Audrey P. v. Saul
REPORT AND RECOMMENDATIONS recommending that Plaintiff's Motion for Reversal of the Disability Determination of the Commissioner of Social Security (ECF No. 11) be GRANTED, with remand for further proceedings, not for an award of benefits, and that Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 13) be DENIED. 11 MOTION to Reverse the Decision of the Commissioner with supporting memorandum filed by Audrey Walsh Pouliot. The Defendant shall h ave up to and including 9/16/2020 to file a Motion to Affirm the Decision of the Commissioner. This motion must comp filed by Audrey Walsh Pouliot, 13 MOTION to Affirm the Decision of the Commissioner filed by Andrew M. Saul. Plaintiff 039;s Reply to Defendant's Motion to Affirm Decision of the Commissioner due by 10/28/2020. filed by Andrew M. Saul Objections to R&R due by 1/22/2021. So Ordered by Magistrate Judge Patricia A. Sullivan on 1/8/2021. (Noel, Jeannine)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
ANDREW M. SAUL,
COMMISSIONER OF SOCIAL SECURITY,
C.A. No. 20-92MSM
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
At the age of fifty, Plaintiff Audrey P., already suffering from an array of serious
impairments,1 was diagnosed with seronegative rheumatoid arthritis (“RA”) and filed her third
application for Disability Insurance Benefits (“DIB”) under 42 U.S.C. § 40 5(g) of the Social
Security Act (the “Act”) on August 22, 2017. Her date-last-insured is December 31, 2019. A
college graduate, Plaintiff had stopped working in 2014 as a school bus driver and office
assistant after her fourth spine surgery. Her application alleges onset of disability as of July 27,
2016, the day following the prior adverse disability decision.
The medical record in connection with the current DIB application was reviewed by four
non-examining state agency (“SA”) physicians and psychologists who opined that Plaintiff could
perform the full range of light work with some postural limits. After their review, the record was
expanded by the addition of three hundred pages of treating records; these reflect that, despite
Apart from RA, Plaintiff’s diagnosed impairments during the period in issue include diabetes, obesity, depression,
anxiety, asthma, neuropathy, cervical disc disease with radiculopathy, persistent anemia, carpal tunnel syndrome,
trochanteric bursitis, lumbar spine disease, knee arthritis, foot issues and sinus issues, as well as chronic sinusitis,
bronchitis and other infections related to an IgA deficiency. Plaintiff’s medical history reflects twelve surgeries,
with one more during the period in issue. These include four spinal surgeries (resulting in vertebral fusion and the
implantation of hardware); surgery on each knee; two surgeries to correct foot deformities; three surgeries to address
sinus abnormalities; and surgery to address breast cancer. She also received frequent injections to address pain in
her hips, shoulders and feet.
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prescriptions for increasingly aggressive combinations of medications, her RA was not well
controlled but was continuing to progress with worsening symptoms, including synovitis,
tenderness to palpation (“TTP”) and limited range of motion. Further, according to the records
not seen by the SA experts, Plaintiff’s functional capacity was repeatedly examined during
intensive physical therapy (“PT”), resulting in objective observations of severe limitations in the
ability to sit, stand or bend, as well as severe range-of-motion deficits; her anemia (and related
fatigue) became so severe as to require a course of IV iron infusion therapy; the persistence of
neuropathy resulting in hand tremors, numbness and hand/leg weakness, which remained
undiagnosed; tachycardia and restless leg syndrome were newly diagnosed; back pain worsened;
and she underwent a third foot surgery. Yet the Administrative Law Judge (“ALJ”) batted aside
as non-severe, inter alia, Plaintiff’s mental health issues and the pattern of serial infections
(sinusitis, bronchitis, cystitis and pneumonia) caused by IgA deficiency exacerbated by the
increasingly strong immune-suppressant medications she needed to slow the progress of RA,
rejected the opinion of Plaintiff’s longtime treating rheumatologist, Dr. Edith Garneau, and
discounted Plaintiff’s testimony regarding her symptoms. Instead, he adopted a residual
functional capacity (“RFC”)2 finding based on the SA experts who had reviewed a materially
incomplete record, as well as on his lay assessment of the portion of the medical record the SA
experts did not see. In reliance on the testimony of a vocational expert (“VE”) flawed by some
troubling discrepancies, he concluded that Plaintiff was not disabled at any relevant time because
she could work as a price marker, cashier, school bus monitor or hostess.
“RFC” or “residual functional capacity” is “the most you can still do despite your limitations,” taking into account
“[y]our impairment(s), and any related symptoms, such as pain, [that] may cause physical and mental limitations
that affect what you can do in a work setting.” 20 C.F.R. § 404.1545(a)(1).
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Plaintiff now contends the ALJ erred in his treatment of the opinion evidence, his
rejection of Plaintiff’s testimony and his finding that certain impairments were non-severe at
Step Two. Citing Sacilowski v. Saul, 959 F.3d 431 (1st Cir. 2020), she asks the Court to find
that the evidence supporting a finding of disability is “overwhelming,” to reverse the
Commissioner’s decision and to remand for entry of an order awarding disability benefits.
Defendant Andrew M. Saul has moved for an order affirming the Commissioner’s decision.
The matter has been referred to me for preliminary review, findings and recommended
disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the entirety of this extensive
record, I find that the ALJ erred in relying heavily on his lay assessment of the complex postfile-review medical record, as well as in finding persuasive the flawed SA opinions. I further
find that the ALJ’s reasons both for rejecting Dr. Gaudreau’s opinion as unpersuasive and for
discounting Plaintiff’s testimony regarding her symptoms are insufficiently supported, as well as
that the Step Two determinations are flawed. However, I also find the medical medley is mixed,
preventing this from being a case where the substantial evidence points overwhelmingly in one
direction. Accordingly, I recommend that Plaintiff’s Motion for Reversal of the Disability
Determination of the Commissioner of Social Security (ECF No. 11) be GRANTED, with
remand for further proceedings, not for an award of benefits, and that Defendant’s Motion for an
Order Affirming the Decision of the Commissioner (ECF No. 13) be DENIED.
