Genelle D. v. Kijakazi
REPORT AND RECOMMENDATIONS recommending that Plaintiff's Motion to Reverse (ECF No. 10) be DENIED and that the Commissioner's Motion to Affirm (ECF No. 12) be GRANTED. I further recommend that Final Judgment enter in favor of Defendant. [ 12] MOTION to Affirm the Decision of the Commissioner With Supporting Memo filed by Kilolo Kijakazi. 10 MOTION to Reverse the Decision of the Commissioner filed by Genelle Dottor. Objections to R&R due by 11/29/2023. So Ordered by Magistrate Judge Lincoln D. Almond on 11/15/2023. (Noel, Jeannine)
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
KILOLO KIJAKAZI, Commissioner
Social Security Administration
C.A. No. 23-00075-MSM
REPORT AND RECOMMENDATION
Lincoln D. Almond, United States Magistrate Judge
This matter is before the Court for judicial review of a final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying Disability Insurance Benefits
(“DIB”) and Supplemental Security Disability Income (“SSDI”) under the Social Security Act (the
“Act”), 42 U.S.C. § 405(g). Plaintiff filed her Complaint on February 22, 2023 seeking to reverse
the Decision of the Commissioner. On July 28, 2023, Plaintiff filed a Motion to Reverse the
Decision of the Commissioner. (ECF No. 10). On August 28, 2023, Defendant filed a Motion to
Affirm the Commissioner’s Decision. (ECF No. 12). On October 11, 2023, Plaintiff filed a Reply
to the Commissioner’s Brief. (ECF No. 16).
This matter has been referred to me for preliminary review, findings, and recommended
disposition. 28 U.S.C. § 636(b)(1)(B); LR Cv 72. Based upon my review of the record, the parties’
submissions, and independent research, I find that there is substantial evidence in this record to
support the Commissioner’s decision and findings that Plaintiff is not disabled within the meaning
of the Act. Consequently, I recommend that Plaintiff’s Motion to Reverse (ECF No. 10) be
DENIED and that the Commissioner’s Motion to Affirm (ECF No. 12) be GRANTED.
Plaintiff filed an application for SSDI on December 8, 2020 (Tr. 206-215) and for DIB on
December 9, 2020 (Tr. 216-217) alleging disability since May 30, 2018. The Applications were
denied initially on January 19, 2021 (Tr. 56-63, 65-72) and on reconsideration on February 16,
2021. (Tr. 74-81, 83-90). Plaintiff requested an Administrative Hearing. On November 9, 2021,
a hearing was held before Administrative Law Judge Jason Mastrangelo (the “ALJ”) at which time
Plaintiff, represented by counsel, and a Vocational Expert (“VE”) appeared and testified. (Tr. 3554). The ALJ issued an unfavorable decision to Plaintiff on November 24, 2021. (Tr. 16-30). The
Appeals Council denied Plaintiff’s request for review on October 7, 2022. (Tr. 5-7). Therefore,
the ALJ’s decision became final. A timely appeal was then filed with this Court.
THE PARTIES’ POSITIONS
Plaintiff argues that remand is necessary because the ALJ’s findings are not supported by
the record and because the ALJ’s Step 4 and 5 findings are flawed.
The Commissioner responds that there are no errors of law, and the ALJ’s findings are
fully supported by the record and, thus, must be affirmed. In addition, the Commissioner asserts
that any potential Step 4 error is harmless on this record.
THE 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 – i.e., 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 HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam); Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st
Where the Commissioner’s decision is supported by substantial evidence, the court must
affirm, even if the court would have reached a contrary result as finder of fact. Rodriguez Pagan
v. Sec’y of HHS, 819 F.2d 1, 3 (1st Cir. 1987); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir.
1991). The court must view the evidence as a whole, taking into account evidence favorable as
well as unfavorable to the decision. Frustaglia v. Sec’y of HHS, 829 F.2d 192, 195 (1st Cir. 1987);
Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (court also must consider evidence detracting
from evidence on which Commissioner relied).
