Charbonneau v. Social Security Administration, Commissioner

Filing 27

OPINION AND ORDER: The Court DENIES Plaintiff's 17 Motion to Reverse Decision of Commissioner, and GRANTS Defendant's 22 Motion for Order Affirming Decision of Commissioner. Signed by Judge John M. Conroy on 1/31/2012. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Karen Charbonneau,
Plaintiff,
v.

Civil Action No. 2:11-CV-9

Michael J. Astrue,
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 17, 22)
Plaintiff Karen Charbonneau brings this action pursuant to 42 U.S.C. § 405(g) of
the Social Security Act, requesting review and remand of the decision of the
Commissioner of Social Security (“Commissioner”) denying her application for disability
insurance benefits. Pending before the Court are Charbonneau’s motion to reverse the
Commissioner’s decision (Doc. 17), and the Commissioner’s motion to affirm the same
(Doc. 22). For the reasons stated below, the Court DENIES Charbonneau’s motion, and
GRANTS the Commissioner’s motion.
Background
Charbonneau was forty-eight years old on her alleged disability onset date of
December 13, 2007. She completed school through the eighth grade, and thereafter
obtained a graduate equivalency degree (GED) and special job training in office
management. She has been employed as a “kitchen worker” in a public school, and as a
pharmacy technician for approximately eleven years. (AR 132.)

Charbonneau had a traumatic childhood, stemming from her mother’s and other
family members’ substance abuse, and including being sexually molested by her foster
father. She has been married twice, and has three sons and a daughter. During the
alleged disability period, she resided with her husband and adult daughter. In 2005,
Charbonneau began seeking mental health treatment, and was diagnosed with anxiety and
depression. In December 2007, she was involved in a motor vehicle accident, resulting in
lower back pain with severe spasms, which exacerbated her depression. Treatment for
the back pain included but was not limited to attending physical therapy, wearing a
TENS1 unit, receiving epidural injections, and taking narcotics. In February 2009,
Charbonneau elected to have surgery to remove two small cerebral aneurysms which had
been causing her anxiety and migraine headaches. Since then, she has not had treatment
for the aneurysms. In June 2009, Charbonneau fell, worsening her back pain and, in turn,
her depression. In addition to her back pain and depression, Charbonneau has suffered
from obstructive sleep apnea, hypertension, migraine headaches, and obesity.
On September 12, 2008, Charbonneau protectively filed an application for
disability insurance benefits. Therein, she alleged that, starting on December 13, 2007,
the date of her motor vehicle accident, she has been unable to work due to lower back
pain, left hip and leg pain, buttock pain, and depression. (AR 131.) She further alleged
that she has been unable to stand without pain for more than thirty-to-forty-five minutes
1

“TENS” is the acronym for Transcutaneous Electrical Nerve Stimulation, which is “a method
of reducing pain by passage of an electric current.” STEDMAN’S MEDICAL DICTIONARY 1838 (28th ed.
2006). “A ‘TENS unit’ is a pocket size, portable, battery-operated device that sends electrical impulses to
certain parts of the body to block pain signals.” Verhow v. Astrue, No. 08-CV-6423-CJS, 2009 WL
3671665, at *8 n.5 (W.D.N.Y. Oct. 29, 2009).

2

at a time, and has been unable to sit and walk without pain for extended periods of time.
(Id.) Charbonneau’s application was denied initially and upon reconsideration, and she
timely requested an administrative hearing. The hearing was conducted on May 25, 2010
by Administrative Law Judge (“ALJ”) Paul Martin. (AR 543-82.) Charbonneau
appeared and testified, with the assistance of a non-attorney representative. A vocational
expert (“VE”) also testified at the hearing. On September 1, 2010, the ALJ issued a
decision finding that Charbonneau was not disabled under the Social Security Act from
her alleged onset date of December 13, 2007 through the date of the decision. (AR 8-19.)
A few months later, the Decision Review Board (“DRB”) affirmed the ALJ’s decision,
with supplementation. (AR 1-4.) Having exhausted her administrative remedies,
Charbonneau filed the Complaint in this action on January 12, 2011. (Doc. 3.)
ALJ/DRB Determination
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in “substantial
gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so
engaged, step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant
has a severe impairment, the third step requires the ALJ to make a determination as to
whether the claimant’s impairment “meets or equals” an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d).
The claimant is presumptively disabled if the impairment meets or equals a listed
3

impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the fourth step requires the ALJ to
consider whether the claimant’s residual functional capacity (“RFC”) precludes the
performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f).
Finally, at the fifth step, the ALJ determines whether the claimant can do “any other
work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant bears the burden of proving
his or her case at steps one through four, Butts, 388 F.3d at 383; and at step five, there is a
“limited burden shift to the Commissioner” to “show that there is work in the national
economy that the claimant can do,” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)
(clarifying that the burden shift to the Commissioner at step five is limited, and the
Commissioner “need not provide additional evidence of the claimant’s [RFC]”).
Employing this sequential analysis, ALJ Martin first determined that Charbonneau
had not engaged in substantial gainful activity since her alleged onset date of December
13, 2007. (AR 10.) At step two, the ALJ found that Charbonneau had the following
severe impairments: degenerative disc disease of the lumbar spine, status post transient
ischemic attack and aneurysm, and depressive disorder with panic. (AR 11.)
Conversely, the ALJ found that Charbonneau’s obstructive sleep apnea was non-severe,
given that a March 2008 sleep study indicated the disorder was resolved, and
Charbonneau had reported that CPAP therapy enabled her to sleep through the night.
(Id.) At step three, the ALJ found that none of Charbonneau’s impairments, alone or in
combination, met or medically equaled a listed impairment. (AR 11-12.)

4

Next, the ALJ determined that Charbonneau had the RFC to perform light work,
as defined in 20 C.F.R. § 404.1567(b), except as follows:
[Charbonneau] requires the ability to alternate between sitting and standing.
[She] is to avoid all climbing of ladders, ropes, or scaffolds, but occasional
postural activities otherwise [sic]. She is limited to unskilled work and
could manage routine workplace changes, and sustain concentration,
persistence, and pace for up to two-hour periods during the workday with
short 5-10 minute breaks every two hours. She would have no problems
relating with coworkers and supervisors but should avoid excessive contact
with the public.
(AR 13.) Given this RFC, the ALJ found that Charbonneau was unable to perform her
past relevant work as a kitchen worker or pharmacy assistant. (AR 17.) Finally, based
on testimony from the VE, the ALJ determined that Charbonneau could perform other
jobs existing in significant numbers in the national economy, including courier, storage
facility rental clerk, and office helper. (AR 18.) The ALJ concluded that Charbonneau
had not been under a disability from the alleged onset date of December 13, 2007 through
the date of the decision. (AR 19.)
The DRB affirmed the ALJ’s decision, but supplemented it on two points. First,
noting that the record suggested Charbonneau had obesity, the DRB evaluated the
condition pursuant to SSR 02-1p, ultimately determining that the ALJ’s RFC assessment
accommodated any reasonable restrictions associated with obesity. (AR 1.) Second,
addressing a September 2010 letter from Charbonneau’s representative’s which presented
arguments against the ALJ’s decision, the DRB found that none of those arguments
warranted disturbing the ALJ’s decision. (Id.) Specifically, the DRB discussed the
ALJ’s findings regarding an October 2009 Interdisciplinary Evaluation (described in

5

detail below), considered the Evaluation “in light of the totality of the evidence,” and
concluded that the ALJ’s evaluation and weighing of the Evaluation was proper. (AR 2.)
Standard of Review
The Social Security Act defines the term “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). A person will be found to be disabled only if it is determined that his
“impairments are of such severity that he is not only unable to do his previous work[,] but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42 U.S.C. §
423(d)(2)(A).
In reviewing a Commissioner’s disability decision, the court limits its inquiry to a
“review [of] the administrative record de novo to determine whether there is substantial
evidence supporting the . . . decision and whether the Commissioner applied the correct
legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). A court’s factual
review of the Commissioner’s decision is limited to determining whether “substantial
evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d
Cir. 1990) (“Where there is substantial evidence to support either position, the
determination is one to be made by the factfinder.”). “Substantial evidence” is more than
6

a mere scintilla; it means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Poupore, 566 F.3d at 305. In its deliberations, the court should consider that the Social
Security Act is “a remedial statute to be broadly construed and liberally applied.”
Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).
Analysis
I.