Based on scoliosis and lumbar disc disease that had begun in childhood, Plaintiff
underwent lumbar spinal fusion surgery for the fourth time in October 2014. In the same month,
she stopped work and applied (for the second time) for disability benefits. The ALJ3 assigned
The second application was determined by a different ALJ from the ALJ whose decision is now under review.
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her case acknowledged that she had had repeated back surgeries (involving implantation of
extensive hardware), that she exhibited degenerative changes in the hips, feet, knees and neck,
with joint and spine tenderness and that her asthma and obesity were severe; however, he also
noted the absence of neuropathy, radiculopathy or abnormalities of strength or of gait, as well as
the absence of significant symptoms associated with anemia or IgA deficiency. Based on these
findings, this ALJ determined that, for the period up to July 26, 2016, Plaintiff was able to
perform light work, further limited to four hours of walking with only occasional stair climbing
and other postural and environmental limitations. Tr. 166-80. After the Appeals Council
declined review, Plaintiff did not appeal further and the second ALJ’s determination became
While the prior disability application was pending, on March 16, 2016, Plaintiff’s
primary care physician, Dr. Thomas Vinod noted “[n]onspecific pain, swelling, and stiffness”
and abnormalities of the hands, wrists and elbows, and referred Plaintiff to a rheumatologist. Tr.
597-600. Based on this referral, on March 31, 2016, Plaintiff began treating with Dr. Garneau
and other rheumatologists on her team. At the first appointment, Dr. Garneau observed synovitis
and tenderness to palpation (“TTP”) in the hands, limited range of motion in the neck and spine
and pain in the elbows, wrists and knees. Tr. 447. During the months of 2016 that followed, Dr.
Garneau saw Plaintiff every two months and continued to consider “inflammatory arthritis,” but
did not reach a definitive diagnosis. While Dr. Garneau continued to observe pain in the neck,
hands, wrists, knees and hips, sometimes with swelling or bogginess, she did not consistently
observe swelling, synovitis or decreased range of motion. Tr. 407-43; e.g., Tr. 443 (“normal
movement . . . no synovitis”). For the hip pain, which was persistent and interfered with
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walking, Dr. Garneau diagnosed trochanteric bursitis and repeatedly administered injections. Tr.
In July 2016, the prior ALJ’s adverse disability decision became final and the current
period of disability began.
On January 6, 2017, Dr. Garneau finally made a definitive diagnosis – seronegative
rheumatoid arthritis. Tr. 429-32. She began treatment with immune-suppressants and noted the
complications of medicating Plaintiff to slow the progress of RA because of her persistent
anemia and her IgA deficiency. Tr. 418, 426. By August 2017, Dr. Garneau observed that RA
was progressing despite medication, with “[a]t least 10 swollen and tender joints on today’s
exam.” Tr. 417. Dr. Garneau also noted seriously abnormal findings from a cervical MRI,
resulting in a diagnosis of radiculopathy, consistent with symptoms of numbness/tingling and
decreased sensation in the arm, and referred Plaintiff to the Neurology Foundation. Id. During
this period, Plaintiff repeatedly suffered from infections, particularly sinusitis; each time, Dr.
Garneau had to discontinue RA medications so Plaintiff could take antibiotics. E.g., Tr. 490,
538, 558, 890.
In August 2017, Plaintiff filed the pending application alleging onset of disability in July
2016. The new application included RA on the list of alleged impairments.
In November and December 2017, Plaintiff’s rheumatology team at Roger Williams
Medical Center (covering for Dr. Garneau) noted “persistent stiffness/swelling,” despite no
active synovitis, TTP or limitations of range of motion seen during the examination; the treating
rheumatologist cautioned that Plaintiff’s RA was “heading toward tripple [sic] oral” treatment.
Tr. 896-97. In addition, the test to explore arm tingling, numbness and neck pain yielded
abnormal findings establishing neuropathy affecting the arms and wrists. Tr. 747. In December
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2017, the rheumatologist covering for Dr. Garneau performed an examination resulting in
observations of tender points in her shoulder, hips and hands and a shoulder injection was
administered; his notes reflect that Plaintiff had recently had to stop RA medication yet again
because of “sinusitis requiring antibiotics.” Tr. 892-93. In April 2018, a neurologist following
up on the abnormal EMG observed on examination weakness of shoulders, elbows, fingers and
hips and an upper extremity tremor; he noted he did not “think that the C-spine MRI findings
explain the degree of weakness seen in her hands.” Tr. 984-86.
In addition to treating with the rheumatology team (including Dr. Garneau), as well as
neurologists at the Neurology Foundation, throughout the period from the date of onset in July
2016 until the end of 2017, Plaintiff continued ongoing treatment with her primary care
physician, Dr. Vinod. Dr. Vinod prescribed medications for and monitored diabetes, asthma,
depression, anxiety and Plaintiff’s many infections. Tr. 485-576. He briefly referred Plaintiff
for mental health counseling within his practice, but it was discontinued. Tr. 496-505.
Nevertheless, the Vinod treating record reflects the observations of Dr. Vinod and the counselor
that Plaintiff was “easily distracted” and found it “hard to sit still.” Tr. 498, 503, 510. It also
reflects Dr. Vinod’s findings of weakness of the hands and the notes of a nurse in the practice
that, “[m]obility is very limited due to the ongoing pain and fusion of her entire vertebrae, she is
limited in bending standing sitting, making it difficult with ADL’s and IADL’s.” Tr. 517, 533.
These records were assembled for review by the SA physicians and psychologists.
Noting Plaintiff’s college education and ability to function within her family and to perform at
least some limited activities of daily living, both SA psychologists dismissed her mental health
complaints (depression and anxiety) as “mild at best.” Tr. 205. The non-examining SA
physician at the initial phase (Dr. Thomas Bennett) focused on the findings of full range of
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motion, absence of active synovitis or TTP and found Plaintiff could perform light work with
some postural limitations. Tr. 192-94. At the reconsideration phase, the SA physician (Dr.
Charles Kahn) focused on the recently submitted April 2018 notes of the neurologist whose
examination yielded findings of weakness and swelling of the hands. Despite this development,
Dr. Kahn nevertheless endorsed the same limitations as those developed by Dr. Bennett,
including no limitations in the ability to use the hands for manipulation. Tr. 206-07.