The court must reverse the ALJ’s decision on plenary review, however, if the ALJ applies
incorrect law, or if the ALJ fails to provide the court with sufficient reasoning to determine that
he or she properly applied the law. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam);
accord Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Remand is unnecessary where
all of the essential evidence was before the Appeals Council when it denied review, and the
evidence establishes without any doubt that the claimant was disabled. Seavey v. Barnhart, 276
F.3d 1, 11 (1st Cir. 2001) citing, Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
The court may remand a case to the Commissioner for a rehearing under sentence four of
42 U.S.C. § 405(g); under sentence six of 42 U.S.C. § 405(g); or under both sentences. Seavey,
276 F.3d at 8. To remand under sentence four, the court must either find that the Commissioner’s
decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the
law relevant to the disability claim. Id.; accord Brenem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980)
(remand appropriate where record was insufficient to affirm, but also was insufficient for district
court to find claimant disabled).
Where the court cannot discern the basis for the Commissioner’s decision, a sentence-four
remand may be appropriate to allow her to explain the basis for her decision. Freeman v. Barnhart,
274 F.3d 606, 609-610 (1st Cir. 2001). On remand under sentence four, the ALJ should review the
case on a complete record, including any new material evidence. Diorio v. Heckler, 721 F.2d
726, 729 (11th Cir. 1983) (necessary for ALJ on remand to consider psychiatric report tendered to
Appeals Council). After a sentence four remand, the court enters a final and appealable judgment
immediately, and thus loses jurisdiction. Freeman, 274 F.3d at 610.
In contrast, sentence six of 42 U.S.C. § 405(g) provides:
The court...may at any time order additional evidence to be taken
before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there
is good cause for the failure to incorporate such evidence into the
record in a prior proceeding;
42 U.S.C. § 405(g). To remand under sentence six, the claimant must establish: (1) that there is
new, non-cumulative evidence; (2) that the evidence is material, relevant and probative so that
there is a reasonable possibility that it would change the administrative result; and (3) there is good
cause for failure to submit the evidence at the administrative level. See Jackson v. Chater, 99 F.3d
1086, 1090-1092 (11th Cir. 1996).
A sentence six remand may be warranted, even in the absence of an error by the
Commissioner, if new, material evidence becomes available to the claimant. Id. With a sentence
six remand, the parties must return to the court after remand to file modified findings of fact. Id.
The court retains jurisdiction pending remand and does not enter a final judgment until after the
completion of remand proceedings. Id.
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 twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505. The impairment must be severe,
making the claimant unable to do her 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. §§ 404.1505-404.1511.
For applications like this one, filed on or after March 27, 2017, the Administration has
fundamentally changed how adjudicators assess opinion evidence.
The requirements that
adjudicators assign “controlling weight” to a well-supported treating source’s 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. See Shaw v. Saul, No. 19-cv-730-LM, 2020 WL 3072072, *45 (D.N.H. June 10, 2020) citing Nicole C. v. Saul, Case No. cv 19-127JJM, 2020 WL 57727, at
*4 (D.R.I. Jan. 6, 2020) (citing 20 C.F.R. § 404.1520c(a)). Under the newly applicable regulations,
an ALJ does not assign specific evidentiary weight to any medical opinion and does not defer to
the opinion of any medical source (including the claimant’s treating providers). 20 C.F.R. §§
404.1520c(a), 416.920c(a). Instead, the ALJ evaluates the relative persuasiveness of the medical
evidence in terms of five specified factors. Id.
The five factors the ALJ considers in evaluating the persuasiveness of a medical opinion
are supportability (the relevance of the opinion’s cited objective medical evidence), consistency
(how consistent the opinion is with all of the evidence from medical and non-medical sources),
treatment/examining relationship (including length of treatment relationship, frequency of
examinations, purpose of treatment relationship, and existence and extent of treatment/examining
relationship), specialization (the relevance of the source’s specialized education or training to the
claimant’s condition), and what the Administration refers to as “other factors” (the medical
source’s familiarity with the claimant’s medical record as a whole and/or with the Administration’s
policies or evidentiary requirements). Shaw, 2020 WL 3072072 at *4 citing 20 C.F.R. §§
404.1520c(c)(1)-(5), 416.920c(c)(1)-(5) (emphasis supplied). Of the five factors, the “most
important” are supportability and consistency. Id. §§ 404.1520c(a), 404.1520c(b)(2), 416.920c(a),
While the ALJ must consider all five of the factors in evaluating the persuasiveness of
medical evidence, when preparing the written decision, the ALJ is, in most cases, only required to
discuss application of the supportability and consistency factors.
