Laviolette v. Commissioner of Social Security

Filing 13

OPINION AND ORDER: The Court DENIES Plaintiff's 8 MOTION for Order Reversing the Decision of the Commissioner and GRANTS Defendant's 11 AMENDED MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 9/27/2017. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Thomas Laviolette,
Plaintiff,
v.

Civil Action No. 2:16-cv-293

Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 8, 11)
Plaintiff Thomas Laviolette 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 denying his application for Disability Insurance
Benefits (DIB). Pending before the Court are Laviolette’s motion to reverse the
Commissioner’s decision (Doc. 8), and the Commissioner’s motion to affirm the same
(Doc. 11). For the reasons stated below, Laviolette’s motion is DENIED, and the
Commissioner’s motion is GRANTED.
Background
Laviolette was 42 years old on his alleged disability onset date of June 8, 2012.1
He completed high school and has work experience as a carpenter, a home health aide,
a machinist, and a small business owner/oil burner technician. He is married and
lives with his wife and grown sons.

The record is unclear regarding whether the alleged disability onset date is June 7, or June 8,
2012. (See, e.g., AR 22, 25, 34, 42, 133, 257, 279.) But the parties each refer to June 8 in their motions
(see Doc. 8-1 at 1, Doc. 11-1 at 1, 3), and thus the Court does the same here.
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In September 2006, Laviolette was injured at work. He has not worked full
time ever since, mostly due to neck pain and decreased range of motion in his neck,
but also because of pain in his shoulders, arm, and back; and pain radiating down his
leg. To address his pain, Laviolette has undergone physical therapy, chiropractic
treatment, acupuncture, epidural injections, nerve blocks, and radiofrequency ablation
therapy, none of which has resulted in long-term relief. He has also been prescribed
many different medications, including narcotics. In August 2012, after a cervical MRI
showed degenerative changes at C6-7 in the cervical spine, a herniated disc, and
foraminal stenosis; Laviolette underwent C6-7 anterior cervical discectomy and fusion
surgery (neck surgery). (AR 388, 461–63.) The surgery reduced his right arm pain, at
least temporarily, but his neck pain has continued. (AR 46–47.)
At the April 2016 administrative hearing, Laviolette testified that he is “on a
ton of medication” (AR 48)––about 20 different kinds (AR 58)––and that those
medications “help[] to a degree” (AR 48), but have the side effects of loss of balance,
dizziness, and drowsiness (AR 58–59). (See also, regarding Laviolette’s prescription
drug use, AR 59, 410–11, 422–23, 434, 445, 476–80, 672, 745–50, 920, 1037, 1050–52.)
Laviolette further testified that any activity or movement makes his pain severe
(AR 49, 53), and that it is “not uncommon” for him to be in bed for three days at a time
due to pain (AR 56). Laviolette’s primary care physician, Dr. Melisa Gibson, stated in
treatment notes from during and after the alleged disability period that she would
need to taper Laviolette’s medications at some point (see, e.g., AR 416, 694, 1052), but
Laviolette was never ready (see, e.g., AR 434, 437, 1050). In an October 2015
treatment note, Dr. Gibson indicated that she was tapering Laviolette’s medications

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and that she had a “[l]ong and frank” discussion with Laviolette to advise him that,
after almost nine years of treatment with pain medications and other modalities,
“there is no indication to continue pain medication at such high doses when they have
neither relieved pain [n]or restored function.” (AR 1052.)
On July 16, 2014, Laviolette filed the pending DIB application, alleging that,
starting in June 2012, he has been unable to work due to cervicalgia (neck pain), low
back pain, chronic pain, depression, gastroesophageal reflux disease, hyperlipidemia,
high blood pressure, insomnia, heart issues, and limited range of motion. (AR 116–18,
133, 261.) The application was denied initially and on reconsideration, and Laviolette
timely requested an administrative hearing. The hearing was conducted on April 7,
2016 by Administrative Law Judge (ALJ) Matthew Levin. (AR 40–70.) Laviolette
appeared and testified, and was represented by an attorney. A vocational expert (VE)
also testified at the hearing. On May 12, 2016, the ALJ issued a decision finding that
Laviolette was not disabled under the Social Security Act at any time from his alleged
disability onset date of June 8, 2012 through his date last insured of December 31,
2012. (AR 34.) Thereafter, the Appeals Council denied Laviolette’s request for review,
rendering the ALJ’s decision the final decision of the Commissioner. (AR 1–5.)
Having exhausted his administrative remedies, Laviolette filed the Complaint in this
action on November 2, 2016. (Doc. 1.)
ALJ Decision
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

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“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 that 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 his or her
impairment meets or equals a listed impairment. Ferraris v. Heckler, 728 F.2d 582,
584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the ALJ is required to determine
the claimant’s residual functional capacity (RFC), which means the most the claimant
can still do despite his or her mental and physical limitations based on all the relevant
medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1),
416.920(e), 416.945(a)(1). The fourth step requires the ALJ to consider whether the
claimant’s 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]”).