After the SA file reviews at the initial and reconsideration phases were concluded,
Plaintiff’s RA continued to progress despite repeated adjustments of medication, including
repeated stoppage due to the frequent recurrence of infections. For example, in June 2018, Dr.
Garneau noted “worsening fatigue,” a return of hip pain despite an injection and tenderness (but
no synovitis) of the shoulders and hips, Tr. 1254-58, while the neurologist observed “[b]ilateral
hand weakness with sensory symptoms.” Tr. 1202. Also in June 2018, Dr. Garneau referred
Plaintiff to PT, which she attended twice a week from June until August 2018. Tr. 1108-42.
At the first PT appointment, an examination was conducted. It resulted in the findings
that Plaintiff’s lumbar range of motion was “extremely limited” and her hip range of motion was
“significantly limited”; she had point tenderness and TTP, with “severe AROM deficits in all
planes of motion related to spinal fusion, impaired neurodynamic’s [sic] and gluteal/core
weakness.” Tr. 1109. For her objective assessment, the therapist noted “[f]unctional difficulty
include[s] standing, sitting, bending over and walking all 2/2 pain,” id., and set goals of the
ability to tolerate standing and sitting for thirty minutes and bending over without difficulty, Tr.
1110. After fourteen sessions over a three-month period, none of these goals had been achieved;
PT treatment was terminated in August 2018. Tr. 1181. Copies of the PT reports were provided
to Dr. Garneau, who saw Plaintiff in August 2018, and was aware of the lack of progress. E.g.,
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1180-87. Far from improvement, at the August appointment, Dr. Garneau observed exacerbated
RA symptoms, including synovitis and limited range of motion in the hands and wrists, with
TTP in the hands, wrists and shoulders; she noted, “has persistent synovitis today with 8 swollen
and tender joint count.” Tr. 1253. To address the progress of the disease, Dr. Garneau increased
one medication and added another. Tr. 1254.
At the end of 2017, Plaintiff changed her primary care physician. During 2018, she saw
Dr. Seerat Aujla who continued to prescribe and monitor medications for diabetes, asthma and
depression/anxiety; Dr. Aujla also newly diagnosed tachycardia and restless leg syndrome,
adding these to Plaintiff’s list of impairments. Tr. 1268, 1284. Dr. Aujla’s notes reflect that RA
is “not currently well controlled,” and, at various appointments, she observed tremor in the upper
extremities, restricted range of motion, pain on movement of the shoulders and upper extremities
and worsening back pain. Tr. 1279, 1305, 1310. In September 2018, noting Plaintiff’s
worsening restless leg problems, Dr. Aujla sent Plaintiff for review of her anemia. Tr. 1272. Dr.
Bharti Rathmore found Plaintiff to be “symptomatic with depleted iron stores,” including fatigue
and dizziness; he prescribed intravenous infusions of iron. Tr. 1324. In November 2018,
Plaintiff’s podiatrist observed the exacerbation of “painful” deformities of the left foot, found
that “conservative treatment options had failed” and performed foot surgery on November 2,
2018. Tr. 1345.
For a three-month period in 2018, Plaintiff returned to treating with a mental health
counselor for depression and anxiety.4 See Tr. 87-99. These sessions ended with the counselor’s
observation that, “she is stable and doing well enough that she doesn’t need counseling anymore.
The counselor’s treating record was not produced until the case reached the appeals council. However, Plaintiff
testified (accurately as the later-produced treating notes revealed) about this course of treatment during the hearing
so the ALJ was aware of it. Tr. 128.
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Her anxiety doesn’t seem to interfere with the daily activities and depression is minimal.” Tr.
93. At the hearing, Plaintiff consistently explained that the therapist ended treatment because, “I
was handling my anxiety well, and . . . I have all the tools that I need to work through things.”
Signed in September 2018,5 Dr. Garneau provided her opinion regarding Plaintiff’s
functional capacity. The opinion focuses on the diagnoses of RA and IgA deficiency, noting that
the latter is significant because it impacts adversely the RA treatment Plaintiff can tolerate due to
the risk of infection. Tr. 1019. For clinical findings, consistent with her contemporaneous
treating notes, Dr. Garneau listed synovitis, tenderness to palpation and elevated inflammatory
markers. Id. For functional limitations, Dr. Garneau found that Plaintiff could rarely lift a twogallon container of milk, could sit for up to two hours, could stand for up to one hour and could
walk for up to thirty minutes. Tr. 1020-21. For additional limitations, Dr. Garneau opined that
Plaintiff would need to lie down occasionally during the workday and would be frequently offtask because of “pain, fatigue, [and] the effects of medication,” which would interfere with her
ability to concentrate, persist or keep pace. Tr. 1021.
At the hearing before the ALJ, Plaintiff testified that pain is her biggest obstacle to
working; her back, hips and neck hurt all the time. Tr. 121-24. The regularly repeated injections
in the hips and shoulders helped only temporarily. Tr. 125. Anemia has caused fatigue and
recently required iron infusions because it became extreme; these periodic intravenous
treatments take up to two hours each. Tr. 136. Because of the four spinal fusion surgeries, she
Dr. Garneau signed this opinion one month after receiving the final reports from the PT provider, which contained
objective findings of serious limitations affecting range of motion, bending, sitting, standing and walking and which
reflect no meaningful progress towards goals set for improvement despite Plaintiff’s consistent attendance at
appointments. Tr. 1180. Also, one month before her opinion was signed, Dr. Garneau recorded objective
observations of synovitis, TTP and limited range of motion affecting the hands, wrists and shoulders, resulting in
another increase in prescribed medications. Tr. 1253-54.
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has limited mobility, including limited ability to sit. Tr. 124. As to RA, Plaintiff testified that
she has good days and bad days; on a good day, she can walk for fifteen minutes, can manage
stairs with difficulty, can lift up to seven pounds and can sit and stand for up to twenty to thirty
minutes. Tr. 125-26, 140. Because of the RA symptoms affecting her hands, she writes and eats
with difficulty and is unable to do crafts, sewing or anything involving fine manipulation. Tr.