Id. §§ 404.1520c(b)(2),
416.920c(b)(2). Only where contrary medical opinions are equally persuasive in terms of both
supportability and consistency is the ALJ required to discuss their relative persuasiveness in terms
of the treatment/examining relationship, specialization, and other factors. Id. §§ 404.1520c(b)(3),
416.920c(b)(3). In addition, where a single medical source offers multiple opinions, the ALJ is
not required to discuss each opinion individually, but instead may address all of the source’s
opinions “together in a single analysis.” Id. §§ 404.1520c(b)(1), 416.920c(b)(1).
Moreover, while the ALJ must consider all of the relevant evidence in the record, Id. §§
404.1520b(a)-(b), 416.920b(a)-(b), the ALJ need not discuss evidence from nonmedical sources,
including, e.g., the claimant, the claimant’s friends and family, educational personnel, and social
welfare agency personnel. Id. §§ 404.1502(e), 404.1520c(d), 416.902(j), 416.920c(d). And while
the regulations require the ALJ to discuss the relative persuasiveness of all medical source
evidence, Id. §§ 404.1520c(b), 416.920c(b), the claimant’s impairments must be established
specifically by evidence from an acceptable medical source, Id. §§ 404.1521, 416.921.
“Acceptable medical sources” are limited to physicians and psychologists, and (within
their areas of specialization or practice) to optometrists, podiatrists, audiologists, advanced
practice registered nurses, physician assistants, and speech pathologists. Id. §§ 404.1502(a),
Evidence from other medical sources, such as licensed social workers or
chiropractors, is insufficient to establish the existence or severity of a claimant’s impairments. Id.
Finally, the ALJ need not discuss evidence that is “inherently neither valuable nor persuasive,”
including decisions by other governmental agencies or nongovernmental entities, findings made
by state disability examiners at any previous level of adjudication, and statements by medical
sources as to any issue reserved to the Commissioner. Id. §§ 404.1520b(c), 416.920b(c).
Developing the Record
The ALJ has a duty to fully and fairly develop the record. Heggarty v. Sullivan, 947 F.2d
990, 997 (1st Cir. 1991). The Commissioner also has a duty to notify a claimant of the statutory
right to retained counsel at the social security hearing, and to solicit a knowing and voluntary
waiver of that right if counsel is not retained. See 42 U.S.C. § 406; Evangelista v. Sec’y of HHS,
826 F.2d 136, 142 (1st Cir. 1987). The obligation to fully and fairly develop the record exists if a
claimant has waived the right to retained counsel, and even if the claimant is represented by
counsel. Id. However, where an unrepresented claimant has not waived the right to retained
counsel, the ALJ’s obligation to develop a full and fair record rises to a special duty. See Heggarty,
947 F.2d at 997, citing Currier v. Sec’y of Health Educ. and Welfare, 612 F.2d 594, 598 (1st Cir.
Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant’s
medical sources do not give sufficient medical evidence about an impairment to determine whether
the claimant is disabled. 20 C.F.R. § 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th
Cir. 1986). In fulfilling his duty to conduct a full and fair inquiry, the ALJ is not required to order
a consultative examination unless the record establishes that such an examination is necessary to
enable the ALJ to render an informed decision. Carrillo Marin v. Sec’y of HHS, 758 F.2d 14, 17
(1st Cir. 1985).
The Five-step Evaluation
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §§
404.1520, 416.920. First, if a claimant is working at a substantial gainful activity, she is not
disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or
combination of impairments which significantly limit her physical or mental ability to do basic
work activities, then she 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, Subpart P, Appendix 1, she is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant’s
impairments do not prevent her from doing past relevant work, she is not disabled. 20 C.F.R. §
404.1520(e). Fifth, if a claimant’s impairments (considering her residual functional capacity, age,
education, and past work) prevent her from doing other work that exists in the national economy,
then she is disabled. 20 C.F.R. § 404.1520(f). 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 SSDI and
In determining whether a claimant’s physical and mental impairments are sufficiently
severe, the ALJ must consider the combined effect of all of the claimant’s impairments and must
consider any medically severe combination of impairments throughout the disability determination
process. 42 U.S.C. § 423(d)(2)(B). Accordingly, the ALJ must make specific and well-articulated
findings as to the effect of a combination of impairments when determining whether an individual
is disabled. Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993).