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Employing this sequential analysis, ALJ Levin first determined that Laviolette
had not engaged in substantial gainful activity since his alleged disability onset date
of June 8, 2012. (AR 25.) At step two, the ALJ found that Laviolette had the severe
impairment of degenerative disc disease of the spine with radiculopathy. (Id.)
Conversely, the ALJ found that Laviolette’s hypertension, hyperlipidemia,
gastroesophageal reflux disease, coronary artery disease, adjustment disorder,
depression, and anxiety disorder were nonsevere, given that none of these
impairments created more than minimal limitations in Laviolette’s ability to perform
basic work tasks or mental work activities. (AR 25–27.) At step three, the ALJ found
that none of Laviolette’s impairments, alone or in combination, met or medically
equaled a listed impairment. (AR 27–28.)
Next, the ALJ determined that Laviolette had the RFC to perform light work, as
defined in 20 C.F.R. § 404.1567(b), with the following particular limitations:
[Laviolette] can frequently climb stairs but should avoid all ladders,
ropes[,] and scaffolds. He is unlimited for balancing. [He] can frequently
stoop, kneel, crouch, crawl, or use ramps. He can frequently perform
overhead reaching [and] front and lateral reaching activities, and can
frequently handle.
(AR 28.) Given this RFC, the ALJ found that Laviolette was unable to perform his
past relevant work as a carpenter, a home health aide, a machine operator, and a
small business owner/oil burner technician. (AR 32.) Finally, based on testimony
from the VE, the ALJ determined that Laviolette could perform other jobs existing in
significant numbers in the national economy, including the “light” jobs of price
marker, furniture rental consultant, and laundry classifier (AR 33); and the
“sedentary” jobs of telephone information clerk, final assembler, and call-out operator

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(AR 34). The ALJ concluded that Laviolette had not been under a disability from the
alleged onset date of June 8, 2012 through his date last insured of December 31, 2012.
(AR 34.)
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 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 considering a Commissioner’s disability decision, the court “review[s] 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). The court’s factual review of
the Commissioner’s decision is thus 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

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than 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 bear in mind
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
Laviolette argues that the ALJ erred in discounting the opinions of his treating
primary care physician, Dr. Melisa Gibson, and in relying on the opinions of
nonexamining agency consultants Francis Cook, MD and George Cross, III, MD
instead. Specifically, Laviolette asserts that the ALJ did not give good reasons for
giving little weight to Dr. Gibson’s opinions, which Laviolette claims are consistent
with Dr. Gibson’s own medical records and with the rest of the record taken as a
whole. (Doc. 8 at 4–6.) The Commissioner disagrees with Laviolette’s claims, and
contends the ALJ correctly found that Dr. Gibson’s opinions did not apply to the
relevant period and were unsupported by and inconsistent with the remainder of the
record. (Doc. 11 at 4–8.)
The relevant opinions were made by Dr. Gibson in letters dated August 25, 2015
and April 6, 2016, respectively. (AR 908, 1129.) In the August 2015 letter, Dr. Gibson
stated that, due to Laviolette’s chronic neck pain and decreased range of motion in his
neck and back, he had the following medical limitations: (1) he could not lift more than
ten pounds; (2) he could not carry items “for any distance”; (3) he would likely have to
change positions frequently to relieve pain and stiffness; (4) bending, stooping, and
twisting would likely cause him pain; (5) climbing ladders or chairs could be dangerous

