crawl, . . . and
climb ramps and stairs. Never able to climb ladders, ropes, and scaffolds. Further
assume must avoid concentrated exposure to pulmonary irritants such as fumes, odors,
dust, and gases. Must avoid concentrated exposure to hazardous conditions such as
unprotected heights, and dangerous machinery. Further assume work must consist of
unskilled tasks, work with simple work related decisions with few workplace changes.
(id. at 85). The VE testified that the hypothetical individual could not perform Plaintiff's past
work, but could perform the following unskilled jobs, which existed in the national and regional
economies: laundry folder and sorter; housekeeper/cleaner, who would empty wastebaskets and
do light dusting; and flower care worker in a greenhouse or flower shop (id. at 85-86). These
jobs required frequent or unlimited bilateral handling (id. at 86-87). However, the listed jobs
would not be available for a person who was limited to occasional bilateral handling (id. at 87).
No jobs were available for a person with the described limitations who was off task twenty per-
cent of the work day in addition to scheduled breaks, or was absent three days per month (id. at
The ALJ's Decision
In order to qualify for DIB, a claimant must demonstrate that she was disabled within the
meaning of the Social Security Act (the "Act") prior to the expiration of her insured status. See
42 U.S.C. § 423(a)(1)(A), (D). Plaintiff's insured status is not challenged. "The only question is
whether the ALJ had substantial evidence with which to conclude that Plaintiff did not suffer
from a disability." Bitsacos v. Barnhart, 353 F. Supp. 2d 161, 165-66 (D. Mass. 2005).
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 12 months." 42 U.S.C. § 423(d)(1)(A). An individual is considered disabled
under the Act
only if [her] physical or mental impairment or impairments are of such severity that [s]he
is not only unable to do [her] previous work but cannot, considering [her] 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 [her], or whether [s]he
would be hired if [s]he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). See generally Bowen v. Yuckert, 482 U.S. 137, 146–
In determining whether Plaintiff was disabled, the ALJ conducted the five-part analysis
required by the regulations. See 20 C.F.R. § 404.1520(a); see also Goodermote v. Sec'y of
Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982) (describing the five-step process). The
claimant has the burden of proof through step four of the analysis. See Goodermote, 690 F.2d at
7. At step five, the Commissioner has the burden of showing the existence of jobs in the national
economy that the claimant can perform notwithstanding impairment(s). See id. If a 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. See 20 C.F.R. § 404.1520(a)(4).
At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date of November 14, 2012 (A.R. at 15). See 20 C.F.R. §
404.1571 et seq. At step two, the ALJ found that Plaintiff was severely impaired due to
"obstructive sleep apnea, degenerative disc disease, nervous system injury/organic brain disorder
(parieto-occipital encephalomalacia), anxiety disorder, affective disorder, [and] carpal tunnel
syndrome" (A.R. at 15). See 20 C.F.R. § 404.1520(c). The ALJ found that Plaintiff's asthma and
"speech problems" were not severe impairments (A.R. at 15). Citing Dr. DeVries' July 2013
record, the ALJ noted that Plaintiff's stuttering began to improve "significantly" less than twelve
months after the November 2012 accident (id.). For purposes of step three, Plaintiff's
impairments, either alone 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 15-16).
Before proceeding to steps four and five, the ALJ assessed Plaintiff's RFC for use at step
four to determine whether Plaintiff could do past relevant work and, if the analysis continued to
step five, to determine if Plaintiff could do other work. See 20 C.F.R. § 404.1520(a)(4)(iv).
"The 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 work-related
physical and mental activities." Social Security Regulation ("SSR") 96-8p, 1996 WL 374187, at
*2 (July 2, 1996). Put another way, "[a]n individual's RFC is defined as 'the most you can still
do despite your limitations.'" Dias v. Colvin, 52 F. Supp. 3d 270, 278 (D. Mass. 2014) (quoting
20 C.F.R. § 416.945(a)(1)).
The ALJ determined that Plaintiff had the RFC to perform light work, 8 with the
[She could] occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs.
She could never climb ladders, ropes, or scaffolds. She had to avoid concentrated
exposure to pulmonary irritants such as fumes, odors, dusts, and gases. She had to avoid
concentrated exposure to hazards such as unprotected heights and dangerous machinery.
Work had to consist of unskilled tasks . . . with simple work-related decisions with few
(A.R. at 16).
At step four, the ALJ found that Plaintiff was unable to perform her past relevant work
(id. at 25). See 20 C.F.R. § 404.1565. However, considering Plaintiff's age, education, work
experience, and RFC, Plaintiff could perform the following jobs that existed in the national and
regional economies: laundry sorter/folder; housekeeper/cleaner; and flower care worker (A.R. at
The Social Security Administration ("SSA") defines light work as work that "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 or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of performing a full
or wide range of light work, [a claimant] must have the ability to do substantially all of these
activities. If someone can do light work, [the SSA] determine[s] that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time." 20 C.F.R. § 404.1567(b).
Sedentary work "involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a).
26). See 20 C.F.R. §§ 404.1569, 404.1569a. Consequently, the ALJ concluded that Plaintiff was
not disabled prior to June 24, 2014 (A.R. at 26-27).
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 a rehearing. See 42 U.S.C. §§
405(g), 1383(c)(3). 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. See 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)).