The claimant bears the ultimate burden of proving the existence of a disability as defined
by the Social Security Act. Seavey, 276 F.3d at 5. The claimant must prove disability on or before
the last day of her insured status for the purposes of disability benefits. Deblois v. Sec’y of HHS,
686 F.2d 76 (1st Cir. 1982), 42 U.S.C. §§ 416(i)(3), 423(a), (c). If a claimant becomes disabled
after she has lost insured status, her claim for disability benefits must be denied despite her
Once the ALJ finds that a claimant cannot return to her prior work, the burden of proof
shifts to the Commissioner to establish that the claimant could perform other work that exists in
the national economy. Seavey, 276 F.3d at 5. In determining whether the Commissioner has met
this burden, the ALJ must develop a full record regarding the vocational opportunities available to
a claimant. Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989). This burden may sometimes
be met through exclusive reliance on the Medical-Vocational Guidelines (the “grids”). Seavey,
276 F.3d at 5. Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily
from an exertional impairment, without significant non-exertional factors. Id.; see also Heckler v.
Campbell, 461 U.S. 458 (1983) (exclusive reliance on the grids is appropriate in cases involving
only exertional impairments, impairments which place limits on an individual’s ability to meet job
Exclusive reliance is not appropriate when a claimant is unable to perform a full range of
work at a given residual functional level or when a claimant has a non-exertional impairment that
significantly limits basic work skills. Nguyen, 172 F.3d at 36. In almost all of such cases, the
Commissioner’s burden can be met only through the use of a vocational expert. Heggarty, 947
F.2d at 996. It is only when the claimant can clearly do unlimited types of work at a given residual
functional level that it is unnecessary to call a vocational expert to establish whether the claimant
can perform work which exists in the national economy. See Ferguson v. Schweiker, 641 F.2d
243, 248 (5th Cir. 1981). In any event, the ALJ must make a specific finding as to whether the
non-exertional limitations are severe enough to preclude a wide range of employment at the given
work capacity level indicated by the exertional limitations.
“Pain can constitute a significant non-exertional impairment.” Nguyen, 172 F.3d at 36.
Congress has determined that a claimant will not be considered disabled unless he furnishes
medical and other evidence (e.g., medical signs and laboratory findings) 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
his 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 which reasonably could be expected to produce the pain
alleged, the ALJ must apply the First Circuit’s six-part pain analysis and consider the following
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 side-effects of any
Treatment, other than medication, for relief of pain;
Functional restrictions; and
The claimant’s daily activities.
Avery v. Sec’y of HHS, 797 F.2d 19, 29 (1st Cir. 1986). 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.
Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ must
articulate specific and adequate reasons for doing so, or the record must be obvious as to the
credibility finding. Rohrberg, 26 F. Supp. 2d at 309. A reviewing court will not disturb a clearly
articulated credibility finding with substantial supporting evidence in the record. See Frustaglia,
829 F.2d at 195. The failure to articulate the reasons for discrediting subjective pain testimony
requires that the testimony be accepted as true. See DaRosa v. Sec’y of Health and Human Servs.,
803 F.2d 24 (1st Cir. 1986).
A lack of a sufficiently explicit credibility finding becomes a ground for remand when
credibility is critical to the outcome of the case. See Smallwood v. Schweiker, 681 F.2d 1349,
1352 (11th Cir. 1982). If proof of disability is based on subjective evidence and a credibility
determination is, therefore, critical to the decision, “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 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.
APPLICATION AND ANALYSIS
The ALJ’s Decision
The ALJ decided this case adverse to Plaintiff at Steps 4 and 5. At Step 2, the ALJ
determined that Plaintiff had the following severe impairments: spine disorder, status-post tibial
fracture, and status-post ankle fracture. (Tr. 22). Alcohol dependence, alcohol-related pancreatitis,
obesity and anemia were non-severe impairments. (Tr. 22-23). The ALJ assessed an RFC for a
limited range of light work. (Tr. 24). Based on this RFC and opinion testimony from the VE, the
ALJ found at Step 4 that Plaintiff could perform her past relevant work as a billing analyst, a semiskilled sedentary job. (Tr. 28). The ALJ also went on to make an alternate Step 5 finding that
Plaintiff was not disabled because she was also capable of performing certain unskilled, light and
sedentary jobs available in the economy. (Tr. 29).