The ALJ’s Assessment of the Interdisciplinary Evaluation Was Proper.
In October 2009, Charbonneau underwent an Interdisciplinary Evaluation (“IDE”),

which consisted of a physical therapy evaluation performed by Physical Therapist (“PT”)
Traci Glanz, an occupational therapy evaluation performed by Occupational Therapist
(“OT”) Linda Sheridan, and a psychological evaluation performed by psychologist Dr.
JoAnn Joy. (AR 503-16; see also AR 482-86.) PT Glanz found that Charbonneau would
be a candidate for a functional interdisciplinary rehabilitation program and would benefit
from pain management strategies. (AR 504.) OT Sheridan found that Charbonneau was
an excellent candidate for occupational therapy in order to improve her ability to manage
pain, improve functioning, and return to work. (AR 505.) Sheridan further opined that
Charbonneau’s functioning was at the sedentary level, but she had a “good prognosis to
go from sedentary to light” work. (AR 506.) Dr. Joy opined that, although Charbonneau
was highly fearful of pain and had little knowledge of effective pain management
strategies, it was unlikely that mental health issues would complicate her ability to
participate effectively and benefit from an interdisciplinary treatment program. (AR 50809.) In summary, the IDE providers stated that Charbonneau tested in a sedentary work
7

capacity, although there was no indication that she could sustain that level for a full work
day. (AR 514.) They opined that Charbonneau “expressed a fair to poor knowledge of
active pain management strategies,” relying instead on activity-avoidance and narcotic
medications; and that Charbonneau’s limitations appeared to result in “significant
occupational impairments, as evidenced by decreased ability to perform work tasks,
decreased ability to participate in previously enjoyed recreational activities, and difficulty
with performing household tasks.” (AR 515.) Finally, the interdisciplinary team
recommended that Charbonneau participate in a “Level 4 Functional Restoration
Program,” which they stated was designed “for individuals with severe functional
limitations and severe psychosocial barriers to recovery.” (Id.)
The ALJ gave only “some weight” to the opinions of Glanz, Sheridan, and Dr.
Joy, implicitly rejecting the finding that Charbonneau could perform only sedentary
work, and stating: “The opinion that [Charbonneau’s] observed abilities indicated that she
suffered from significant occupational impairments preventing her from sustaining work .
. . is contradicted by [Charbonneau’s] observed abilities and opinions from other
providers.” (AR 17.) Nonetheless, the ALJ explicitly affirmed Sheridan’s opinion
(contained in the IDE) that Charbonneau had the ability to progress to the point where
she could sustain light work, stating that such opinion was “consistent with
[Charbonneau’s] demonstrated abilities and functional limitations throughout the
evidence of record.” (Id.) Charbonneau contends that the ALJ erred in his evaluation of
the IDE, and more specifically, in the weight afforded to the opinions contained therein.

8

Contrary to Charbonneau’s assertion (see Doc. 17-1 at 5-6), the ALJ was not
required to analyze the IDE under the treating physician rule because none of the
opinions contained therein were made by “treating physicians.” Specifically, Sheridan
and Glanz were therapists, not physicians or psychologists. See SSR 06-03p, 2006 WL
2329939, at *1-2 (Aug. 9, 2006) (noting that only the opinions of “acceptable medical
sources” – including physicians, psychologists, optometrists, podiatrists, and speechlanguage pathologists – may be entitled to controlling weight under 20 C.F.R. §
404.1527(d)). Moreover, Dr. Joy does not appear to have had a treating relationship with
Charbonneau, as she evaluated Charbonneau on only one occasion. See Garcia v.
Barnhart, No. 01 Civ. 8300, 2003 WL 68040, at *5, n.4 (S.D.N.Y. Jan. 7, 2003) (citing
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); Jones v. Apfel, 66 F. Supp. 2d 518, 525
(S.D.N.Y. 1999)) (noting that physicians who see patients only once do not have a chance
to develop an ongoing relationship and thus are generally not considered treating
physicians). Nonetheless, the opinions contained in the IDE were entitled to some
consideration, and the ALJ was required to analyze them using the familiar factors set
forth in 20 C.F.R. § 404.1527(d)(2)-(6), including the length, frequency, nature, and
extent of the treatment relationship; the degree to which the source presented relevant
evidence to support his or her opinion; whether the source specialized in the medical area
upon which he or she opined; and whether the opinion is consistent with the record as a
whole.
Although the ALJ did not explicitly apply each of these factors in his analysis of
the IDE, he did note the specialties of the providers and the nature and extent of their
9