121-22. She explained that her diabetes treatment upsets her stomach and requires frequent trips
to the bathroom over the course of a day. Tr. 160.
For the ALJ’s hypothetical to the VE, the ALJ relied on the findings of the SA
physicians and psychologists, except that he added a manipulative limitation (permitting only
frequent, not constant, handling), an environmental limitation and no production or pace work.
In response, the VE testified that Plaintiff’s prior work was ruled out, but that other jobs
remained possible, including price marker, cashier, school bus monitor and host/hostess. Tr.
Standard of Review
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405(g). Substantial evidence is more than a scintilla – that is, the evidence must do
more than merely create a suspicion of the existence of a fact and must include such relevant
evidence as a reasonable person would accept as adequate to support the conclusion. Ortiz v.
Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam); Rodriguez v.
Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981); Brown v. Apfel, 71 F.
Supp. 2d 28, 30 (D.R.I. 1999). Once the Court concludes that the decision is supported by
substantial evidence, the Commissioner must be affirmed, even if the Court would have reached
a contrary result as finder of fact. Rodriguez Pagan v. Sec’y of Health & Human Servs., 819
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F.2d 1, 3 (1st Cir. 1987); see also Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991);
Lizotte v. Sec’y of Health & Human Servs., 654 F.2d 127, 128 (1st Cir. 1981). The
determination of substantiality is based upon an evaluation of the record as a whole. Brown, 71
F. Supp. 2d at 30; see also Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 195 (1st
Cir. 1987); Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (court also must consider
evidence detracting from evidence on which Commissioner relied). Thus, the Court’s role in
reviewing the Commissioner’s decision is limited. Brown, 71 F. Supp. 2d at 30. The Court does
not reinterpret the evidence or otherwise substitute its own judgment for that of the
Commissioner. Id. at 30-31 (citing Colon v. Sec’y of Health & Human Servs., 877 F.2d 148,
153 (1st Cir. 1989)). “[T]he resolution of conflicts in the evidence is for the Commissioner, not
the courts.” Id. at 31 (citing Richardson v. Perales, 402 U.S. 389, 399 (1971)).
If the Court finds either that the Commissioner’s decision is not supported by substantial
evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim,
the Court may remand a case to the Commissioner for a rehearing under Sentence Four of 42
U.S.C. § 405(g). Allen v. Colvin, No. CA 13-781L, 2015 WL 906000, at *8 (D.R.I. Mar. 3,
2015) (citing Jackson v. Chater, 99 F.3d 1086, 1097-98 (11th Cir.1996)). If the Court finds that
a judicial award of benefits would be proper because the proof is overwhelming and there is no
contrary evidence to directly rebut it, the Court can remand for an award of benefits. Sacilowski,
959 F.3d at 439, 441; Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001).
The law defines disability as the inability to do 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
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twelve months. 42 U.S.C. § 416(i); 20 C.F.R. § 404.1505. The impairment must be severe,
making the claimant unable to do previous work, or any other substantial gainful activity which
exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-1511.
The Five-Step Evaluation
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §
404.1520. First, if a claimant is working at a substantial gainful activity, the claimant is not
disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or
combination of impairments that significantly limit physical or mental ability to do basic work
activities, then the claimant does not have a severe impairment and is not disabled. 20 C.F.R. §
404.1520(c). Third, if a claimant’s impairments meet or equal an impairment listed in 20 C.F.R.
Part 404, Appendix 1, the claimant is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant’s
impairments do not prevent doing past relevant work, the claimant is not disabled. 20 C.F.R. §
404.1520(e)-(f). Fifth, if a claimant’s impairments (considering RFC, age, education and past
work) prevent doing other work that exists in the local or national economy, a finding of disabled
is warranted. 20 C.F.R. § 404.1520(g). Significantly, the claimant bears the burden of proof at
Steps One through Four, but the Commissioner bears the burden at Step Five. Wells v. Barnhart,
267 F. Supp. 2d 138, 144 (D. Mass. 2003) (five step process applies to both DIB and SSI
The claimant must prove the existence of a disability on or before the last day of insured
status for the purposes of disability benefits. Deblois v. Sec’y of Health & Human Servs., 686
F.2d 76, 79 (1st Cir. 1982); 42 U.S.C. §§ 416(i)(3), 423(a), 423(c).
Step Two Determination
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An impairment is “not severe” at Step Two if the medical evidence establishes no more
than a slight abnormality that would have only a minimal effect on an individual’s ability to
work. SSR 85-28 at *2, 1985 WL 56856 (Jan. 1, 1985). As the First Circuit has long held, Step
Two is a screening device used to eliminate applicants “whose impairments are so minimal that,
as a matter of common sense, they are clearly not disabled from gainful employment.”
McDonald v. Sec’y of Health & Human Servs., 795 F.2d 1118, 1122 (1st Cir. 1986); Burge v.
Colvin, C.A. No. 15-279S, 2016 WL 8138980, at *7 (D.R.I. Dec. 7, 2016), adopted sub nom.,
Burge v. Berryhill, C.A. No. 15-279 S, 2017 WL 435753 (D.R.I. Feb. 1, 2017). Further, if there
is error at Step Two, but the sequential analysis continues because of another severe impairment,
the error is generally deemed harmless. White v. Colvin, No. CA 14-171 S, 2015 WL 5012614,
at *8 (D.R.I. Aug. 21, 2015); see Syms v. Astrue, Civil No. 10-cv-499-JD, 2011 WL 4017870, at
*1 (D.N.H. Sept. 8, 2011) (“[A]n error at Step Two will result in reversible error only if the ALJ
concluded the decision at Step Two, finding no severe impairment.”) (collecting cases). Thus, as
long as the ALJ’s RFC analysis is performed in reliance on the opinions of state agency
reviewing experts or treating sources who considered the functional impact of the impairment in
question, there is no material error in failing to include it as a severe impairment at Step Two.
Evans v. Astrue, No. CA 11–146S, 2012 WL 4482366, at *4-6 (D.R.I. Aug. 23, 2012) (no error
in ignoring diagnosis of antisocial personality disorder at Step Two where ALJ relied on medical
expert’s testimony regarding resulting limitations).