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due to significantly reduced range of motion in his neck; and (6) repetitive use of his
hands and reaching would likely exacerbate his neck pain. (AR 908.) Given these
limitations, Dr. Gibson opined:
I do not believe [Laviolette] could engage in full[-]time work at this point
in time. He has been out of work since 2006 and has made minimal
improvements in the symptoms that caused him to stop working in the first
place. If anything, he now has additional limiting diagnoses such as
thoracic and low back pain and depression.
(Id.) Dr. Gibson concluded that Laviolette’s medical prognosis regarding pain control
and return of function was “poor.” (Id.)
Similarly, in her April 2016 letter, Dr. Gibson opined that Laviolette “is
chronically disabled from chronic neck pain,” which “severely limits his ability to move
his head in all directions, lift his arms above chest level, lift[,] or carry.” (AR 1129.)
Dr. Gibson explained that Laviolette needed to lay down frequently, “which would
prevent him from acquiring and sustaining meaningful work”; could not sit in one
position; could not stand or walk for more than 10–15 minutes at a time; and had
frequent exacerbations of pain, which “would require several days out of work per
month (upwards of 5–7 days/month).” (Id.)
Given that Dr. Gibson is a physician who regularly treated Laviolette, she is
considered a “treating physician” under the regulations; and thus the ALJ was
required to evaluate her opinions under the “treating physician rule.” See Mongeur v.
Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983); Schisler v. Bowen, 851 F.2d 43, 46 (2d
Cir. 1988) (“A claimant’s treating source is his or her own physician, . . . who has
provided the [claimant] with medical treatment or evaluation and who has or had an
ongoing treatment and physician-patient relationship with the individual.”). That rule

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mandates that an ALJ must give “controlling weight” to the opinions of a treating
source if those opinions are “well[]supported by medically acceptable clinical and
laboratory diagnostic techniques” and “not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2); see Halloran v. Barnhart,
362 F.3d 28, 32 (2d Cir. 2004); Schisler v. Sullivan, 3 F.3d 563, 567–69 (2d Cir. 1993).
Here, although the ALJ explicitly recognized that Dr. Gibson was “a long[]time
treating source of [Laviolette]” (AR 32), he gave Dr. Gibson’s 2015 and 2016 opinions
“little weight” (AR 31).
Where, as here, the ALJ does not afford controlling weight to the opinions of a
treating source, the ALJ must consider various “factors” to determine how much
weight to give the opinions. 20 C.F.R. § 404.1527(c). Among those factors are: the
frequency of examination; the length, nature, and extent of the treatment relationship;
the evidence in support of the opinions; the consistency of the opinions with the record
as a whole; whether the treating source is a specialist in the area that is the subject of
his or her opinions; and other factors tending to support or contradict the opinions. Id.
The regulations also specify that the Commissioner “will always give good reasons” for
the weight given to a treating source’s opinions. Id. at § 404.1527(c)(2); see also Schaal
v. Apfel, 134 F.3d 496, 503, 505 (2d Cir. 1998).
Here, the ALJ gave the following reasons in support of his decision to afford
“little weight” to Dr. Gibson’s opinions: (1) they were made in 2015 and 2016, more
than two years after the expiration of Laviolette’s date last insured, and they do not
indicate how Laviolette’s symptoms would have affected his functionality prior to that
date; (2) they were offered “merely for the purpose of establishing disability”; (3) the

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restrictions contained in the opinions are not corroborated by either Dr. Gibson’s own
treatment notes or the treatment notes of Laviolette’s orthopedic physicians; and
(4) the opinions are contradicted by the opinions of the nonexamining agency
consultants. (AR 32.)
The ALJ considered the relevant factors––including particularly supportability
and consistency with the record––in assessing the value of Dr. Gibson’s opinions. (See
AR 31–32.) The principal issue is whether the ALJ’s findings regarding those factors
were supported by “substantial evidence,” which the Second Circuit defines as “more
than a mere scintilla” and “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.
2009) (internal quotation marks omitted). The Court finds that substantial evidence
does in fact support the ALJ’s findings, as discussed below.
First, the ALJ accurately pointed out that Dr. Gibson’s opinions do not address
the alleged disability period, June through December 2012. The opinions themselves
were made approximately three years after that period ended; they are written almost
entirely in the present tense; and they do not discuss the relevant period other than to
state that Laviolette underwent neck surgery in 2012. (See AR 908, 1129.) Moreover,
the August 2015 opinions are explicitly limited to “this point in time” (AR 908 (“I do
not believe [Laviolette] could engage in full[-]time work at this point in time.”
(emphasis added))); and they indicate that Laviolette had developed “additional
limiting diagnoses” in recent years (id.). Laviolette argues that Dr. Gibson’s 2015 and
2016 opinions are essentially the same as her 2011 opinions, which are referenced in a
prior ALJ decision. (Doc. 8 at 6 (citing AR 103).) But the 2011 opinions were not made

