Doreen S. v. Commissioner, Social Security Administration

Filing 20

MEMORANDUM AND ORDER granting 12 Motion to Reverse, Modify or Remand Decision of the Commissioner to the extent it seeks remand for rehearing; denying 14 Motion to Affirm the Decision of the Commissioner; declining to adopt 17 Report and Recommendations. So Ordered by District Judge William E. Smith on 5/27/2021. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
DOREEN S.,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 20-128 WES
)
ANDREW M. SAUL, Commissioner,
)
Social Security Administration,
)
)
Defendant.
)
___________________________________)
MEMORANDUM AND ORDER
In

a

decision

denying

Plaintiff’s

application

for

Supplemental Security Income (“SSI”), an administrative law judge
(“ALJ”) applied an erroneous standard for determining the weight
to give to the opinion of Plaintiff’s treating physician.

As

explained

be

below,

Plaintiff’s

benefits

application

successful if analyzed under the correct standard.

may

Therefore,

Plaintiff’s Motion to Reverse the Decision of the Commissioner,
ECF No. 12, is GRANTED to the extent that it seeks remand for
rehearing, and Defendant’s Motion to Affirm the Decision of the
Commissioner, ECF No. 14, is DENIED. 1

The Court sustains in part Plaintiff’s Objections to the
Report and Recommendation, ECF No. 18, and declines to adopt the
Report and Recommendation, ECF No. 17.
1

I.

BACKGROUND
In 2018, Plaintiff applied for SSI, claiming that she had

been

disabled

since

2008.

See

Corrected

Administrative Record (“R.”) 13, ECF No. 15. 2
denied.

Id. at 13.

Social

Security

Her application was

At a later hearing, an ALJ granted Plaintiff’s

request to reopen a previous SSI application from March 22, 2017.
Id.

Plaintiff also amended her application to allege that she

became disabled on March 22, 2017, rather than in 2008.
the

hearing,

the

ALJ

vocational expert.

heard

testimony

from

Id.

Plaintiff

At

and

a

Id.

The ALJ found that Plaintiff had two severe impairments,
chronic obstructive pulmonary disease (“COPD”) and vertigo, and
multiple non-severe impairments.

R. 16-17.

Nonetheless, the ALJ

found that Plaintiff retained the residual functional capacity to
be a fast food worker, a job she held in 2004 and 2005.
16, 18-22.

Id. at

To reach this conclusion, the ALJ relied on the

opinions of two state agency medical consultants - who opined that
Plaintiff had the requisite capacity for that work - over the
opinions

of

Plaintiff’s

pulmonologist

and

other

treatment

providers - who believed her capacity to be more limited.

See id.

at 20-21, 84-85, 94-95, 105-06, 116-18, 128-130, 372-389.

The

Plaintiff also applied for Disability Insurance Benefits
but later withdrew that application. R. 13.
2

2

vocational

expert

testified

that,

at

the

residual

functional

capacity opined by Plaintiff’s pulmonologist, Plaintiff would be
unable to hold a job as a fast food worker.

See id. at 71-72,

374-75.
Additionally,

the

regarding her symptoms.
her

“medically

expected

to

ALJ

discounted

See id. at 19.

determinable

cause

the

Plaintiff’s

He found that, although

impairments

alleged

testimony

could

symptoms[,]”

reasonably
her

be

“statements

concerning the intensity, persistence and limiting effects of
these symptoms [we]re not entirely consistent with the medical
evidence.”

Id. at 19.

The ALJ therefore found that Plaintiff was not disabled.
at 22.

Id.

The Appeals Council denied her request for review, thus

issuing a final decision ripe for review under 42 U.S.C. § 405(g).
See id. at 1.
II.

LEGAL STANDARDS
The

Commissioner’s

factual

findings

supported by substantial evidence.”

are

conclusive

42 U.S.C. § 405(g).

questions, on the other hand, are reviewed de novo.
Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).

“if

Legal

Seavey v.