For applications like this one, filed after March 27, 2017, the SSA has fundamentally
changed how adjudicators assess opinion evidence. The familiar and longstanding requirements
– that adjudicators must assign “controlling weight” to a well-supported treating source’s
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medical opinion that is consistent with other evidence, and, if controlling weight is not given,
must state the specific weight that is assigned – are gone. 20 C.F.R. § 404.1520c(a). Instead,
adjudicators “will not defer or give any specific evidentiary weight, including controlling weight,
to any medical opinion(s) or prior administrative medical finding(s), including those from your
medical sources.” Id. Rather, an ALJ must consider the persuasiveness of all medical opinions
in a claimant’s case record. See 20 C.F.R. § 404.1520c. The most important factors to be
considered when the Commissioner evaluates persuasiveness are supportability and consistency;
these are usually the only factors the ALJ is required to articulate. 20 C.F.R. § 404.1520c(b)(2);
Jones v. Berryhill, 392 F. Supp. 3d 381, 839 (M.D. Tenn. 2019); Gorham v. Saul, Case No. 18cv-853-SM, 2019 WL 3562689, at *5 (D.N.H. Aug. 6, 2019).
Evaluation of Subjective Symptoms
When an ALJ decides to discount a claimant’s subjective statements about the intensity,
persistence and severity of symptoms, he must articulate specific and adequate reasons for doing
so or the record must be obvious. See Da Rosa v. Sec’y of Health & Human Servs., 803 F.2d 24,
26 (1st Cir. 1986); Rohrberg v. Apfel, 26 F. Supp. 2d 303, 309-10 (D. Mass. 1998). A reviewing
court will not disturb a clearly articulated finding supported by substantial evidence. See
Frustaglia, 829 F.2d at 195. If proof of disability is based on subjective evidence so that the
credibility determination is determinative, “the ALJ must either explicitly discredit such
testimony or the implication must be so clear as to amount to a specific credibility finding.”
Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (quoting Tieniber v. Heckler, 720 F.2d
1251, 1255 (11th Cir. 1983)). Guidance in evaluating the claimant’s statements regarding the
intensity, persistence, and limiting effects of subjective symptoms is provided by SSR 16-3p,
2017 WL 4790249, at *49462 (Oct. 25, 2017). It directs the ALJ to consider the entire case
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record, including the objective medical evidence; an individual’s statements about the intensity,
persistence, and limiting effects of symptoms; statements and other information provided by
medical sources and other persons; any other relevant evidence; and whether statements about
the intensity, persistence, and limiting effects of symptoms are consistent with the medical signs
and laboratory findings. SSR 16-3p, 2017 WL 4790249, at *49465. When there is no evidence
to directly rebut the claimant’s testimony, nor any reason to question its credibility, it should be
taken as true. Sacilowski, 959 F.3d at 441.
“Pain can constitute a significant non-exertional impairment.” Nguyen v. Chater, 172
F.3d 31, 36 (1st Cir. 1991). Congress has determined that a claimant will not be considered
disabled unless medical and other evidence (e.g., medical signs and laboratory findings) is
furnished showing the existence of a medical impairment which could reasonably be expected to
produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). The ALJ must consider all of
a claimant’s statements about symptoms, including pain, and determine the extent to which the
symptoms can reasonably be accepted as consistent with the objective medical evidence. SSR
16-3p, 2017 WL 4790249, at *49462; 20 C.F.R. § 404.1529(c)(3). In determining whether the
medical signs and laboratory findings show medical impairments that reasonably could be
expected to produce the pain alleged, the ALJ must consider the nature, location, onset, duration,
frequency, radiation, and intensity of any pain; precipitating and aggravating factors (e.g.,
movement, activity, environmental conditions); type, dosage, effectiveness, and adverse sideeffects of any pain medication; treatment, other than medication, for relief of pain; functional
restrictions; and the claimant’s daily activities. Avery v. Sec’y of Health & Human Servs., 797
F.2d 19, 29 (1st Cir. 1986); SSR 16-3p, 2017 WL 4790249, at *49465; Gullon v. Astrue, No. 11-
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cv-099ML, 2011 WL 6748498, at *5-6 (D.R.I. Nov. 30, 2011). An individual’s statement as to
pain is not, by itself, conclusive of disability. 42 U.S.C. § 423(d)(5)(A). However, the
individual’s statements about the intensity, persistence, and limited effects of symptoms may not
be disregarded “solely because the objective medical evidence does not substantiate the degree
of impairment-related symptoms.” SSR 16-3p, 2017 WL 4790249, at *49465.
If a treating physician finds that a patient’s physical impairment is real, the physician
may rely on the claimant’s subjective statements regarding the impact of pain on the ability to
function in opining to the patient’s RFC and the ALJ may not discount an otherwise wellfounded opinion on that basis. Ormon v. Astrue, 497 F. App’x 81, 85-86 (1st Cir. 2012). “[T]he
statements of the claimant and his doctor must be additive to clinical or laboratory findings” in
considering pain’s functional implications. Avery, 797 F.2d at 21. It is error for the ALJ to
place “an extreme insistence on objective medical findings to corroborate subjective testimony of
limitations of function because of pain.” Id. at 22.
Opinion Evidence and Plaintiff’s Subjective Statements
Rheumatoid arthritis – RA – is a “progressive disease” that, if unchecked by treatment,
can cause painful, permanent and potentially deforming changes to joints, organs and systems.
Cruz v. Astrue, C.A. No. 11-638M, 2013 WL 795063, at *1 (D.R.I. Feb. 12, 2013), adopted,
2013 WL 802986 (D.R.I. Mar. 4, 2013). Because it is a disease that “can wax and wane,” a
disability claim based on RA presents the Commissioner with a medically complex inquiry that
requires analysis by qualified medical professionals. Id. at *14. Further, the RA claimant’s
subjective testimony regarding pain and its impact on her ability to function is pivotal in such
cases; such testimony should not be discounted except in reliance on substantial evidence or
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well-grounded adverse credibility findings. Id. at *17-18. In this case, Plaintiff challenges as
error the ALJ’s reliance on the SA physicians, whose opinions the ALJ used (together with his
lay assessment of the post-SA treating record) not just as the foundation for the RFC, but also to
support both the finding that the treating rheumatologist’s opinion is unpersuasive and the
rejection of Plaintiff’s testimony regarding the functional limitations caused by pain. I find these
arguments to be well founded.