treating relationship with Charbonneau. (AR 17 (“The opinion of Linda Sheridan, OTRL, Traci Glanz, PT, and JoAnn Joy, Ph.D., is given some weight. These parties
performed an occupational therapy intake evaluation of [Charbonneau] in October
2009.”).) More importantly, the ALJ considered whether the opinions contained in the
IDE were consistent with the record as a whole, and found that they were not. (Id.)
Specifically, the ALJ determined that: (a) the IDE opinion that Charbonneau suffered
from significant occupational impairments preventing her from sustaining work was
contradicted by “[Charbonneau’s] observed abilities and opinions from other providers”;
and (b) the IDE opinion that Charbonneau had the ability to progress to the point where
she could sustain light work was consistent with “[Charbonneau’s] demonstrated abilities
and functional limitations throughout the evidence of record.” (Id.) The Court finds that
substantial evidence – much of which the ALJ considered throughout his decision –
supports these findings.
For example, with respect to Charbonneau’s back pain, an MRI of the lumbar
spine revealed “normal” results (AR 219); a CT of the lumbar spine revealed “[n]o
evidence of acute displaced . . . fracture” (AR 274); an MRI of the cervical spine revealed
only facet joint arthropathy and cervical spondylosis, but was “[n]egative” for acute
displaced fracture or subluxation (AR 220); and a CT of the thoracic spine revealed “[n]o
evidence of acute displaced . . . fracture” (AR 273). Medical sources confirmed that
these test results were negative or unremarkable. (AR 263, 282, 331, 483, 491, 503).
Additionally, treatment notes from Dr. S. Hannah Rabin and Dr. Joseph Haddock indicate
that, although Charbonneau initially complained of back pain after her December 2007
10

motor vehicle accident (AR 263), by April 2008, her pain was improving (AR 258). The
record demonstrates that her pain continued to improve with treatment through July 2008.
(AR 239-44, 251, 253.) In August 2008, although Charbonneau reported increased pain,
it was noted that such increase was due to her having been “on [her] feet more taking care
of [her] husband.” (AR 238.) In October 2008, Charbonneau reported having
“significant [back] spasms” (AR 250), but, as noted by the ALJ (AR 15), approximately
six months later, she reported that overall she was “doing well” and her back pain
bothered her only “once in a while” (AR 410).
In June 2009, Charbonneau fell at WalMart, triggering new complaints of back
pain; but with the exception of positive straight leg-raising, examination revealed normal
results. (AR 529.) In August 2009, after examining Charbonneau, Physician Assistant
Robert Hemond noted that “[the medical record] and physical examination [we]re not
concordant with [Charbonneau’s] symptoms and subjective complaints.” (AR 511.)
Hemond further noted that Charbonneau exhibited “5/5 Waddell signs2 on physical
examination reflecting a psychological overlay.” (Id.) By September 2009, Dr. Haddock
stated that Charbonneau’s back was “not great but fair”; Charbonneau reported to the
Doctor that she was “moving [better] than she ha[d] in quite a while”; and Charbonneau
was encouraged to continue her “range of motion exercises.” (AR 525.) About a month

2

There are eight clinical findings, otherwise known as “Waddell signs,” which an examiner
evaluates when assessing a patient complaining of back pain. See 2 DAN J. TENNENHOUSE, ATTORNEYS
MEDICAL DESKBOOK § 18:4 (4th ed. 2010). “Each sign is caused by non-anatomical (functional) factors
and implies that the back pain has no physical cause. One or two of these signs may arise from patient
anxiety or eagerness to cooperate. Three or more are usually considered sufficient to make a diagnosis of
functional disorder or deliberate deception (malingering) and to rule out physical abnormality.” Id.
(emphasis added).