Where, as here, the Court

has referred a dispositive matter to a magistrate judge for report
and recommendation, the Court “must determine de novo any part of
the magistrate judge’s disposition that has been properly objected
to.”

Fed. R. Civ. P. 72(b)(3).
3

III. DISCUSSION
Plaintiff contends that the ALJ erred both by affording too
little

weight

to

the

opinion

of

her

pulmonologist

and

discounting Plaintiff’s testimony regarding her symptoms.

by
See

Mem. Supp. Pl.’s Mot. Reverse 7, 14, ECF No. 12-1.
A.

Weight of Treating Physician’s Testimony

For

cases

filed

prior

to

March

27,

2017,

a

treating

physician’s opinion is given controlling weight if it is “wellsupported

by

medically

acceptable

clinical

and

laboratory

diagnostic techniques and is not inconsistent with the other
substantial

evidence

§ 416.927(c)(2).

in

[the]

case

record.”

20

C.F.R.

Where an ALJ does not give controlling weight to

a treating physician’s opinion, the ALJ is instructed to “consider
all of the following factors in deciding the weight” to give the
opinion:

the “[l]ength of the treatment relationship and the

frequency of examination[,]” the “[n]ature and extent of the
treatment relationship[,]” the “[s]upportability” of the opinion
(i.e.,

clinical

observations,

laboratory

findings,

and

explanations), the consistency of the opinion with the record as
a whole, whether the physician is a specialist in the medical area
at issue, and any other relevant factors.

Id. § 416.927(c).

Furthermore, the ALJ is required to “give good reasons . . . for
the weight [given to a] treating source’s medical opinion.”
§ 416.927(c)(2).
4

Id.

Conversely, for cases filed on or after March 27, 2017, an
ALJ “will not defer or give any specific evidentiary weight,
including controlling weight, to any medical opinion(s) . . . ,
including those from [the applicant’s] medical sources.” 20 C.F.R.
§ 416.920c(a).
regulation

The

are

the

most

important

supportability

factors
of

the

consistency with the other record evidence.
(c).

under

the

opinion

newer

and

its

Id. § 416.920c(b),

An ALJ “may, but [is] not required to, explain how [the ALJ]

considered” factors other than supportability and consistency.
Id. § 416.920c(b)(2).
Plaintiff’s original SSI application was filed on March 22,
2017.

R. 13.

Thus, this case is governed by the older regulation,

which

gives

greater

physicians.

deference

to

the

opinions

See 20 C.F.R. § 416.927(c)(2).

of

treating

However, the ALJ

applied the newer standard, stating, “we will not defer or give
any specific evidentiary weight, including controlling weight, to
any prior administrative medical finding(s) or medical opinion(s),
including those from your medical sources.”

R. 20.

As both parties agree, this misstep was an error of law.
Mem. Supp. Pl.’s Mot. Reverse 7-8; Def.’s Mot. Affirm 10.

See

Yet the

Commissioner contends that the ALJ’s error was “harmless . . .
because his evaluation of the medical opinions pass [sic] muster

5

under the old regulations and interpretive case law.” 3
Mot. Affirm 10 (citations omitted).

See Def.’s

Plaintiff disagrees, arguing

that application of the correct standard would in fact change the
outcome,

and

that

this

Court

would

exceed

its

authority

by

assessing whether Plaintiff would have succeeded under the correct
standard.

See Pl.’s Objs. to R. & R. 2. 4

“While an error of law by the ALJ may necessitate a remand,
a remand is not essential if it will amount to no more than an
empty exercise.”

Ward v. Commr. of Soc. Sec., 211 F.3d 652, 656

(1st Cir. 2000) (citations omitted).

In other words, “[w]here

application of the correct legal standard could lead to only one
conclusion,” remand is not necessary.

Id. (quoting Schaal v.

Apfel, 134 F.3d 496, 504 (2d Cir. 1998)).