"Complainants face a difficult battle in challenging the Commissioner's determination because,
under the substantial evidence standard, the [c]ourt must uphold the Commissioner's
determination, 'even if the record arguably could justify a different conclusion, so long as it is
supported by substantial evidence.'" Amaral v. Comm'r of Soc. Sec., 797 F. Supp. 2d 154, 159
(D. Mass. 2010) (quoting Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3
(1st Cir. 1987)). 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. See Irlanda Ortiz, 955 F.2d at 769.
That said, the Commissioner may not ignore evidence, misapply the law, or judge matters
entrusted to experts. See Nguyen, 172 F.3d at 35.
Plaintiff alleges that the ALJ made four errors in his denial of DIB: (1) he erred by
finding, at step two, that Plaintiff's mental impairments and CTS were not severe; (2) he erred by
discounting Plaintiff's credibility; (3) he failed to afford portions of the VE's testimony
appropriate weight; and (4) he failed to give Dr. DeVries' opinion controlling weight (Dkt. No.
17). Each of Plaintiff's objections will be discussed in turn.
At step two, the ALJ found that Plaintiff's mental impairments and CTS
were severe and to the extent they caused functional limitations, he
incorporated them into Plaintiff's RFC.
Plaintiff complains that the ALJ found that "she did not have a severe mental
impairment" and that her "hand impairment" was not severe (Dkt. No. 17 at 8-9). At step two of
the sequential evaluation process, however, the ALJ found Plaintiff's "anxiety disorder [and]
affective disorder" and carpal tunnel syndrome were severe (A.R. at 15). "Carpal tunnel
syndrome is defined as 'a complex of symptoms resulting from compression of the median nerve
in the carpal tunnel, with pain and burning or tingling paresthesias in the fingers and hand,
sometimes extending to the elbow.'" Forni v. Barnhart, Civil No. 05-cv-406-PB, 2006 WL
2956293, at *1 (D.N.H. Oct. 17, 2006) (quoting Dorland's Illustrated Medical Dictionary 1812
(28th ed. 1994)). The ALJ considered these conditions when he formulated her RFC prior to
Plaintiff's contention regarding depression may be based on semantics. The ALJ used the
term "affective disorder" to describe depression, which was included as an "Affective Disorder"
in Listing 12.04 of 20 C.F.R. Part 404, Subpart P, Appendix 1. See MacNeil v. Astrue, 908 F.
Supp. 2d 259, 263 (D. Mass. 2012) (at step two, the ALJ found that Plaintiff's depression was a
severe impairment, and, at step three, he concluded that Plaintiff's depression did not meet or
medically equal one of the "'Affective Disorders'" in Listing 12.04 of 20 C.F.R. Part 404,
Subpart P, Appendix 1); Brown v. Sec'y of Health & Human Servs., 740 F. Supp. 28, 34 (D.
Mass. 1990) ("The plaintiff's depression is properly considered under subsection 12.04, affective
Because the ALJ found that Plaintiff's mental impairments were severe, he assessed
Plaintiff's mental RFC, as required by 20 C.F.R. § 404.1520a, and included limitations based on
her recognized impairments. See 20 C.F.R. § 404.1520a. The ALJ's RFC determination was
based "primarily" on the opinions of the state agency reviewers, but he also considered Dr.
Stephenson's assessment, and Plaintiff's report of her daily living activities, both of which
supported the state agency examiners' opinions (A.R. at 24). The state agency consultants
determined that Plaintiff could remember and understand simple tasks, could "sustain pace and
focus on simple tasks for two hour periods during a work day," and could "handle changes in
simple work routines" (id. at 106-07, 127-28, 130). Dr. Stephenson opined that Plaintiff was
"capable of understanding and following directions, maintaining adequate attention and
concentration, making appropriate decisions, and getting along with others" (id. at 812).
These opinions were borne out by Plaintiff's testimony and reports of daily activities.
She indicated that she was a single mother with four children who began training to work as a
massage therapist in January 2014 (id. at 44, 47, 60). In addition, she assisted two of her
children when they got ready for school, attended to her personal care needs without assistance,
did some laundry and housework, prepared meals, shopped, played computer games, and
socialized (id. at 75, 230-34, 272-74, 276, 817). See Bird v. Colvin, Civil Action No. 14-30108MGM, 2015 WL 5315196, at *7 (D. Mass. Sept. 11, 2015) ("An administrative law judge may
properly consider 'daily activities' when evaluating a claimant's symptoms.") (citing 20 C.F.R. §§
This evidence supported the limitations that the ALJ included in the RFC (A.R. at 16).
See Hayes v. Astrue, No. 2:10-cv-42-DBH, 2010 WL 5348757, at *2 (D. Me. Dec. 20, 2010),
adopted, Civil No. 10-42-P-H, 2011 WL 148583 (D. Me. Jan. 18, 2011). Plaintiff was limited to
performing light work, with the additional limitations of performing unskilled tasks, making
simple work-related decisions, and adapting to few workplace changes (A.R. at 16). "The
commissioner has defined competitive, remunerative 'unskilled work' as generally entailing the
ability to (i) understand, remember, and carry out simple instructions, (ii) make simple workrelated decisions, (iii) respond appropriately to supervision, coworkers, and usual work
situations, and (iv) deal with routine changes in a routine work setting." Hayes, 2010 WL
5348757, at *3. The state agency consultants' opinions and other sources' records supported the
ALJ's determination that Plaintiff was capable of functioning at this level. Consequently, the
RFC adequately reflected Plaintiff's mental impairments.