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later, in October 2009, Charbonneau reported to therapist Glanz that her pain increased as
the day progressed if she stood too long, or if she increased her activity. (AR 483.) But,
as recognized by the ALJ (AR 15), she also reported that this pain was “relieved with
sitting for a short period of time” (AR 483). Further, Charbonneau told Glanz that she
was “independent with all household activities,” although she could not do heavy tasks
like carrying a 50-pound bag of potatoes. (Id.) Considering this evidence, the ALJ
stated: “Th[e] allegation of pain and relief is adequately considered [in the RFC
determination] with the ability to alternate between sitting and standing at will.” (AR
15.)
The ALJ also considered the December 2009 evaluation of Dr. Philip Davignon.
(AR 15-16, 488-93.) Although Dr. Davignon’s evaluation revealed that Charbonneau
experienced discomfort, tenderness, and decreased range of motion of the lumbar spine; it
also demonstrated that Charbonneau’s cervical spine and upper extremities were normal
with intact range of motion, strength, reflexes, and sensation; and that Charbonneau had
full range of motion of the hips, knees, and ankles; intact motor strength; non-antalgic
gait; and could perform a single knee bend on either side without difficulty. (AR 49293.) Nowhere in the evaluation does Dr. Davignon opine that Charbonneau was more
functionally limited than the ALJ determined she was.
In addition to the medical evidence, the ALJ properly considered that
Charbonneau had “consistently performed a full range of activities of daily living and
maintained social interactions,” including playing bingo, socializing with friends, and
completing household chores. (AR 15; see also AR 12.) Indeed, the record demonstrates
12

that, although she had pain and spent much of her day sitting, Charbonneau was able to
perform all personal care tasks on her own; prepare meals, taking breaks as needed to rest
her back; make the beds; do the laundry; mop; load the dishwasher; go shopping; and
visit with family. (AR 161-67.) Although “a claimant need not be an invalid to be found
disabled,” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998), the Second Circuit has held
that it is proper for an ALJ to consider a claimant’s daily activities in determining
whether the claimant is disabled. See, e.g., Calabrese v. Astrue, 358 F. App’x 274, 278
(2d Cir. 2009) (“in assessing the credibility of a claimant’s statements, an ALJ must
consider . . . the claimant’s daily activities”); SSR 96-7p,1996 WL 374186, at *5-6 (July
2, 1996).
Charbonneau argues that the ALJ erred in affording more weight to the opinions
of non-examining agency consultants Drs. Leslie Abramson and Joseph Patalano than to
the opinions of examining providers Glanz, Sheridan, and Dr. Joy. However, substantial
evidence supports the ALJ’s decision to give lesser weight to the opinions of the
examining providers and “great weight” to those of the non-examining consultants. (AR
15-16.) Although, as Charbonneau points out, in many cases it is proper for the ALJ to
give reduced weight to the opinions of non-examining agency consultants in comparison
to the weight afforded to examining sources; the regulations clearly permit the opinions
of non-examining agency consultants to override those of examining sources, when the
former are more consistent with the record evidence than the latter. See Diaz v. Shalala,
59 F.3d 307, 313 n.5 (2d Cir. 1995) (citing Schisler v. Sullivan, 3 F.3d 567-68 (2d Cir.
1993)) (“[T]he regulations . . . permit the opinions of nonexamining sources to override
13