At the initial phase, the non-examining SA physician, Dr. Bennett, focused on the reality
that, at most appointments during the period he reviewed (2016 and 2017), Dr. Garneau observed
swelling and tenderness, but not strength deficiencies, abnormal gait, synovitis, TTP or limited
range of motion. Tr. 207. At the reconsideration phase, the SA physician (Dr. Kahn) saw a few
additional records from early 2018, but rejected as immaterial the neurologist’s findings of
neuropathy, a tremor, weakness and swelling in the hands and wrists and concluded that the
EMG result would not support any additional limitations; he endorsed the findings made by Dr.
Bennett at the initial phase, which had been limited to 2016 and 2017 records. The ALJ found
the Bennett/Kahn SA opinions to be persuasive because they “are supported by and consistent
with the record as a whole,” except that the ALJ acknowledged that the “[a]dditional medical
evidence . . . justifies . . . some manipulative and environmental limitations,” as well as a
limitation on crouching. Tr. 27.
The SA physicians did not see most of the treating record from 2018. These 2018
records reflect the worsening of Plaintiff’s RA symptoms as observed by Dr. Garneau, the
observations of functional limitations by the PT therapists, the need for yet another foot surgery,
the exacerbation of anemia requiring intravenous infusion and the new diagnoses of tachycardia
and restless leg syndrome. By way of example, Dr. Bennett’s opinion emphasizes “no active
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synovitis, nor TTP; full ROM,” Tr. 194, and includes the finding that Plaintiff can “occasionally”
bend at the waist, Tr. 193; Dr. Kahn simply endorses these conclusions, noting only that the
April 2018 abnormal EMG is not serious enough to add any additional limitations.6 After these
opinions were signed, the record swelled, inter alia, to include the objective findings on
examinations performed over three months by PT specialists reflecting severe functional
limitations and the inability to bend, while Dr. Garneau’s treating notes reflect that she continued
to increase Plaintiff’s RA medications, yet synovitis, TTP and limited range of motion recurred.
The ALJ’s heavy reliance on these SA physician opinions transgresses the well-settled
proposition that SA opinions are not “substantial evidence” when “the state-agency physicians
were not privy to parts of [plaintiff’s] medical record [which] detract from the weight that can be
afforded their opinions.” Andrea T. v. Saul, C.A. No. 19-505WES, 2020 WL 2115898, at *5
(D.R.I. May 4, 2020), adopted, C.A. No. 19-505WES (D.R.I. June 5, 2020) (listing cases)
(alterations in original); Virgen C. v. Berryhill, C.A. No. 16-480 WES, 2018 WL 4693954, at *3
(D.R.I. Sept. 30, 2018). In this case, the evidence reflecting worsening that the SA physicians
did not see is substantial and material. Having rejected the opinion of Dr. Garneau (who was
aware of this evidence of Plaintiff’s worsening and incorporated it into the physical capacity
questionnaire she completed), the ALJ was left to rely on his lay assessment of this complex
medical record. This is error that requires remand.
The bookend to this error is the ALJ’s rejection of Dr. Garneau’s opinion as of “little
persuasive value.” Tr. 27. As his reasons supporting this finding, the ALJ’s decision focuses
first on Dr. Garneau’s opinion that “emotional factors” do not contribute to Plaintiff’s functional
Even the ALJ disagreed with this finding. His lay assessment of the record resulted in his conclusion that Dr.
Kahn was wrong because “the claimant’s impairments would result in some manipulative . . . limitations.” Tr. 27.
The ALJ added the limitation of “frequent bilateral handling” to his RFC (developed without guidance from a
medical professional) to reflect this conclusion. Tr. 20.
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limitations and Dr. Garneau’s treating notes, which consistently found Plaintiff to be “alert,
awake and fully oriented”; the ALJ concludes that these clash with Dr. Garneau’s opinion that
“pain, fatigue, [and] the effects of medication [would] interfere with concentration, persistence,
or pace such that [she] would be ‘off task’” frequently. Tr. 27, 1021. This “reason” makes no
sense. Just because Plaintiff’s depression and anxiety are mild, it does not logically follow that
“pain, fatigue [and] the effects of medication” would not distract her to the point where she
would be frequently off task.
Second, the ALJ’s decision focuses on Dr. Garneau’s findings of severe limits in the
ability to lift, stand, walk and of the need to lay down frequently; he concludes that these limits
are inconsistent with the medical record (including Dr. Garneau’s own notes) in that Plaintiff had
“overall preserved strength” and had been able to perform at least some activities of daily living.
Tr. 27. The problem with this second reason is that it is largely based on the pre-SA review
period as reflected in the SA opinions. For the period after the SA file review, the record is
loaded with evidence of weakness and severely limited functionality. Indeed, just in the month
preceding the signing of her opinion, Dr. Garneau received the PT Discharge Evaluation
reflecting “minimal changes in overall functional capacity . . . continues to be limited
functionally and experience high pain levels,” Tr. 1152, and recorded her own observations of
exacerbation of RA symptoms. Thus, the Garneau opinion is entirely consistent with and wellsupported by these contemporaneous records. Otherwise, consistent with RA, the evidence
reflects that Plaintiff had good days and bad days. Tr. 140. Whether the good days collectively
amount to a material inconsistency with Dr. Garneau’s opinion requires a medical assessment of
complex clinical findings, which the ALJ lacked the ken to perform. Bottom line – the ALJ’s
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determination to afford Dr. Garneau’s opinion little persuasive weight is tainted by error
requiring remand for further consideration.