Although the ALJ found that Plaintiff's CTS was a severe impairment at step two, he did
not incorporate any manipulative restrictions into the RFC (A.R. at 16). "[T]he mere finding that
a particular impairment is severe at Step 2 does not automatically correlate to any limitations on
work-related activities found to exist at Step 4." Abdi v. Astrue, No. 2:10–cv–89–GZS, 2010 WL
5452125, at *5 (D. Me. Dec. 28, 2010), aff'd by Civil No. 10-89-P-S, 2011 WL 240100 (D. Me.
Jan. 24, 2011)). The ALJ's determination is supported by the record.
In making the RFC determination, the ALJ, again, relied on Plaintiff's activities of daily
living, as discussed earlier, as well as the medical evidence provided by Dr. Yurfest and BHT
and Plaintiff's hearing testimony. Dr. Yurfest prescribed bilateral hand splints and therapy in
July 2014 (A.R. at 580, 581, 823). After Plaintiff received the bilateral hand splints, she
described them as "'a savior'" (id. at 585). By the following month, she reported less pain and
the capacity to pick up and handle water bottles and glasses and to grasp and hold small objects
(id. at 592). Plaintiff testified that because the condition of her hands had improved by January
2014, she went into debt to enroll in a massage therapy training program (id. at 24, 46-48, 60,
75). The ALJ reasonably inferred from this evidence and the nature of a massage therapist's
work that "she had a lot of ability to use her hands/arms" when she started the program (id. at
24). Significantly, Plaintiff told the ALJ that up until "a couple months" before the October 2014
hearing, she "probably" could have worked as a small parts assembler (id. at 47, 75-77). This
testimony is consistent with the September 24, 2014 nerve conduction and EMG studies showing
severe nerve compression neuropathy in both wrists and the ALJ's finding that Plaintiff was
disabled on June 24, 2014 (id. at 13, 901).
The ALJ addressed Dr. Sinha's and Dr. Puri's opinions that Plaintiff should not carry out
repetitive movements (id. at 24-25). These opinions were inconsistent with Plaintiff's reports of
her daily living activities and her testimony about training to become a massage therapist and
being able to assemble small parts (id. at 24, 47, 60, 75-77). The ALJ also noted that Dr. Puri's
opinion was inconsistent with his findings that Plaintiff had full range of motion in both wrists,
her strength was 5/5 bilaterally in her upper and lower extremities, her hand and finger dexterity
were intact, and her grip strength was 5/5 bilaterally (id. at 25, 818). See Kratman v. Barnhart,
436 F. Supp. 2d 300, 309 (D. Mass. 2006) ("The ALJ must resolve conflicts in the evidence
when he renders his decision.") (citing Irlanda Ortiz, 955 F.2d at 766–769).
Because substantial evidence warranted the ALJ in excluding limitations based on
Plaintiff's CTS from her RFC, the Plaintiff's contentions do not warrant disturbing the
The ALJ's credibility determination was supported by clear and
Plaintiff testified that she was unable to work due to back and neck pain, headaches, and
depression (A.R. at 23, 49-50). 9 The ALJ was required to follow a two-step process to evaluate
the intensity, persistence, and limiting effects of Plaintiff's pain and symptoms of depression. At
the first step, the ALJ found that Plaintiff had medically determinable physical and mental
impairments that could be expected to produce the symptoms associated with those impairments
(id. at 23). See SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). 10 Plaintiff challenges the
ALJ's second-step determination that her "statements concerning the intensity, persistence and
limiting effects of [her] symptoms are . . . somewhat credible prior to June 24, 2014, but not to
the extent alleged" (A.R. at 23-24). The court finds that there is substantial evidence to support
the ALJ's credibility determination.
Plaintiff also testified that she was unable to work because of CTS (A.R. at 23). The treatment
records and Plaintiff's daily living activities, which were previously discussed, contradict
Plaintiff's complaints of her condition's severity and support the ALJ's credibility determination
(id. at 23-24).
SSR 96-7p was superseded by SSR 16-3p on March 16, 2016. See SSR 16-3p, 2016 WL
1119029, at *1 (Mar. 16, 2016). SSR 16-3p "provid[es] revised guidance about the factors and
process by which an SSA adjudicator is instructed to evaluate claimant credibility." Lopez v.
Colvin, Case No. 15-cv-30200-KAR, 2017 WL 1217111, at *10 (D. Mass. Mar. 31, 2017). In
this case, the ALJ was guided by SSR 96-7p (A.R. at 16).
The ALJ considered the proper sources of information and factors as they related to the
evaluation of claimant's subjective complaints of pain and depression. See SSR 96-7p, 1996 WL
374186, at *3. "Proper considerations that may substantiate subjective complaints include: (1)
the claimant's daily activities, (2) the location, duration, frequency, and intensity of the medical
symptoms, (3) precipitating and aggravating factors, (4) the type, dosage, effectiveness and side
affects of any medication, and any other functional limitations and restrictions due to the
claimant's impairments." Cohen v. Massanari, No. CIV.A. 01-11084RWZ, 2002 WL 1424580,
at *3 (D. Mass. July 2, 2002), aff'd sub nom. Cohen v. Barnhart, 61 F. App'x 722 (1st Cir. 2003)
(citing Avery v. Sec'y of Health & Human Servs., 797 F.2d 19, 28-29 (1st Cir. 1986)). See also
SSR 16-3p, 2016 WL 1119029, at *7 (Mar. 16, 2016).