treating sources’ opinions provided they are supported by evidence in the record.”); SSR
96-6p, 1996 WL 374180, at *3 (July 2, 1996) (“In appropriate circumstances, opinions
from State agency . . . consultants . . . may be entitled to greater weight than the opinions
of treating or examining sources.”). Here, as the ALJ stated in his decision, the opinions
of consultants Drs. Abramson and Patalano are “supported by and consistent with the
evidence of record,” including Charbonneau’s own self-reporting. (AR 16.)
Specifically, Dr. Abramson opined in May 2009 that Charbonneau could
occasionally lift 20 pounds, frequently lift 10 pounds, stand and/or walk for about 6 hours
in an 8-hour workday, sit for about 6 hours in an 8-hour workday, and push and/or pull
without restriction. (AR 470. ) A few months earlier, in February 2009, Dr. Patalano
opined that Charbonneau had mild restriction in daily activities; mild difficulties in
maintaining social functioning; moderate difficulties in maintaining concentration,
persistence, or pace; and no episodes of decompensation. (AR 399.) Dr. Patalano further
opined that Charbonneau retained understanding and memory for 3-plus step tasks; may
have some occasional problems with concentration, persistence, and pace, but could
sustain concentration, persistence, and pace for 2-hour periods over an 8-hour workday;
could collaborate with supervisors and co-workers; and could set goals, recognize
hazards, travel, and manage routine changes. (AR 405.) The Court finds that substantial
evidence, discussed above, supports these opinions.
Quoting Tarsia v. Astrue, 418 F. App’x 16, 18 (2d Cir. 2011), Charbonneau argues
that the opinion of Dr. Abramson should have been given “little weight” because the
doctor did not review “the complete medical record.” (Doc. 17-1 at 9.) But this case is
14

distinguishable from Tarsia because there, the record included an additional diagnosis
and recommendation for surgery. See Tarsia, 418 F. App’x at 18. Here, there is no
evidence of a new diagnosis or a worsening of Charbonneau’s condition. In fact,
although both Dr. Abramson and Dr. Patalano prepared their respective reports prior to
completion of the record, the ALJ accurately found that their opinions remained
consistent with the evidence, and that “later-received evidence did not demonstrate any
change in [Charbonneau’s] status and did not provide further support for the alleged
severity of [Charbonneau’s] limitations.” (AR 16; see, e.g., AR 488-93, 510-11, 522,
525.) Because the agency consultants’ opinions are supported by the record, and the
opinion contained in the IDE that Charbonneau could perform only sedentary work is not
supported by the record, the ALJ did not err in affording more weight to the agency
consultants’ opinions than to those of the IDE providers.
Also noteworthy, the ALJ did not rely solely on the consultants’ opinions in
formulating his RFC assessment. Rather, it is apparent from his decision that the ALJ
considered all the relevant evidence, including Charbonneau’s own self-reporting to the
Commissioner and to her treating and examining providers. The ALJ’s consideration of
the record as a whole in determining Charbonneau’s RFC complied with the regulations,
which provide that the ALJ must assess the claimant’s RFC “based on all the relevant
evidence in [the] case record,” not based on the medical evidence alone. 20 C.F.R. §
404.1545(a)(1) (emphasis added).
Furthermore, the DRB provided additional explanation which supports the ALJ’s
decision to afford limited weight to the opinions contained in the IDE. Specifically, the
15

DRB accurately stated that the opinion contained in the IDE that Charbonneau was
capable of only sedentary work was based on Charbonneau’s performance during the
evaluation, which “involve[d] great subjectivity.” (AR 2.) As argued by the
Commissioner, although the IDE included objective tests, such as range of motion and
straight leg raising, the results of these tests were largely subjective, given that they were
dependent on Charbonneau’s reports of pain. (See, e.g., 503-05.) The DRB also
accurately stated that Charbonneau’s reports of pain may have been exaggerated,
considering that her IDE providers believed she was “pain[-]focused” and “had a fear of
doing things because of an increase in pain.” (AR 505; see also AR 509 (“her fear of
pain is likely to complicate her ability to increase her level of activity”).) Likewise, as
noted above, Physician Assistant Hemond found that Charbonneau exhibited “5/5
Waddell signs on physical examination reflecting a psychological overlay.” (AR 511.)
In a neuropsychological evaluation, psychologists Drs. Gail Isenberg and Janis Peyser
similarly found, stating that “[s]ymptom validity testing indicate[d] that non-neurologic
factors interfered with [Charbonneau’s] test performance and effort was insufficient to
produce reliable results.” (AR 540.) Drs. Isenberg and Peyser concluded that it appeared
“likely that non-neurologic factors help[ed] drive [Charbonneau’s] clinical complaints.”
(AR 541.) Also in accord, Dr. Waqar Waheed noted the lack of objective findings to
support Charbonneau’s subjective complaints of memory loss, and opined that her
complaints could derive from a prior hemorrhage or an underlying mood disorder, or
“there could be some secondary gain as she [was] trying to get disability.” (AR 535.)