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during the relevant period either, and there is evidence in the record to indicate that
Laviolette may have been unable to work both in 2011 and in 2015–2016, but able to
work during the relevant period in 2012. This is largely due to Laviolette’s surgery in
August 2012, which resulted in a lessening of Laviolette’s arm and neck pain, at least
temporarily. (See AR 47, 415, 418, 422–23, 453, 461–66.)2
The ALJ’s next reason for giving limited weight to Dr. Gibson’s opinions is
because they were offered “merely for the purpose of establishing disability.” (AR 32.)
Laviolette argues that the ALJ should not have discounted Dr. Gibson’s opinions on
this ground, but the Court finds no error, especially given that this was only one of
several reasons supporting the ALJ’s analysis. Further, although it is not entirely
clear, the ALJ’s finding that Dr. Gibson’s opinions are merely to establish disability
appears to reference the fact that Dr. Gibson’s opinions make a finding on the ultimate
question of disability, stating that Laviolette carries diagnoses “that would preclude
gainful employment” (AR 908), that Laviolette “could [not] engage in full[-]time work”
(id.), and that Laviolette “is chronically disabled” (AR 1129). The ultimate issue of
Laviolette’s disability, however, is reserved to the Commissioner, as the regulations
provide that “[a] statement by a medical source that [the claimant is] ‘disabled’ or

Worth noting, but not critical to the decision, although Laviolette argues that “[t]here is no
indication anywhere in the record of dishonesty, malingering, drug-seeking, or anything else that might
lend credence to a conclusion that Dr. Gibson’s opinions are tainted because Mr. Laviolette is seeking
public benefits” (Doc. 8 at 7), there is in fact ample evidence in the record indicating that Laviolette
engaged in drug-seeking behavior and overuse of his prescription medication (including narcotics)
during the alleged disability period and thereafter. (See AR 415, 418, 453, 653, 676, 725, 727, 740, 973,
1050 (May 2015 treatment note from Dr. Gibson, stating, “[f]eels morphine doesn’t work, thinks needs
higher dose of oxycodone,” “[w]as supposed to be off pain meds after neck surgery but never happened”),
1052 (October 2015 treatment note from Dr. Gibson, stating, “there is no indication to continue pain
medication at such high doses when they have neither relieved pain or restored function”).)
2

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‘unable to work,’” 20 C.F.R. § 404.1527(d)(1), is not a medical opinion but an “opinion[]
on [an] issue[] reserved to the Commissioner because [it is an] administrative finding[]
that [is] dispositive of [the] case; i.e., that would direct the determination or decision of
disability,” id. at § 404.1527(d). See Taylor v. Barnhart, 83 F. App’x 347, 349 (2d Cir.
2003) (holding doctor’s opinion that claimant was “temporarily totally disabled” was
entitled to no weight, “since the ultimate issue of disability is reserved for the
Commissioner”); SSR 96-5p, 1996 WL 374183, at *2 (July 2, 1996) (“treating source
opinions on issues that are reserved to the Commissioner are never entitled to
controlling weight or special significance[, as g]iving controlling weight to such
opinions would . . . confer upon the treating source the authority to make the . . .
decision about whether an individual is under a disability, and thus would be an
abdication of the Commissioner’s statutory responsibility to determine whether an
individual is disabled”).
The third––and most important––rationale given by the ALJ for discounting
Dr. Gibson’s opinions is that they are unsupported by both Dr. Gibson’s own treatment
notes and the treatment notes of Laviolette’s treating orthopedic physicians. After
reviewing the record, the Court agrees that treatment notes from the relevant period,
including those of Dr. Gibson herself, do not support the extreme limitations contained
in Dr. Gibson’s 2015 and 2016 opinions. The ALJ accurately stated: “Although
[Laviolette] sustained a serious neck injury [at work in 2006], which years later
required [neck] surgery, the medical evidence reflects his recovery went ‘fairly well,’
with relatively few findings during the period from the alleged onset date through
the . . . date last insured.” (AR 30 (citation omitted); see AR 937.) Specifically,