After considering these factors, "the ALJ was not required to [fully] credit [Plaintiff's]
testimony." Del Rosario v. Colvin, Civil Action No. 13-30017-DHH, 2014 WL 1338153, at *7
(D. Mass. Mar. 31, 2014) (citing Bianchi v. Sec'y of Health and Human Servs., 764 F.2d 44, 45
(1st Cir. 1985)). "When an ALJ decides not to credit a claimant's testimony, the ALJ must
articulate specific and adequate reasons for doing so, or the record must be obvious as to the
credibility finding." Howcroft v. Colvin, C.A. No. 15-201S, 2016 WL 3063858, at *9 (D.R.I.
Apr. 29, 2016), adopted, C.A. No. 15-201 S, 2016 WL 3072254 (D.R.I. May 31, 2016) (citing
DaRosa v. Sec'y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir. 1986)). "A reviewing
court will not disturb a clearly articulated credibility finding with substantial supporting evidence
in the record." Rosa v. Astrue, 783 F. Supp. 2d 179, 188 (D. Mass. 2011) (citing Frustaglia v.
Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987)). "An ALJ's determination as
to a claimant's credibility . . . is entitled to deference because it is the ALJ who observed the
claimant, evaluated [his] demeanor, and considered how that testimony fit in with the rest of the
evidence." Id. at 188-89. The ALJ articulated three significant reasons for discounting Plaintiff's
testimony regarding her claimed symptoms and impairments: (1) her testimony conflicted with
her description of her daily living activities; (2) her attempt to "sabotage" the results of the tests
Dr. Stephenson administered mitigated against her credibility; and (3) her accounts were
inconsistent with her records of treatment for neck and back pain, headaches, and depression
(A.R. at 24). Each of these findings will be addressed in turn.
First, the ALJ noted that Plaintiff's credibility was undermined by her engaging in the
daily living activities discussed earlier and training to work as a massage therapist (id.). 11 See
Teixeira v. Astrue, 755 F. Supp. 2d 340, 347 (D. Mass. 2010) ("While a claimant's performance
of household chores or the like ought not be equated to an ability to participate effectively in the
workforce, evidence of daily activities can be used to support a negative credibility finding.");
Allen v. Apfel, 54 F. Supp. 2d 1056, (D. Kan. 1999) (claimant's cosmetology training after the
onset of her alleged disability factored into the ALJ's credibility assessment). The ALJ
discredited Plaintiff's assertion that, when she enrolled in program, she believed massage therapy
was performed by pressing buttons and did not involve extensively using her hands (A.R. at 24,
62-63). Moreover, Plaintiff testified that she "probably" could have worked as a small parts
assembler until about June 2014 (id. at 75-77).
Second, the ALJ's skepticism of Plaintiff's description of the degree of her impairments
was buttressed by Dr. Stephenson's assessment that Plaintiff exaggerated her symptoms during
the June 2013 consultative examination (id. at 521, 523-24). See Jones v. Comm'r of Soc. Sec.,
Plaintiff argues that her decision to enroll in the massage therapy program "more likely reflects
deficits in executive functioning, not endorsement of an ability to perform massage at an SHA
level" (Dkt. No. 17 at 7). However, this assertion is speculation that is not supported by an
opinion or by other substantial evidence.
No. 94-3987, 1995 U.S. App. LEXIS 37984, at *7 (6th Cir. Nov. 8, 1995) (unpublished) (ALJ
was entitled to afford claimant's testimony less weight, due, in part, to "her apparent sabotage of
medical test results"); Escobar v. Colvin, Case No. 14cv02741-LAB(BGS), 2016 WL 354416, at
*13 (S.D. Cal. Jan. 4, 2016) (ALJ was entitled to discount claimant's credibility based on her
exaggeration of symptoms); Thompson v. Astrue, Civil Action No. 10-11742-JLT, 2012 WL
787367, at *8 (D. Mass. Feb. 17, 2012) (ALJ was entitled to reject opinions that were based on
claimant's "gross exaggeration of symptoms" and "flawed credibility"). Plaintiff's scores ranged
from mildly to extremely impaired on the initial Cognistat and WMS-IV tests (A.R. at 523).
After Dr. Stephenson noted that Plaintiff's performance was inconsistent with her level of
functioning, reminded her that "sabotaging her test would likely not help her case," and
encouraged her to "do her best," Plaintiff scored in the average ranges on the remaining
assessments (id. at 523-24). The test results demonstrated the adequacy of Plaintiff's memory
(id. at 524). Plaintiff's reevaluation in November 2013 produced similar results (id. at 812). Dr.
Stephenson opined that Plaintiff was capable of comprehending and following directions,
maintaining adequate attention and concentration, making appropriate decisions, and getting
along with others (id.). Her opinion was consistent with those of Plaintiff's other medical
sources (id. at 336, 515, 829, 835, 841, 846, 870).
The medical evidence is the third factor upon which the ALJ relied to assess Plaintiff's
credibility regarding the severity of her pain and depression (id. at 24). The substantial evidence
supporting the ALJ's finding that Plaintiff's physical pain and mental impairments were not
debilitating will be discussed separately.