16

Finally, the DRB correctly supported the ALJ’s decision to afford limited weight
to the IDE, by pointing out that, despite the IDE providers’ opinion that Charbonneau
was an “excellent candidate” for a Level 4 Functional Restoration Program and
recommendation that Charbonneau participate in such a program (AR 485, 515),
Charbonneau opted against participating because “she did not feel that she would be
able” (AR 490).3 (AR 2.) It was proper for the DRB to consider this fact, as the
regulations provide that if a claimant fails to follow prescribed treatment without a good
reason, the Commissioner will not find the claimant disabled. 20 C.F.R. § 404.1530(b);
see also 20 C.F.R. § 404.1529(c) (“treatments or other methods” used to alleviate a
claimant’s pain are “an important indicator of the intensity and persistence” of the
claimant’s pain). Charbonneau’s failure to participate in the Functional Restoration
Program on the sole grounds that she did not feel as though she could, when considered
in light of the record as a whole, supports affording only minimal weight to the restrictive
limitations set forth in the IDE. See Russell v. Barnhart, 111 F. App’x 26 (1st Cir. 2004)
(“A claimant’s failure to follow prescribed medical treatment contradicts subjective
complaints of disabling conditions and supports an ALJ’s decision to deny benefits.”)
(citing Tsarelka v. Sec’y of Health & Human Servs., 842 F.2d 529, 534 (1st Cir. 1988)
(per curiam) (affirming denial of benefits where claimant did not follow through with
securing medical treatment); Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983)
(affirming denial of benefits where claimant failed to heed doctor’s diet recommendation
3

In her Reply, Charbonneau suggests – for the first time – that she may not have participated in
the Functional Restoration Program because she “could not financially afford to participate in i[t].” (Doc.
25 at 10.) There is no evidence in the record to support this suggestion; thus the Court rejects it.

17

which would have helped hypertension and headaches).
Contending that the DRB was not created for the mere purpose of “clean[ing] up”
ALJs’ flawed decisions, Charbonneau asserts that this Court may not consider the DRB’s
findings in contemplating whether substantial evidence supports the ALJ’s decision.
(Doc. 25 at 6.) The law does not support this contention. In fact, the case cited by
Charbonneau in support of this assertion holds the very opposite:
[T]he layers of administrative review are obviously in place to permit the
Commissioner to identify and correct mistakes when they are found,
including by amended decision. 20 C.F.R. §§ 404.967, 404.979, 416.1467,
416.1479. If the Appeals Council concludes that further administrative
proceedings need to occur before the ALJ, or if it desires further
consideration and a recommended decision from the ALJ, it has the
authority to order such proceedings. Id. §§ 404.977, 416.1477. On the
other hand, if the Appeals Council concludes that it should decide the
issues, it may do so and its decision can be reviewed by the Court in due
course. Id. § 404.979, 416.979.
Thibodeau v. Soc. Sec. Admin. Comm’r., No. 1:10-cv-00371-JAW, 2011 WL 4344561, at
*2 (D. Me. Sept. 13, 2011) (emphases added). The regulations clearly allow the DRB (or
Appeals Council) to affirm the ALJ’s decision, with supplementation, as was done in this
case. See 20 C.F.R. § 404.967 (“The Appeals Council may . . . grant the request [for
review] and either issue a decision or remand the case to an administrative law judge.”)
(emphasis added); 20 C.F.R. § 404.979 (“The Appeals Council may affirm, modify or
reverse the administrative law judge hearing decision . . . .”) (emphasis added).
For these reasons, the ALJ properly considered the IDE, and substantial evidence
supports the ALJ’s findings regarding the opinions contained therein.

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II.

Substantial Evidence Supports the ALJ’s Determination that Charbonneau
Could Do Light Work.
Next, Charbonneau asserts that the ALJ erred “by basing his finding that Ms.