However, “[w]hen an

As the First Circuit has explained, the harmless error
doctrine applies to evidentiary errors, not errors of law. Ward
v. Commr. of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000).
Therefore, the Court “understand[s] the [Commissioner] to mean, in
a colloquial sense, that there was no harm from the ALJ’s use of
an erroneous ground of decision because there was an independent
ground on which affirmance must be entered as a matter of law.”
Id. (citations omitted).
3

The Commissioner also argues that Plaintiff’s Objections to
the Report and Recommendation should be rejected because they
retread ground already covered in her Motion to Reverse.
See
Def.’s Resp. to Pl.’s Objs. to R. & R. 2. The Commissioner has
the rule backwards.
As explained in the First Circuit opinion
cited by the Commissioner, a party’s objections to a report and
recommendation must be limited to arguments previously raised.
See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840
F.2d 985, 990–91 (1st Cir. 1988) (“[A] party [cannot be] allowed
to feint and weave at the initial hearing, and save its knockout
punch for the second round.”).
4

6

agency

has

not

considered

all

relevant

factors

in

taking

action, . . . the reviewing court ordinarily should remand the
case to the agency.”

Seavey, 276 F.3d at 12 (Fla. Power & Light

Co. v. Lorion, 470 U.S. 729, 744 (1985)).
Here, under the applicable standard, the ALJ was required to
give controlling weight to the pulmonologist’s opinion unless
(1) the opinion was not well-supported or (2) it was inconsistent
with other substantial evidence in the record.
416.927(c)(2).
However,

the

See 20 C.F.R. §

The ALJ did not explicitly make either finding.
ALJ

stated

that

the

pulmonologist’s

opinion

“contradict[ed] the State agency medical consultants’ opinions,”
finding “that the limitations addressed by the State agency are
more consistent with the longitudinal medical evidence of record
than that of [the treating pulmonologist].”
impliedly

found

the

reports

of

the

R. 20.

state

Thus, the ALJ

consultants

to

be

substantial pieces of evidence that were inconsistent with the
pulmonologist’s opinion.

See R. 20.

The Court concludes that

there was sufficient evidence to support this finding.

See R. 82-

85, 91-95, 102-06, 114-18, 126-130; see also Pelletier v. Colvin,
CA 13-651 ML, 2015 WL 247711, at *14 (D.R.I. Jan. 20, 2015) (“The
expert opinion of a non-examining source . . . may amount to
substantial evidence where it represents a reasonable reading of
the entirety of the relevant medical evidence.” (citing 20 C.F.R.

7

§ 404.1527(e)).

Thus, it is unlikely that the ALJ would give

controlling weight to the pulmonologist’s opinion on remand.
However, under the applicable regulation, an opinion that is
not given controlling weight must still be evaluated under the
factors listed in 20 C.F.R. § 416.927(c).
were not analyzed in the ALJ’s decision.

Some of those factors
This is not surprising,

as the erroneously applied regulation does not require these
missing factors to be discussed.

See 20 C.F.R. § 416.920c(b)(2).

For example, under the pertinent regulation, the opinion of a
physician who has examined the applicant is weighed more heavily
than

the

opinion

§ 416.927(c)(1).

of

a

The

non-examining
ALJ

found

the

source.
opinions

See

20

C.F.R.

of

the

state

consultants to be more “persuasive” than those of the treating
pulmonologist without discussing the fact that the consultants had
not examined Plaintiff.

See R. 20.

Additionally, the applicable

regulation favors opinions from treating sources because “these
sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the applicant’s]
medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations.”
C.F.R. § 416.927(c)(2).

20

Although the ALJ acknowledged that the

pulmonologist was a treating source and that the consultants were
not, he did not grapple with the prior regulation’s preference for
8

a treatment provider’s perspective.

See R. 20-21.