Neck and back pain and headaches
The medical records of Plaintiff's neck and back treatments and Dr. Puri's assessment of
decreased flexion and extension of Plaintiff's cervical and lumbar spine support the ALJ's
negative credibility finding and, concomitantly, the RFC for light work (id. at 16, 22). The
November 2012 CT scan of Plaintiff's neck showed no evidence of acute traumatic lesion (id. at
363). Compare Cordero v. Colvin, Civil Action No. 10-12104-DJC, 2013 WL 5436970, at *16
(D. Mass. Sept. 25, 2013) ("The ALJ may rely on objective medical evidence that demonstrates
improvement in physical impairments to support his conclusion that complaints are not
credible.") (citing SSR 96–7p, 1996 WL 374186, at *6; 20 C.F.R. § 404.1529(c)(2)). Dr.
Yurfest's records show that medication relieved Plaintiff's neck pain (A.R. at 887, 889, 890). See
Avery, 797 F.2d at 29; Cookson v. Colvin, 111 F. Supp. 3d 142, 154 (D.R.I. 2015) (claimant's
pain's response to medication supported the ALJ's finding that claimant was not credible).
Plaintiff first complained of pain in her lower back in November 2013 and pain in her upper back
in March 2014 (A.R. at 887, 889, 890). Her lower back pain had improved by March 2014, and
she "self-discharged" after undergoing five chiropractic treatments in June 2014 (id. at 889, 896).
See SSR 96-7p, 1996 WL 374186, at *7. See also SSR 16-3p, 2016 WL 1119029, at *8 ("[I]f
the individual fails to follow prescribed treatment that might improve symptoms, [the
Commissioner] may find the alleged intensity and persistence of an individual's symptoms are
inconsistent with the overall evidence of record."). A fall in June 2014 exacerbated the pain in
her upper and lower back (A.R. at 891-92). The ALJ determined that she was disabled thereafter
(id. at 25).
The treatment records contradicted Plaintiff's testimony regarding the severity and
persistence of her headaches. An inner ear inflammation caused the "[t]hrobbing" headache that
brought her to the BMC emergency department in January 2013 (A.R. 391, 399, 402). In July
2013, she reported that her headaches were less frequent (id. at 791). See Lopez v. Colvin, Case
No. 15-cv-30200-KAR, 2017 WL 1217111, at *10 (D. Mass. Mar. 31, 2017) (ALJ is permitted
to weigh claimant's statements to medical providers in the credibility assessment). Plaintiff told
Dr. Vanderhorst that Excedrin relieved her migraine headaches (A.R. at 514). See Woods v.
Astrue, Civil Action No. 11-10112-RWZ, 2012 WL 2126893, at *10 (D. Mass. June 13, 2012)
(evidence that plaintiff's pain was well-controlled by medication undermined her credibility);
Echandy-Caraballo v. Astrue, No. CA 06-97 M, 2008 WL 910059, at *7-8 (D.R.I. Mar. 31,
2008) (upholding ALJ's credibility determination based, in part, on claimant's relief from overthe-counter medication); SSR 96-7p, 1996 WL 364186, at *3. After Plaintiff hit her head on ice
in April 2014, Dr. DeVries opined that she would return to her neurological baseline in three to
four weeks (A.R. at 874).
Plaintiff appears to dispute the weight the ALJ afforded her testimony regarding her
mental limitations (Dkt. No. 17 at 3-7). She points to her academic records, her therapy records,
and her medical records to support her claim that she suffered from a debilitating mental
impairment prior to June 24, 2014 (id.). Plaintiff's arguments, however, primarily focus on her
depression and evidence that conflicts with the evidence upon which the ALJ relied in making
his determination that Plaintiff was not disabled. "[J]ust because [plaintiff] suffers from
depression and anxiety simply does not mean, a fortiori, that she has 'any impairment or
combination of impairments which significantly limits [her] physical or mental ability to do
basic work activities.'" Torres v. Barnhart, 249 F. Supp. 2d 83, 97 (D. Mass. 2003) (citation
omitted). As discussed earlier, it is the ALJ's function, not the court's, to resolve conflicts in the
evidence. See Arrington v. Colvin, 216 F. Supp. 3d 217, 236 (D. Mass. 2016), appeal docketed
sub nom. Arrington v. Berryhill, No. 17-1047 (1st Cir. Jan. 10, 2017).
Plaintiff places great emphasis on her academic record as supporting her claim of
disability (Dkt. No. 17 at 4, 6). The Commissioner correctly points out that Plaintiff's grades
from the adult learning center where she obtained her high school equivalency diploma in 2004,
the neuropsychological test results from 2006, and her grades from the BCC courses that she
took from 1998 to spring 2012 were not relevant to the determination of whether she was
disabled on November 14, 2012, her alleged date of disability onset, especially given that she
was employed as a CNA until the onset date (Dkt. No. 19 at 15; A.R. at 224, 330, 775).
Compare Dearborn v. Colvin, Civil Action No. 14-30019-MGM, 2015 WL 1321476, at *5 (D.