Plaintiff Has Not Shown Any Step 4 or 5 Error Warranting Remand
First, Plaintiff argues that the Step 4 finding is flawed because the ALJ misidentifies her
past work as “billing analyst” and not “billing typist.” (ECF No. 10 at pp. 18-19). Plaintiff herself
identified her past work as “analyst” (Tr. 41) and “billing analyst.” (Tr. 339-340). At the hearing,
the ALJ specifically asked the VE to “characterize the past work that I previously identified as the
billing analyst,” and the VE unequivocally responded that Plaintiff worked as a “billing typist,
[DOT] 214.382-014, with an SVP of 4.” (Tr. 49). The VE also opined that Plaintiff’s RFC, as set
forth in a hypothetical posed by the ALJ, did not preclude this work as customarily performed.
(Tr. 50). That testimony provides a sufficient basis for the ALJ’s Step 4 finding, (Tr. 28), and any
confusion as to the specific job title is harmless error at worst. It is clear from the record that
everyone was talking about the same job, regardless of the title, and that the VE unequivocally
opined that Plaintiff’s RFC did not preclude that work. There is no error.
Second, Plaintiff argues that the Step 4 finding is erroneous because of an inconsistency
between the RFC and the hypothetical posed to the VE. (ECF No. 10 at pp. 20-21). While there
is a minor discrepancy between the two, the Commissioner persuasively argues that such deviation
is not outcome determinative and, thus, not cause for remand. (ECF No. 12 at pp. 13-14). The
discrepancy involves exposure to workplace hazards such as machinery and heights. Since jobs
relevant to the ALJ’s Step 4 or 5 findings (billing typist, laundry folder, order clerk, charge account
clerk, telephone quotation clerk (Tr. 50-51)), do not involve exposure to such hazards, the
Commissioner persuasively argues that the absence of a limitation in the hypothetical to avoid
them is immaterial. See Perez v. Colvin, No. 13-30204-KPN, 2014 WL 6905599, at *2 (D. Mass.
Dec. 4, 2014) (finding harmless error and noting that “even were the ALJ’s hypothetical identical
to his RFC assessment, the [VE] would no doubt have identified the very same jobs that Plaintiff
could perform and upon which the ALJ could rely.”) (citations omitted).
Finally, Plaintiff faults the ALJ for making an alternate Step 5 finding unfavorable to her,
arguing that it is not permitted by the Regulations. However, such alternate findings are routinely
made by ALJs and promote clarity and efficiency. This Court recently recognized that “[a]lthough
the First Circuit has not yet specifically addressed the question, the district courts in this Circuit
have uniformly held that an ALJ may make alternative findings at Steps Four and Five and, if there
is error at Step Four, it is harmless as long as the ALJ’s alternative Step Five finding is sustained.”
Patrick F. v. Kijakazi, No. 22-212MSM, 2023 WL 2770389, at *8 (D.R.I. April 4, 2023) (citations
The ALJ’s RFC Finding is Supported by Substantial Evidence and Must Be
It is undisputed that the only medical opinion evidence in the record comes from the State
Agency Consulting Physicians, Dr. Hall and Dr. Pressman. (Exhs. 2A and 6A). There are no
treating source opinions to either contradict the opinions of Dr. Hall and Dr. Pressman or to
corroborate Plaintiff’s allegations regarding her pain and limitations. (Tr. 27).
First, the ALJ found the opinions of Dr. Hall and Dr. Pressman to be “informed, supported
and fully persuasive, as they are consistent with the record as a whole, and are based on their
particular and detailed knowledge and expertise of the standard of disability as set forth by the
Commissioner, with the exception that [Plaintiff] never regained the ability to stand/walk for 6
hours in an 8-hour workday.” (Tr. 27). Plaintiff has not shown any legal error in the ALJ’s analysis
or lack of sufficient support in the record for his findings.
Plaintiff’s argument is also undermined by factual errors. Plaintiff argues that there is “no
evidence that Dr. Pressman reviewed [her] records.” (ECF No. 10 at p. 10). However, Dr.
Pressman electronically signed his opinion stating that he had “reviewed the provided [medical
record] in its entirety and the assessment by Dr. James Hall on 01/17/2021 is affirmed as written.
RFC unchanged.” (Tr. 75, 84). Further, the opinion form in question plainly identifies the records
obtained and denotes which were present on initial review and newly obtained for reconsideration
by Dr. Pressman. (Compare Tr. 56-57, 65-66 with Tr. 75-76, 83-84). See Pierce v. Astrue, No.