Lastly, under

the older regulation, an ALJ should “give more weight to the
medical opinion of a specialist about medical issues related to
his or her area of specialty than to the medical opinion of a
source who is not a specialist.” 20 C.F.R. § 416.927(c)(5). Here,
the primary impairment at issue was chronic obstructive pulmonary
disease

(“COPD”),

expertise.

clearly

within

pulmonologist’s

area

of

The state consultants do not appear to have any

specialization in this area. 5
certainly

the

aware

of

the

See R. 85, 118.

pulmonologist’s

While the ALJ was

specialty,

the

ALJ’s

decision gives no indication that the pulmonologist’s opinion was
afforded any deference based on that specialization.

See id. at

20-21.
Thus, there is good reason to believe that, had the ALJ
applied the correct standard, he would have given additional weight
to the treating physician’s opinion.

Given the pivotal importance

of that opinion, the Court concludes that remand would not be an
empty exercise.

The Commissioner’s final decision is therefore

vacated for reconsideration under the appropriate regulation.
B.

Subjective Symptoms

Next, Plaintiff argues that the ALJ erred in discounting her
testimony regarding the severity of her symptoms.

See Mem. Supp.

Plaintiff states that the consultants are internists.
Pl.’s Objs. to R. & R. 6 (citations omitted).
5

9

See

Pl.’s Mot. Reverse 14; Pl.’s Objs. to R. & R. 2, 9.
“evaluate
symptoms

the
such

intensity
as

pain

and

and

persistence

determine

the

of

An ALJ must

an

individual’s

extent

to

which

an

individual’s symptoms limit his or her ability to perform workrelated activities.”
of

this

inquiry,

SSR 16–3p, 82 Fed. Reg. at 49464.
the

ALJ

must

consider,

inter

As part

alia,

the

“individual’s statements about the intensity, persistence, and
limiting effects of symptoms.”

Id.; see generally Coskery v.

Berryhill, 892 F.3d 1, 4 (1st Cir. 2018) (discussing SSR 16–3p and
its

predecessor).

individual’s

Moreover,

statements

about

an

ALJ

the

“will

intensity,

not

disregard

persistence,

an
and

limiting effects of symptoms solely because the objective medical
evidence does not substantiate the degree of impairment-related
symptoms alleged by the individual.”

SSR 16–3p, 82 Fed. Reg. at

49465.
Here, Plaintiff testified that she experiences shortness of
breath, shakiness, and dizziness.

R. 18-19.

Additionally, she

stated that she sometimes needs to lie down for long stretches of
time due to difficulty breathing.

Id. at 18.

The ALJ found that

Plaintiff’s medical conditions could reasonably be expected to
cause those symptoms.
those

symptoms

were

Id. at 19.
“inconsistent

However, he determined that
because

evidence of record d[id] not support them.”

the
Id.

longitudinal
The Court

concludes that there is substantial (though not overwhelming)
10

evidence to support that determination. See id. and records cited.
Therefore, the ALJ’s decision to discredit Plaintiff’s testimony
does not provide an independent basis to reverse or vacate.
Nonetheless, as explained above, the ALJ must reevaluate the
weight

given

to

the

pulmonologist’s

opinion

on

remand.

The

pulmonologist took a dimmer view of Plaintiff’s physical abilities
than did the state consultants.

If the pulmonologist’s opinion

were given more weight, it would help corroborate Plaintiff’s
testimony
regarding

regarding

her

Plaintiff’s

symptoms.
subjective

Thus,

the

symptoms

ALJ’s

findings

should

also

be

Decision

of

the

reconsidered on remand.
IV.

CONCLUSION
Plaintiff’s

Motion

to

Reverse

the

Commissioner, ECF No. 12, is GRANTED to the extent that it seeks
remand for rehearing, and Defendant’s Motion to Affirm the Decision
of the Commissioner, ECF No. 14, is DENIED.

Pursuant to sentence

four of 42 U.S.C. § 405(g), the Commissioner’s decision is vacated,
and the matter is remanded for further proceedings.
IT IS SO ORDERED.

William E. Smith
District Judge
Date: May 27, 2021

11