The third error caused by the ALJ’s reliance on the SA opinions is the ALJ’s finding that
Plaintiff’s testimony was inconsistent with the medical record, causing him to discount her
descriptions of pain and its impact on her.7 Tr. 21-26. In assessing Plaintiff’s credibility, the
ALJ’s decision plays up any mention of slight “improvement” in the record and overlooks the
overall conclusions by various treating providers. The most dramatic example of this cherry
picking is the ALJ’s description of the clinical assessments by the PT therapists who consistently
found severe functional limitations caused by pain, and, rarely, noted slight improvements. Yet
the ALJ marshals their records as evidence that is inconsistent with Plaintiff’s testimony. In so
doing, he ignored the PT providers’ overarching conclusion that Plaintiff suffered from
significant and unresolved “[f]unctional difficulty includ[ing] standing, sitting, bending over and
walking all 2/2 pain.” Tr. 1109; see Tr. 1152 (clinical assessment at discharge: “[p]atient
presents with minimal changes in overall functional capacity measured since IE and continues to
be limited functionally and experience high pain levels”). Similarly, the ALJ focused on the
rheumatologists’ occasion findings of improvement with medication changes, Tr. 22, but ignored
the overarching rheumatological finding that the RA was progressing despite such medication
increases. Nor did he consider that Plaintiff’s subjective statements should not be lightly
rejected when they had been evaluated and accepted by the treating sources (such as Dr.
Garneau) who relied on them to prescribe increasingly aggressive medications. Renaud v.
Colvin, 111 F. Supp. 3d 155, 164 (D.R.I. 2015) (inappropriate to reject subjective reports in
The ALJ did not find Plaintiff to be a malingerer, nor could he in the face of this record. Tr. 192 (finding
Plaintiff’s statements substantiated by objective medical evidence); Tr. 1020 (Dr. Garneau opines that Plaintiff is not
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treatment notes, unless there is indication that doctor disbelieved patient); Cruz, 2013 WL
795063, at *18 (illogical for RA claimant to exaggerate symptoms resulting in prescriptions for
increasingly toxic medley of medication).
At bottom, whether this medical record amounts to “evidence to directly rebut
[Plaintiff’s] testimony” or presents a “reason to question [her] credibility,” Sacilowski, 959 F.3d
at 441, must depend on how the record, particularly the post-SA review record, is assessed by a
qualified medical professional. I find that the ALJ’s credibility finding is tainted by error
Step Two Findings
Plaintiff argues that the ALJ’s Step Two findings are tainted by error. She bifurcates the
argument, focusing first on the finding that Plaintiff’s mental impairments are non-severe
impairments, and second on the finding that IgA deficiency, asthma, diabetes and the foot
deformities are all non-severe.
The ALJ’s conclusion that Plaintiff’s mental health impairments are non-severe is
troublesome. In this case, the established mental impairments were depression and anxiety,
which the SA psychologists found – correctly – to have only a mild impact on concentration;
consistently the post-SA review record reflects the note of the counselor that, “[h]er anxiety
doesn’t seem to interfere with her daily activities and depression is minimal.” Tr. 93. The
problem is that agency policy requires that reviewing SA psychologists also must consider the
impact of the claimant’s physical condition on her mental capacity, including her ability to
concentrate. SSR 96-8p, 1996 WL 374184, at *6 (July 2, 1996). However, the SA psychologists
simply do not mention pain, fatigue, the effect of medication or any other physical condition as a
factor they considered in assessing Plaintiff’s ability to concentrate. Instead, they drew solely
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from Plaintiff’s minimal mental health treatment for depression and anxiety, as well as the
Function Report (which reflects the limited ability to drive, shop, prepare food and perform light
housework). Based on these sources, they forged their finding that Plaintiff’s ability to
concentrate is only mildly impacted. Tr. 205. The SA psychologists appear to have ignored all
of Plaintiff’s physical stressors. The ALJ’s Step Two mental health finding is grounded on this
This error is material. Plaintiff would have been awarded benefits if the ALJ had
accepted Dr. Garneau’s finding of seriously impaired concentration due to “pain, fatigue [and]
the effects of medications,” and not because of “emotional factors.” Tr. 1020-21. The ALJ
rejected this finding in reliance on the SA psychologists who ignored “pain, fatigue [and] the
effects of medication” and on the SA physicians, who did focus on “pain, fatigue [and] the
effects of medication,” but who completed a form that did not ask them to opine regarding the
impact of pain (or anything else) on concentration. In effect, the ALJ based his Step Two mental
health findings regarding mental impairments on the absence of medical analysis (other than Dr.
Garneau’s opinion) of how Plaintiff’s ability to concentrate was impacted by pain, fatigue and
the effects of medication. See Sacilowski, 959 F.3d at 439-40 (where treating physician opined
to absences and SA physicians were not asked to consider absences, “no contrary evidence” has
been provided). Because the ALJ’s erroneous treatment of the Garneau opinion seems at least
partially rooted in this Step Two failure of the SA psychologists to consider the severity of the
impact of Plaintiff’s pain, fatigue and many medications on her mental capacity, including her
ability to concentrate, persist or maintain pace, I recommend remand for further consideration of
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Plaintiff’s secondary challenge to the ALJ’s Step Two findings – that IgA deficiency,
asthma, diabetes and the foot deformity are non-severe – is also concerning. For example, the
IgA deficiency caused repeated8 infections (sinusitis, bronchitis, pneumonia) and limited
Plaintiff’s ability to benefit from RA medication; diabetes required medication that caused
repeated stomach upset, requiring frequent interruptions to use the bathroom; and Plaintiff’s foot
deformity caused intermittent pain (although no observed impact on gait) and resulted in
injections and ultimately surgery (for the third time) to address two bunions. Plaintiff’s asthma
was characterized as “moderate, persistent” and had been found to be severe by the ALJ during
the prior proceeding; there is no evidence that this chronic condition had materially improved.
The Court recognizes that it is well settled that, if these findings are error, such error
would be harmless because the sequential analysis continued, and the symptoms of these
impairments were considered in formulating the RFC. See White, 2015 WL 5012614, at *8
(D.R.I. Aug. 21, 2015) (discussing “well-settled principle that a claimant cannot demonstrate
harmful error at Step Two unless the failure to make severity findings ends the analysis”).