1:10-cv-242-JAW, 2011 WL 2678919, at *4 (D.Me. July 7, 2011), R&R adopted, 2011 WL
3270251 (D.Me. July 29, 2011) (“[T]he language of the standardized form [for state agency
consulting opinions] suggests that a nonexamining consultant should be presumed to have
reviewed all then-available file evidence absent an indication otherwise.”).
Plaintiff also claims that the ALJ “did not, in fact, review the state agency consultant
records in detail.” (ECF No. 10 at p. 11). However, the argument is unsupported and based upon
a misreading of the record. In effect, Plaintiff confuses findings pertaining to different periods
under consideration for Plaintiff’s SSDI and DIB applications. (Compare Tr. 67-68 related to
period 9/23/20-9/22/21 with Tr. 78 related to period 5/30/18-9/22/20). Plaintiff incorrectly reads
these findings as Dr. Hall finding no stand/walk limitation, while Dr. Pressman found a four-hour
stand/walk limitation. (ECF No. 10 at p. 11). In short, the record actually reflects that Dr.
Pressman adopted Dr. Hall’s RFC, and there was no difference as claimed by Plaintiff. The
difference was that the physicians assessed RFCs for two different time periods and found that
Plaintiff had improved slightly and was somewhat less limited as to stand/walk in the more recent
period. (Exhs. 2A, 4A, 6A and 8A). Since the ALJ ultimately adopted the more restrictive RFC
with the four-hour stand/walk limitation, this is an exercise in futility for Plaintiff with no possible
Absent any persuasive and supported challenge to the ALJ’s treatment of the opinions of
Dr. Pressman and Dr. Hall, Plaintiff’s only potential attack on the ALJ’s RFC finding is that he
should have adopted a more limited RFC based on her statements of pain and other symptoms. In
his Decision, the ALJ found that Plaintiff’s statements were not entirely consistent with the record
and that the medical evidence does not fully support Plaintiff’s complaints as to symptom severity,
functional limitations, and resulting disability. (Tr. 25).
Plaintiff argues that the ALJ did not “adequately consider the totality of the medical and
non-medical evidence of record” in discounting her pain complaints. (ECF No. 16 at p. 1). She
argues that the ALJ disregarded significant portions of the medical record that supported her
complaints. Id. at p. 4. Finally, she contends that the ALJ compounded this error by failing to
adequately support his decision to discount her otherwise unrefuted descriptions of her limited
activities of daily living. Id.
There is no doubt that Plaintiff had a difficult two-year medical period from late 2018 to
late 2020. It started with a fall from a stone wall on December 8, 2018 that resulted in a right leg
break and related injuries which required surgery. She was later diagnosed with a herniated disc
in April 2019 and had back surgery shortly thereafter. Finally, in September 2020, Plaintiff fell
after stepping into a pothole and fractured her right ankle which required surgery. It is also
undisputed that those impairments could reasonably be expected to cause pain and other limitations
which is why the ALJ limited Plaintiff to a reduced range of light work. The parties differ as to
the extent of such pain and limitations, and the issue presented is whether the ALJ’s conclusions
are supported by substantial evidence. See Bennett v. Berryhill, 256 F.Supp.3d 93, 97 (D. Mass.
June 20, 2017) (“[A]s the Commissioner’s determinations are ‘supported by substantial evidence,’
they must be affirmed, ‘even if the record…could justify a different conclusion.’”) (quoting
Rodriguez Pagan, 819 F.2d at 3).
Plaintiff’s argument here is largely a request that the Court engage in an improper
reweighing of the evidence. Barbosa v. Berryhill, C.A. No. 16-168S, 2017 WL 1233833, at *7
(D.R.I. Feb. 15, 2017), adopted, 2017 WL 1233819 (D.R.I. Apr. 3, 2017). This Court reviews the
ALJ’s subjective symptom evaluation with deference. Frustaglia, 829 F.2d at 195. Plaintiff has
failed to show that the reasons articulated in the ALJ’s decision regarding her pain did not meet
the “substantial” threshold as articulated in Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).
While reasonable minds might disagree as to the weight accorded to Plaintiff’s complaints,
Plaintiff has not shown any legal error or lack of record support for the ALJ’s findings. The ALJ
thoroughly discussed the medical record and clearly summarized the reasons he found Plaintiff’s
complaints only “partially consistent” with the record. (Tr. 27).