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following neck surgery in August 2012, although Laviolette was still having “some
neck pain and periscapular spasm,” as well as “intermittent right arm pain” (AR 453),
his arm and neck pain were reduced, cervical imaging showed a successful fusion (id.);
a lumbar spine (lower back) MRI showed only mild abnormalities; and a thoracic spine
(upper and middle back) MRI showed no abnormalities (AR 425, 467). The only
clinical findings during the relevant period indicated reduced range of motion,
tenderness, and muscle spasms (AR 414, 416, 419–20, 423, 425, 453), nothing so
extreme as Dr. Gibson opined in 2016 to require that Laviolette lay down for most of
the day (AR 1129).3 Moreover, much of these clinical findings were from before
Laviolette’s neck surgery, and at least three medical records indicate that Laviolette’s
neck pain was reduced after the surgery. (Compare AR 412 (presurgery August 2012
treatment note recording “significant[ly] decreased [range of motion of neck] in all
directions”) with AR 418 (postsurgery October 2012 treatment note recording “neck
pain ‘calmed down quite a bit’”) and AR 422 (postsurgery November 2012 treatment
note recording “[h]asn’t had residual arm pain in ‘some time’” and “[i]s able to move
neck much more”) and AR 423 (postsurgery November 2012 treatment note recording
“no [neck] pain with [range of motion]”).)

Of note, several of Laviolette’s treating providers, including Dr. Gibson herself, recommended
that Laviolette try physical therapy, but after attending a couple sessions, Laviolette claimed it did not
help much, or he was too busy, or he had no transportation. (AR 427, 438, 444–45, 447–49, 707, 725,
727 (November 2014 treatment note from Dr. Gibson, stating, “if he is unable to go to [physical therapy]
over the course of this month[,] . . . I will start tapering his meds regardless of how he feels”), 973 (May
2015 treatment note from Dr. Gibson, stating, “need[s] to become more active, engage in formal
[physical therapy], take some ownership in getting better”), 1015 (July 2015 treatment note from
Dr. Gibson, stating, “[h]asn’t gone to [physical therapy] for muscle strengthening/endurance (now no
transportation, but didn’t go even when had [it]”), 1050.)
3

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Furthermore, the ALJ correctly noted that none of Laviolette’s treating
orthopedists, who specialize in neck issues, opined that Laviolette’s neck pain was as
severely limiting as Dr. Gibson, a general practitioner.4 (AR 32.) Laviolette argues
that Dr. Ryan Jewell, a treating neurosurgeon, opined that “it may be difficult for
[Laviolette] to work in the future” (AR 373) (see Doc. 8 at 7–8), but that opinion was
made in April 2012, before Laviolette’s neck surgery. Laviolette also references the
September 2012 opinion of Dr. Michael Barnum, a treating orthopedic surgeon, to
support Dr. Gibson’s opinions (see Doc. 8 at 8), but Dr. Barnum merely stated: “I do
not think that [Laviolette] is ready to return to the work place as of yet” (AR 453), a
clear reference to the fact that Laviolette was only one month postoperative.
Finally, the ALJ supported his decision to afford only limited weight to
Dr. Gibson’s 2015 and 2016 opinions by stating that those opinions are contradicted by
the opinions of nonexamining agency consultants Dr. Cross and Dr. Cook, to which the
ALJ afforded great weight. (AR 31–32.) In February 2015 and May 2015,
respectively, Drs. Cross and Cook opined, based on their individual reviews of the
record, that Laviolette could lift 20 pounds occasionally and 10 pounds frequently;
stand/walk for about six hours in an eight-hour workday; sit for about six hours in an
eight-hour workday; frequently climb ramps/stairs and ladders/ropes/scaffolds;
frequently stoop, kneel, crouch, and crawl; balance (with no limitations); and

In making this point, the ALJ erroneously stated that Laviolette’s surgery occurred in
February instead of August 2012. (AR 32.) Laviolette suggests this makes the entire finding unclear
(Doc. 8 at 7), but I find it to be mere harmless error, particularly considering that the ALJ knew the
surgery occurred in August 2012, as he explicitly referenced it earlier in the decision (see AR 30
(“[Laviolette] eventually required [neck] surgery in August 2012.” (citations omitted))).
4

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frequently reach and handle bilaterally. (AR 146–47, 883–84; see AR 128–29.)
Laviolette argues that the ALJ did not provide any good reason for substituting the
opinions of nonexamining consultants Drs. Cross and Cook for those of treating
physician Dr. Gibson, and that the ALJ should not have given significant weight to the
opinions of Drs. Cross and Cook. (Doc. 8 at 8.)
Preliminarily, there is some merit to Laviolette’s assertion that the ALJ should
not have given greater weight to the agency consultants’ opinions on the grounds that
the consultants, “unlike Dr. Gibson, have experience evaluating disability claims and
familiarity with Social Security disability program rules and regulations.”5 (AR 32; see
Doc. 8 at 8–9.) A reviewing source’s familiarity with the regulations has little
relevance to the issue of what physical and mental limitations a particular claimant
had during the relevant period; and in fact, all else being equal, the regulations
provide that the ALJ should “give more weight to the medical opinion of a source who
has examined [the claimant] than to the medical opinion of a medical source who has
not.” 20 C.F.R. § 404.1527(c)(1); see id. at § 404.1527(c)(2) (“Generally, we give more
weight to medical opinions from your treating sources, since these sources are likely to
be the medical professionals most able to provide a detailed, longitudinal picture of
your 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, such as consultative examinations or brief