Charbonneau was capable of ‘light’ work activity on the prognosis that she could perform
this work in the future,” rather than on her ability to work at the time of the ALJ’s
decision. (Doc. 17-1 at 11.) As discussed above, the ALJ did not base his RFC
determination on one single factor. Rather, he correctly considered the record as a whole
in determining Charbonneau’s RFC, and substantial evidence supports that
determination.
Furthermore, in determining Charbonneau’s RFC, it was proper for the ALJ to
consider Sheridan’s statement in the IDE that Charbonneau had the ability to progress to
the point where she could sustain light work. (AR 17, 506.) See 20 C.F.R. §
404.1545(a)(1) (“We will assess your residual functional capacity based on all the
relevant evidence in your case record.”). In fact, the medical record demonstrates that,
when Charbonneau was actively engaged in prescribed treatment, her back pain was
more manageable. (See, e.g., AR 251 (while continuing to do exercises and after recently
having “an injection of some sort,” her “back [wa]s a little better” and she was “getting
by fairly well without analgesics”), 253 (continuing exercises, “[b]ack is a lot better and
she is moving better”), 258 (“doing much better,” “continuing with physical therapy
twice a week,” taking tramadol, and “using a TENS unit which is quite helpful”), 410
(taking Vicodin once or twice a week, back pain bothers her only “once in a while”).)
But the record demonstrates that, when the IDE was performed, Charbonneau was no

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longer doing her exercises, engaging in physical therapy, or effectively using painmanagement techniques. (See, e.g., AR 503, 509.) Therefore, it would have been proper
for the ALJ to have found that, although at the time of the IDE, Charbonneau may not
have been able to perform more than sedentary work, such a significant limitation was
the result of Charbonneau’s failure to follow prescribed treatment; and if she had
followed such treatment, she may have been able to do light work. In any event, the ALJ
did not afford more than “some weight” to Sheridan’s opinion regarding Charbonneau’s
ability to perform light work (AR 17), and clearly found that the record as a whole
demonstrated that Charbonneau was able to do light work during the alleged disability
period (AR 12-17). Thus, Charbonneau’s assertion that the ALJ “bas[ed]” his RFC
determination on Sheridan’s opinion regarding Charbonneau’s ability to perform light
work in the future (Doc. 17-1 at 11), is factually flawed and does not constitute grounds
for remand.
III.

Substantial Evidence Supports the ALJ’s Sitting and Standing Restriction.
Finally, Charbonneau contends that the ALJ’s RFC determination that she could

perform a job if it allowed her to alternate between sitting and standing is not supported
by the record, and more specifically, that no medical provider opined that Charbonneau
had the ability to sit and stand alternately throughout an 8-hour workday. (Doc. 17-1 at
12-13.) Although it is true that no medical provider made this opinion, as noted above,
the regulations provide that the ALJ must assesses the claimant’s RFC “based on all the
relevant evidence in [the] case record,” not based solely on the medical evidence. 20
C.F.R. § 404.1545(a)(1). The ALJ’s determination that Charbonneau could perform light
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work if allowed to alternate between sitting and standing is supported by the record,
including Charbonneau’s own self-reporting in social security forms and at the
administrative hearing. (See, e.g., AR 131, 164, 167, 483, 514, 562-63.) For example, as
noted in the ALJ’s decision, Charbonneau reported to a medical provider that her back
pain worsened with increased activity or standing too long, but “was relieved with sitting
for a short period of time.” (AR 15 (citing AR 483).) And at the administrative hearing,
Charbonneau testified that she was able to sit for 20-30 minutes at a time and stand on a
cement floor for 10 minutes at a time. (AR 563.) Accordingly, substantial evidence
supports the ALJ’s sitting and standing restriction, and the ALJ did not commit legal
error by including this restriction in his RFC determination.
Conclusion
As discussed above, ALJ Martin conducted a thorough analysis of Charbonneau’s
claim, including consideration of the relevant medical opinion evidence. The ALJ cited
substantial evidence to support his findings, including his decision to afford only “some
weight” to the Interdisciplinary Evaluation prepared by PT Glanz, OT Sheridan, and Dr.
Joy. This decision was properly supplemented by the DRB in its subsequent decision.
For these reasons, the Court DENIES Charbonneau’s motion (Doc. 17); GRANTS the
Commissioner’s motion (Doc. 22); and AFFIRMS the decision of the Commissioner.
Dated at Burlington, in the District of Vermont, this 31st day of January, 2012.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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