The ALJ acknowledged Plaintiff’s fall in December 2018, which resulted in knee surgery
(Tr. 25, 572), but then cited the May 17, 2019 imaging of Plaintiff’s knee showing normal
alignment and a healing fracture. (Tr. 25, 2022). During physical therapy in June 2019, Plaintiff
reported she was told to try to wean off her crutches and walking boot. (Tr. 25, 1654). By
November 2019, Plaintiff reported independent ambulation and used the “cruising method” with
upper extremity support due to a lack of confidence. (Tr. 25, 1585). At a subsequent visit, Plaintiff
again reported independent walking in her home, though she still used crutches due to a lack of
confidence. (Tr. 25, 1591).
Following the 2020 right-ankle injury, Plaintiff indicated to Dr. Hayda that she had been
full-weight bearing from the prior injury for six months. (Tr. 26, 2113). At a subsequent visit,
Plaintiff indicated she had been walking without an assistive device prior to her ankle injury. (Tr.
26, 2141). The ALJ also noted her November 2020 visit with Dr. Levins where she was doing
well but still not weight-bearing. (Tr. 26, 571). Approximately two months later, Dr. Levins
reported that imaging showed a healed right ankle. (Tr. 26, 2170). A month following that
appointment, Plaintiff was told to wean from her walking boot. (Tr. 26, 2175-2177).
In May 2021, Plaintiff reported feeling much better after her last treatment in physical
therapy. (Tr. 26, 1560). At this visit, Plaintiff denied any functional limitations in performing
daily tasks. (Tr. 1560). In June 2021, Plaintiff informed Dr. Troise that she was doing better. (Tr.
27, 1717). While Plaintiff continued to wear a walking boot, musculoskeletal examination
revealed normal tone and motor strength, no malalignment or tenderness in joints, no edema, and
normal gait. (Tr. 27, 1717).
Finally, the ALJ accurately noted that there was no objective evidence or medical-source
opinions to corroborate Plaintiff’s allegations. (Tr. 27). See, e.g., Mosconas v. Saul, No. 19-2049,
2020 WL 6255298, at *1 (1st Cir. Sept. 15, 2020) (“Appellant had the burden of establishing the
extent of her limitations which the ALJ then used to determine her RFC. The Commissioner
merely had the burden of showing that her RFC, so determined, permitted substantial gainful
activity.”); and Kellilea F. v. Kijakazi, No. 21-410-JJM, 2022 WL 2128625, at *8 (D.R.I. June 14,
2022) (“Plaintiff does not point to any opinion finding that she would miss work or be off task in
a way that conflicts with the ALJ’s RFC finding and would support her burden of proof”).
Plaintiff also argues that the RFC should have included a limitation to using a cane or
walker based solely on her statements that she used one. (Tr. 41). However, “[t]o find that a handheld assistive device is medically required, there must be medical documentation establishing the
need for a hand-held assistive device to aid in walking or standing, and describing the
circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain
situations; distance and terrain; and any other relevant information).” SSR 96-9p, 1996 WL
374185, at *7 (July 2, 1996). It is Plaintiff’s burden to demonstrate an assistive device was
medically required, including providing medical documentation describing the circumstances for
which it is needed. Plaintiff has not met that burden here. There is no medical documentation
regarding the need for a cane or other assistive device. In fact, Plaintiff was instructed to wean off
assistive devices. (Tr. 1574, 1654). Given Plaintiff’s statements that her use of an assistive device
when walking was based on confidence rather than pain and the dearth of medical evidence to
support the need for any assistive device, her argument that the ALJ erred in not providing for use
of a cane in the RFC is unsupported.
For the reasons discussed herein, I recommend that Plaintiff’s Motion to Reverse (ECF No.
10) be DENIED and that the Commissioner’s Motion to Affirm (ECF No. 12) be GRANTED. I
further recommend that Final Judgment enter in favor of Defendant.
Any objection to this Report and Recommendation must be specific and must be filed with
the Clerk of the Court within fourteen days of its receipt. See Fed. R. Civ. P. 72(b); LR Cv 72.
Failure to file specific objections in a timely manner constitutes waiver of the right to review by
the District Court and the right to appeal the District Court’s decision. See United States v.
Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, In. v. Ford Motor Co., 616 F.2d
603, 605 (1st Cir. 1980).
/s/ Lincoln D. Almond
LINCOLN D. ALMOND
United States Magistrate Judge
November 15, 2023
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