See also AR 31 (ALJ giving “great weight” to the opinions of agency consultants Drs. Cross
and Cook in part because they “are experienced in the evaluation of disability claims” and “have
familiarity with Social Security disability program rules and regulations”).
5

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hospitalizations.”). However, the regulations do provide that “the amount of
understanding of our disability programs and their evidentiary requirements that a
medical source has” is a “relevant factor[] that [the Commissioner] will consider in
deciding the weight to give to a medical opinion.” Id. at § 404.1527(c)(6); see Camille v.
Colvin, 652 F. App’x 25, 28 (2d Cir. 2016). Thus, the ALJ did not err in considering
this factor in assessing the value of the agency consultants’ opinions as compared to
that of Dr. Gibson’s opinions.
Furthermore, all else is not equal here, and the ALJ properly relied on other
factors, particularly consistency and supportability, in affording more weight to the
consultant opinions. (See AR 31–32; see also 20 C.F.R. § 404.1527(c)(3)–(4).)
Specifically, the ALJ stated that the opinions of Drs. Cross and Cook were “supported
[by] citations to specific evidence of record” and “consistent with other significant
evidence of record,” including: (a) November 2012 and December 2012 MRI findings
indicating that Laviolette’s thoracic and lumbar spine was largely normal, with only
mild degeneration; (b) treatment notes from soon after Laviolette’s August 2012
surgery indicating that he had significantly less arm pain; and (3) normal neurological
assessments during the relevant period. (AR 31 (citing AR 415–16, 420, 425, 467).)
Substantial evidence––cited in the ALJ’s decision and discussed above––supports
these findings.
Although, as noted above, the opinions of treating physicians are generally
given more weight than those of nonexamining agency consultants, the regulations
clearly permit the opinions of agency consultants to override those of treating
physicians, when the former are more consistent with the record evidence than the

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latter. See Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995) (citing Schisler, 3 F.3d
at 567–68 (“[T]he regulations . . . permit the opinions of nonexamining sources to
override treating sources’ opinions provided they are supported by evidence in the
record.”)); see also SSR 96-6p, 1996 WL 374180, at *3 (“In appropriate circumstances,
opinions from State agency . . . consultants . . . may be entitled to greater weight than
the opinions of treating or examining sources.”). Here, the opinions of agency
consultants Drs. Cross and Cook are more consistent with the record than those of
treating primary care physician Dr. Gibson. Further, there is no orthopedist opinion
assessing limitations more severe than those of Drs. Cross and Cook during the
relevant period. Therefore, the ALJ was justified in affording great weight to the
opinions of the consultants and little weight to those of Dr. Gibson. See, e.g., Camille,
652 F. App’x at 28.
Laviolette argues that the ALJ’s findings in favor of the opinions of the agency
consultants and against Dr. Gibson improperly related only to Laviolette’s back, when
it was his neck that was “the crux of the matter.” (Doc. 8 at 9.) This argument fails,
as the ALJ explicitly cited to September 2012 and October 2012 treatment notes that
included an assessment of Laviolette’s neck. (See AR 31 (citing AR 416, 420); see also
AR 419.) And, although the ALJ did not specifically cite to them, imaging results of
Laviolette’s neck from about one month after his neck surgery were normal. (See AR
453 (orthopedist Dr. Barnum reporting: “lateral x-rays of the cervical spine show
intact anterior cervical plating, with no change in position, no signs of loosening, and
intact intervertebral device”).)

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Conclusion
For these reasons, the Court finds no error in the ALJ’s analysis of Dr. Gibson’s
opinions, and thus DENIES Laviolette’s motion (Doc. 8), GRANTS the Commissioner’s
motion (Doc. 11), and AFFIRMS the decision of the Commissioner. The Clerk shall
enter judgment on behalf of the Commissioner.
Dated at Burlington, in the District of Vermont, this 27th day of September
2017.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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