Mass. Mar. 24, 2015) (ALJ did not err in failing to consider an evaluation that was six years old
because it was irrelevant); Cruz–Guadalupe v. Comm'r. of Social Sec., Civil No. 08–1475 (JAF),
2009 WL 2871154 at *3 (D.P.R. Sept.1, 2009) (holding that evidence falling outside the relevant
time period should not be considered). The fact that the ALJ did not mention Plaintiff's more
recent BCC and Mildred Elley records does not mean that he failed to consider them. See
N.L.R.B. v. Beverly Enters. - Mass., Inc., 174 F.3d 13, 26 (1st Cir. 1999) ("[a]n ALJ can consider
all the evidence without directly addressing in his written decision every piece of evidence
submitted by a party."); Menge v. Berryhill, C.A. No. 16-85S, 2017 WL 3278955, at *5 (D.R.I.
May 26, 2017), adopted, C.A. No. 16-085 S, 2017 WL 3278863 (D.R.I. Aug. 1, 2017) ("Courts
emphasize that the ALJ is not required to discuss each piece of evidence in the record and that no
mention of such evidence should be interpreted to mean that it was afforded no weight."). The
ALJ stated that he considered "the entire record" (A.R. at 16). See id. Moreover, although
Plaintiff withdrew or failed some courses at BCC, she also received grades that ranged from A to
C, with the most recent grade being a B (A.R. at 775). Her Mildred Elley GPA was 70.95 on
June 16, 2014 and the first reported absence was on May 30, 2014 (id. at 1091, 1094). The ALJ
found Plaintiff was disabled on June 24, 2014 (id. at 16).
Plaintiff's claim that the ALJ ignored her CSO therapy records is unfounded. Despite
Plaintiff's contrary contention, the ALJ considered CSO's October 23, 2012 assessment and
diagnosis of Plaintiff (Dkt. No. 17 at 5; A.R. at 17). The CSO evaluator indicated that Plaintiff's
mood, perception, thought content and process, intellectual functioning, and memory were
within normal limits (A.R. at 336). The diagnosis was anxiety disorder and "rule out PTSD"
with a GAF score of 50 (id. at 341). See Torres, 249 F. Supp. 2d at 97. Although GAF scores
"have recently fallen into disfavor as an assessment tool," the Commissioner continues "to
receive and consider GAF scores just as it would other opinion evidence, but scores must have
supporting evidence to be given significant weight." Bourinot v. Colvin, 95 F. Supp. 3d 161, 178
(D. Mass. 2015). GAF scores in the 41—50 range indicate "'serious impairment in social,
occupational, or school functioning.'" Morey v. Colvin, C.A. No. 14-433M, 2015 WL 9855873,
at *2 n.2 (D.R.I. Oct. 5, 2015), adopted, C.A. No. 14-433-M-PSA, 2016 WL 224104 (D.R.I. Jan.
19, 2016) (citation omitted). In 2013, however, her GAF scores were 55 indicating "moderate
symptoms or difficulty in functioning" (A.R. at 524, 812). Martinez v. Colvin, Civil Action No.
13-30124-KPN, 2014 WL 3735889, at *3 n.1 (D. Mass. July 11, 2014) (citing DSM-IV at 34).
Plaintiff's CSO treatment records show that Plaintiff's focus had improved in November and
December 2013 and she was concentrating on her studies in February 2014 (A.R. at 970, 976,
1010). The ALJ also considered the April 2014 observations and diagnoses by Ms. Ellery and
Ms. Weisberger of CSO (id. at 23). Ms. Ellery reported that Plaintiff "presented as depressed
with difficulty accomplishing goals . . ." and diagnosed anxiety disorder NOS (id.). Ms.
Weisberger diagnosed Plaintiff with mood disorder NOS and "rule out [PTSD] and major
depressive disorder" (id.). These assessments, however, did not mandate a disability
determination. See Torres, 249 F. Supp. 2d at 97.
Plaintiff selects certain CSO records to support her claim that she was disabled before
June 24, 2014 due to her lack of concentration, disorganization, and inability to complete tasks
due to memory deficits (Dkt. No. 17 at 4-7). For example, she notes that she was threatened with
a "51A" report to DCF of suspected child abuse and neglect in 2013 due to the condition of her
home (Dkt. No. 17 at 4 & n.1). However, CSO's records reflect that, thereafter, she focused on
cleaning up her home and there is no record of DCF opening a case (A.R. at 937, 941, 949). 12
There are manifest discrepancies between the CSO records upon which Plaintiff relies
and her reports of daily activities, which were discussed earlier, and the longitudinal records of
her treatment providers and the state agency consultants. Plaintiff was attentive and her memory
was intact when Dr. Vanderhorst examined her in April 2013 (id. at 515). In June and November
2013, Dr. Stephenson opined that Plaintiff did not have memory deficits and that her attention
and reasoning were not impaired (id. at 524, 812). In February, March, and April 2014, Dr.
Doshier described Plaintiff's mood as euthymic (id. at 835, 840, 846). Plaintiff's attention span
and concentration were "normal" on April 18, 2014 two days after she fell on ice (id. at 870).
The state agency consultants determined that Plaintiff could remember and understand simple
tasks and could focus on simple tasks for two hour periods during the work day (id. at 106-07,
The CSO records also note the filing of 51A reports by Plaintiff's daughter's school regarding
Plaintiff's daughter possibly "cutting" herself and staying overnight at her boyfriend's home with
both parents' permission (A.R. at 947). Plaintiff prepared for the meeting with DCF in her home
and answered their questions (id. at 949). There is no evidence DCF opened a case.