However, with such a complex and interconnected medical picture, the ALJ’s Step Two
approach – viewing each of these as an isolated condition that, so viewed, is de minimis in effect
– is problematic. By way of just one example, the ALJ undercounted the number of IgA-related
infections and noted an improvement from stopping work (because of no further contact with
children); he completely ignored the increasing frequency of these infections over the course of
the relevant period, how repeated infections treated with a course of antibiotics alone would
The ALJ counted six such infections from October 2016 to October 2018. Tr. 14. The Commissioner concedes
that this count omitted at least two infections. In the more recent period, the Court’s count suggests that Plaintiff
appeared to have eight such infections in just an eleven-month period (from May 2018 to April 2019). Whatever is
the right number, this level of periodic infection requiring a course of antibiotics is not just very serious in itself, but
also impacted Plaintiff’s RA because of the need to stop RA medication to take antibiotics.
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impact the ability to consistently attend work, as well as the significant adverse impact of these
infections on Dr. Garneau’s ability to manage the progression of RA. Finding this to be error, I
recommend that, on remand, the ALJ should reassess his Step Two findings regarding these
impairments and their impact on Plaintiff’s overall functionality, with assistance from a qualified
Mindful of this recommendation that remand is required, I close by flagging a final
problem with the ALJ’s analysis that was not mentioned by Plaintiff. See Heidi M. v. Berryhill,
No. CV 17-412PAS, 2018 WL 6788034, at *1 (D.R.I. Dec. 26, 2018) (when justice requires,
issues in Social Security cases may be raised sua sponte by court). Based on the VE’s testimony
and his own RFC, the ALJ found that Plaintiff could work as a price marker, cashier, school bus
monitor and host/hostess. At least two of these findings make little sense. For example, with the
limitation of only “frequent bilateral handling,” as the ALJ found, Tr. 20, it is difficult to
understand how such an individual could work as a “price marker” when handling is the primary
function required for the job. Dictionary of Occupational Titles (“DOT”), Clerical and Sales
Occupations, 209.587-034 (Marker), http://www.govtusa.com/dot/dot02a.html. Also troubling is
that the VE did not seem to understand the duties of a school bus monitor. As Plaintiff herself
had to point out to the VE during her testimony at the hearing, in Rhode Island, the job involves
constant going up and down stairs at each stop of the bus, Tr. 154, which the PT records make
clear is a function that is “slow and painful” for Plaintiff. Tr. 1152. In light of these concerns,
on remand, I recommend that a new VE opinion be procured.9
While I have not considered bending by a school bus monitor for purposes of the above recommendation, I note
my own observation that, in Rhode Island, for several years, school bus monitors also are required to bend deeply
and look under the bus at every stop; that this is a requirement for the job was confirmed by a recent (though now
expired) job posting, which states that a school bus monitor must have the ability to bend. Westerly Public Schools
2020 Job Posting, https://widget.schoolspring.com/job.cfm?jid=3382822. With an RFC limited to occasional
bending only, as the ALJ found, Tr. 20, or no bending as the PT records reflect, Tr. 1152, it is difficult to square the
VE’s testimony with what may be the current reality of the requirements for this position.
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Remand for Further Proceedings or Award of Benefits
Plaintiff argues that the evidence of disability is overwhelming and further proceedings
are not necessary. Therefore, she contends, the Court should simply award benefits. While
Plaintiff’s impairments appear to be very serious, indeed, potentially disabling, I disagree that
this is a case for an award of benefits.
The Court’s determination whether to remand for further proceedings or to award
benefits is a matter of discretion informed by whether the proof of disability is very strong and
there is no contrary evidence. Maricelys S. v. Saul, C.A. No. 18-479WES, 2019 WL 2950129, at
*7 (D.R.I. July 9, 2019), adopted, C.A. No. 18-479WES (D.R.I. Nov. 7, 2019). Courts generally
exercise the power to award benefits when it is “clear” from the record that the claimant is
entitled to benefits. Sacilowski, 959 F.3d at 437. This is based on the reality that remand for
further proceedings is unnecessary when the evidence of disability is “overwhelming” and there
is no contrary evidence to rebut it. Id. at 439-41.
There is no doubt that the record here is replete with substantial evidence on which a
finding of disability could be based. The problem is that there is also evidence pointing the other
way that the Court lacks the legal authority or medical acumen to weigh and consider. For
example, at some appointments, consistent with RA as a disease that waxes and wanes, Cruz,
2013 WL 795063, at *14, Dr. Garneau and other rheumatologists found mostly full strength, full
range of motion and little swelling or TTP. E.g., Tr. 439, 896. The record includes references to
activities that seem inconsistent with the finding of persistent lack of functionality. E.g., Tr.
1129 (“she went swimming which felt pretty good”); Tr. 1133 (“she went hiking yesterday”).
Some providers found Plaintiff’s strength to be largely intact. E.g., Tr. 408, 421, 524, 748.
Virtually all recorded her gait as normal. E.g., Tr. 408. And while the SA physicians produced
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their opinions based on a materially incomplete record, for purposes of the determination
whether to remand for further proceedings or for an award of benefits, the Court should consider
that four SA experts reviewed a significant portion of this file and reached findings supporting
the conclusion that Plaintiff is capable of work. Based on the mixed nature of this evidence, my
recommendation is that the Court should exercise its discretion to remand for further proceedings
rather than for an award of benefits.
Based on the foregoing analysis, I recommend that Plaintiff’s Motion for Reversal of the
Disability Determination of the Commissioner of Social Security (ECF No. 11) be GRANTED,
with remand for further proceedings, not for an award of benefits, and that Defendant’s Motion
for an Order Affirming the Decision of the Commissioner (ECF No. 13) be DENIED. Any
objection to this report and recommendation must be specific and must be served and filed with
the Clerk of the Court within fourteen (14) days of its receipt. See Fed. R. Civ. P. 72(b)(2); DRI
LR Cv 72(d). Failure to file specific objections in a timely manner constitutes waiver of the right
to review by the district judge and the right to appeal the Court’s decision. See United States v.
Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008); Park Motor Mart, Inc. v. Ford Motor Co., 616
F.2d 603, 605 (1st Cir. 1980).
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
January 8, 2021
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