127-28). The ALJ considered these limitations when he crafted the RFC that included unskilled
work (A.R. at 16).
The ALJ explained his credibility assessments in detail and they are affirmatively linked
to substantial evidence. See Botelho v. Colvin, 153 F. Supp. 3d 451, 463 (D. Mass. 2015); SSR
96-7p, 1996 WL 374186, at *4. "Substantial evidence supports the ALJ's finding that Plaintiff's
statements about her [symptoms and] and ability to work were not fully credible." Johnson v.
Colvin, 204 F. Supp. 3d, 396, 413 (D. Mass. 2016).
Substantial evidence supports the ALJ's step five finding.
In one hypothetical question posed to the VE during the hearing, the ALJ asked if jobs
existed in the national and regional economy for a person who would be off task twenty percent
of the time and/or miss three days of employment per month (A.R. at 88). The VE testified that
no jobs would be available for a person with these limitations (id.). Plaintiff apparently alleges
that the ALJ should have found her disabled based upon the VE's response to this question (Dkt.
No. 17 at 11). However, based on the evidence that already has been discussed, these limitations
on Plaintiff's ability to work were not supported by substantial evidence. See Santos v. Astrue,
Civil Action No. 10-40166-TSH, 2012 WL 1109285, at *9 (D. Mass. Mar. 30, 2012) (rejecting
VE's answer to a hypothetical that assumed plaintiff would be absent four days per month
because these limitations were not supported by substantial evidence); Hutchins v. Astrue, Civ.
Action No. 09cv10900–NG, 2010 WL 3895183, at *6 (D. Mass. Sept. 30, 2010) (ALJ could rely
on vocational expert's response to first hypothetical where restrictions set forth in subsequent
hypothetical were not supported by substantial evidence).
At step five of the sequential analysis, the ALJ properly relied on the VE's answer to the
hypothetical question that incorporated Plaintiff's RFC (A.R. at 26). See Perez v. Sec'y of Health
& Human Servs., 958 F.2d 445, 447 (1st Cir. 1991) (where a hypothetical is supported by
substantial evidence, "the ALJ [is] entitled to rely on the vocational expert's testimony . . .").
The VE opined that a person with the articulated limitations could perform three jobs that existed
in the national and local economies (A.R. at 26, 86). Moreover, given that there was no evidence
that Plaintiff's impairments rendered her unable to travel to a job site and the evidence that she
was able to walk, get rides, and use public transportation for her daily living activities, the ALJ
was not required to consider Plaintiff's inability to drive in his step five analysis (id. at 230, 233,
275). See Lopez Diaz v. Sec'y of Health, Educ., & Welfare, 585 F.2d 1137, 1141 (1st Cir. 1978);
Santos, 2012 WL 1109285, at *9-10. Accordingly, the ALJ's step five determination was
supported by substantial evidence.
The ALJ did not err by failing to give Dr. DeVries' opinion controlling
weight because it was contradicted by the other record evidence and by
Plaintiff asserts that the ALJ violated the "treating physician rule" when he failed to
accord controlling weight to Dr. DeVries' May 2013 opinion that Plaintiff's memory,
concentration, comprehension, and language deficits rendered her disabled (Dkt. No. 17 at 7-8;
A.R. at 518). The Commissioner persuasively argues that the ALJ's determination to accord Dr.
DeVries' opinion "little weight" and to afford the consultants' opinions "great weight" was
supported by the record evidence, including Dr. DeVries' treatment records that contradicted her
opinion (Dkt. No. 19 at 17-18).
"An ALJ must 'always consider the medical opinions in [the] case record,' 20 C.F.R. §§
404.1527(b); 416.927(b), and SSA regulations prioritize the opinions of a claimant's treating
sources.'" Bourinot, 95 F. Supp. 3d at 175. See 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1)
(stating that "[g]enerally we give more weight to the opinion of a source who has examined you
than to the opinion of a source who has not examined you"). See also Johnson, 204 F. Supp. 3d
at 408. "'Controlling weight' is typically afforded a treating physician's opinion on the nature and
severity of an impairment where it is 'is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence' in the
claimant's case." Arruda v. Barnhart, 314 F. Supp. 2d 52, 72 (D. Mass. 2004) (quoting 20
C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2)). However, "[t]he law in this circuit does not require
the ALJ to give greater weight to the opinions of treating physicians." Arroyo v. Sec'y of Health
& Human Servs., 932 F.2d 82, 89 (1st Cir. 1991); Arruda, 314 F. Supp. 2d at 72.
Where controlling weight is not given to a treating source opinion, the ALJ considers an
array of factors to determine what weight to grant the opinion, including the length of the
treatment relationship and the frequency of examination, the nature and extent of the
treatment relationship, the degree to which the opinion can be supported by relevant
evidence, and the consistency of the opinion with the record as a whole. See 20 C.F.R.
§§ 404.1527(c)(2)-(6); 416.927(c)(2)-(6). Further, the regulations require adjudicators to
explain the weight given to a treating source opinion and the reasons supporting that
decision. 20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2) ("We will always give good reasons
in our notice of determination or decision for the weight we give your treating source's
Johnson, 204 F. Supp. 3d at 409. "'Inconsistencies between a treating physician's opinion and
other evidence in the record are for the ALJ to resolve.'" Id. (quoting Roshi v. Comm'r of Soc.
Sec., CIVIL ACTION NO. 14-10705-JGD, 2015 WL 6454798, at *6 (D. Mass. Oct. 26 2015)).
"In effect, an administrative law judge is given wide discretion to consider all other medical
opinions and weigh each of them." Westbrook v. Astrue, C.A. No. 09-cv-30019-MAP, 2009 WL
4017761, at *5 (D. Mass. Nov. 18, 2009).
The discrepancies between the results of neurologic assessments and Dr. DeVries'
opinion buttressed the ALJ's determination that Dr. DeVries' opinion should be afforded little
weight (A.R. at 24). "When a treating doctor's opinion is inconsistent with other substantial
evidence in the record, the requirement of 'controlling weight' does not apply." Shaw v. Sec'y of
Health & Human Servs., No. 93–2173, 1994 WL 251000, at *3 (1st Cir. June 9, 1994)
(unpublished). No apparent intracranial abnormality was observed on a CT scan of Plaintiff's
brain in January 2013 (A.R. at 401, 408-09). Contrary to Dr. DeVries' opinion, the examining
treatment providers -- Dr. Vanderhorst, Dr. Stephenson, Dr. Keating, the CSO therapists, and Dr.
Doshier -- and the non-examining state agency consultants, Dr. Whitehorn, and Dr. Perlman,
whose opinions the ALJ accepted, opined that Plaintiff's memory, comprehension, concentration,
and attention were adequate (id. at 24, 105-07, 123, 336, 515, 524, 812, 829, 835, 840-41, 846,
870). For example, Plaintiff reported to Dr. Vanderhorst, the neurologist, that she had no
difficulty understanding people and Dr. Vanderhorst determined that Plaintiff's memory was
"normal" (id. at 513, 515). Compare DiVirgilio v. Apfel, 21 F. Supp. 2d 76, 81 (D. Mass. 1998)
(ALJ could rely more heavily on non-examining physicians' reports where medical files were
reviewed carefully, most of the evidence was available, and the reports were supported by
objective medical evidence).
Although Plaintiff's stuttering was obvious to Dr. DeVries immediately after the
November 2012 motor vehicle accident, the records show the absence of an organic cause and
observed improvement (A.R. at 516-17, 852). Dr. Kwiatkowski opined that Plaintiff's stutter
was related to her anxiety and depression (id. at 360). During Plaintiff's April 2013 examination
by Dr. Vanderhorst, Plaintiff did well on the verbal fluency test (id. at 515). Dr. Vanderhorst
noted that Plaintiff did not stutter during the majority of the examination and that her stuttering
likely was a "functional phenomenon" (id. at 515-17). Plaintiff's speech was "clear [and] fluent"
during a visit to the BMC emergency department in May 2013 and was unremarkable at her
psychological consult at Family Practice Associates in November 2013 and during her visits to
Dr. Doshier from January through April 2014 (id. at 797, 829, 835, 840, 846, 868). In April
2014, Dr. Vanderhorst noted that Plaintiff's stuttering had dramatically improved during the year
since her last visit (id. at 852). Dr. Vanderhorst posited that Plaintiff's stuttering was related to
her depression and would improve as she addressed that condition (id.). A state agency
consultant determined that Plaintiff was capable of producing sustained intelligible speech (id. at
In addition to the conflict between Dr. DeVries' opinion and others' observations and
opinions, Dr. DeVries' reports were inconsistent with her opinion. See Morin v. Astrue, Civil
No. 10-cv-159-JL, 2011 WL 2200758, at *4 (D.N.H. June 6, 2011) (rejecting treating source's
opinion that was "'wholly inconsistent'" with the source's medical notes); Arruda, 314 F. Supp.
2d at 73 (finding that ALJ's decision to give little evidentiary weight to treating physician's
opinion was justified where physician's RFC assessment was inconsistent with his treatment
notes). Dr. DeVries noted an improvement in Plaintiff's speech in January 2013 (A.R. at 378,
380). In April 2013, Dr. DeVries reported that Plaintiff's stuttering had improved and she
responded to questions more quickly (id. at 800). Dr. DeVries' note from July 2013 indicated
that Plaintiff's stuttering and "neurologic abnormalities" showed slight improvement and Dr.
DeVries indicated that she "possibly" could return to work after she received treatment for sleep
apnea (id. at 791, 792). After Plaintiff fell in April 2014, Dr. DeVries opined that she would
return to her "neurologic baseline" within three to four weeks (id. at 874-75).
The ALJ correctly noted that the disability determination was within his purview, not Dr.
DeVries' (id. at 25). See SSR 96-5p, 1996 WL 374183, at *6 (July 2, 1996) ("Treating source
opinions on issues reserved to the Commissioner will never be given controlling weight [but] the
notice of the determination or decision must explain the consideration given to the treating
source's opinion(s)."). The ALJ adequately explained his reasons for affording Dr. DeVries'
opinion little weight: it was inconsistent with other medical source records, including hers.
Because the ALJ's determination was supported by substantial evidence, Plaintiff presents no
basis for reversal or remand.
For the reasons stated above, Plaintiff's motion for an order reversing the Commissioner's
decision (Dkt. No. 17) is DENIED, and the Acting Commissioner's motion to affirm the decision
(Dkt. No. 18) is GRANTED. The case will be closed.
It is so ordered.
Dated: September 11, 2017
/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
United States Magistrate Judge
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