Opinion
C. A. 22-228JJM
06-07-2023
CHAD B., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
On August 1, 2019, Plaintiff Chad B., a “younger individual” who last worked as an electrician's apprentice in September 2018, applied for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to Titles II and XVI of the Social Security Act (the “Act”). In his applications, Plaintiff alleged disability as of September 20, 2018, based on “Internal Bleeding has had half of Colon removed,” severe kidney stones, septic pulmonary embolism, endocarditis and “IV drug abuse.” Tr. 69-70. As his application proceeded, Plaintiff focused on his alleged impairments of Crohn's disease and inflammatory bowel syndrome (“Crohn's/IBS”). Tr. 194, 344-45. Plaintiff's applications were denied by the Acting Commissioner of Social Security (“Commissioner”) based on the decision of an administrative law judge (“ALJ”) who found that he retained the RFC to perform light work with additional postural, environmental and mental limitations. Tr. 20-32.
RFC refers to “residual functional capacity.” It is “the most you can still do despite your limitations,” taking into account “[y]our impairment(s), and any related symptoms, such as pain, [that] may cause physical and mental limitations that affect what you can do in a work setting.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
Plaintiff has moved for reversal of this adverse decision. In his motion, Plaintiff alleges that the ALJ erred in (1) finding that Plaintiff's Crohn's/IBS is non-severe and in failing to incorporate limitations - the need for bathroom breaks with proximity to a restroom and time off due to gastrointestinal pain or toilet time - caused by Crohn's/IBS in his RFC; (2) failing to include moderate social limitations based on the findings of the consultative examining psychologist, Dr. Alexander Turchetta; and (3) failing properly to analyze Plaintiff's subjective statements about the symptoms of Crohn's/IBS in violation of the First Circuit's decision in Avery v. Sec'y of Health & Human Svcs., 797 F.2d 19 (1st Cir. 1986) and Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304 (Oct. 25, 2017). ECF No. 11 at 11-20. The Commissioner has filed a counter motion to affirm. ECF No. 13. The matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
II. Standard of Review
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla - that is, the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981); Brown v. Apfel, 71 F.Supp.2d 28, 30 (D.R.I. 1999), aff'd, 230 F.3d 1347 (1st Cir. 2000) (per curiam). Once the Court concludes that the decision is supported by substantial evidence and that the Commissioner correctly applied the law, the ALJ's decision must be affirmed, even if the Court would have reached a contrary result as finder of fact. Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987). The determination of substantiality is based upon an evaluation of the record as a whole. Brown, 71 F.Supp.2d at 30. The Court may not reinterpret or reweigh the evidence or otherwise substitute its own judgment for that of the Commissioner. Id. at 30-31 (citing Colon v. Sec'y of Health & Human Servs., 877 F.2d 148, 153 (1st Cir. 1989)). “[T]he resolution of conflicts in the evidence is for the Commissioner, not the courts.” Id. at 31 (citing Rodriguez, 647 F.2d at 222).
III. Disability Determination
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); 20 C.F.R. § 404.1505(a). The impairment must be severe, making the claimant unable to do previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-1511.
The Social Security Administration has promulgated identical sets of regulations governing eligibility for DIB and SSI. See McDonald v. Sec'y of Health & Human Servs., 795 F.2d 1118, 1120 n.1 (1st Cir. 1986). For simplicity, I cite only to one set of these regulations.
A. The Five-Step Evaluation
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. § 404.1520(a). First, if a claimant is working at a substantial gainful activity, the claimant is not disabled. Id. § 404.1520(a)(4)(i). Second, if a claimant does not have any impairment or combination of impairments that significantly limit physical or mental ability to do basic work activities, then the claimant does not have a severe impairment and is not disabled. Id. § 404.1520(a)(4)(ii). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Appendix 1, the claimant is disabled. Id. § 404.1520(a)(4)(iii). Fourth, if a claimant's impairments do not prevent doing past relevant work, the claimant is not disabled. Id. § 404.1520(a)(4)(iv). Fifth, if a claimant's impairments (considering RFC, age, education and past work) prevent doing other work that exists in the local or national economy, a finding of disabled is warranted. Id. § 404.1520(a)(4)(v). The claimant bears the burden of proof at Steps One through Four, but the Commissioner bears the burden at Step Five. Sacilowski v. Saul, 959 F.3d 431, 434 (1st Cir. 2020); Wells v. Barnhart, 267 F.Supp.2d 138, 144 (D. Mass. 2003).
B. Opinion Evidence
An ALJ must consider the persuasiveness of all medical opinions in a claimant's case record. See 20 C.F.R. § 404.1520c. The most important factors to be considered when the Commissioner evaluates persuasiveness are supportability and consistency; these are usually the only factors the ALJ is required to articulate. 20 C.F.R. § 404.1520c(b)(2); Jones v. Berryhill, 392 F.Supp.3d 831, 839 (M.D. Tenn. 2019); Gorham v. Saul, Case No. 18-cv-853-SM, 2019 WL 3562689, at *5 (D.N.H. Aug. 6, 2019). Supportability “includes an assessment of the supporting objective medical evidence and other medical evidence, and how consistent the medical opinion or . . . medical finding[] is with other evidence in the claim.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844, 5859 (Jan. 18, 2017). Other factors that are weighed in light of all of the evidence in the record include the medical source's relationship with the claimant and specialization, as well as “other factors” that tend to support or contradict the medical opinion or finding. See 20 C.F.R. § 404.1520c(c)(1)-(5).
B. Step Two Determination
Step Two is a screening device used to eliminate applicants “whose impairments are so minimal that, as a matter of common sense, they are clearly not disabled from gainful employment.” McDonald, 795 F.2d at 1122. At Step Two, Plaintiff has the burden to show that he had a “medically determinable” physical or mental impairment(s) that significantly limited his ability to do basic work activity at the relevant time. Luz R. v. Saul, C. A. No. 19-00307-WES, 2020 WL 1026815, at *6 (D.R.I. Mar. 3, 2020), adopted by text order, (D.R.I. Mar. 30, 2020). An error at Step Two does not require remand as long as the sequential analysis continues and limitations caused by symptoms related to the overlooked impairment are incorporated into the RFC. White v. Colvin, No. 14-171 S, 2015 WL 5012614, at *8 (D.R.I. Aug. 21, 2015); see Courtemanche v. Astrue, No. CA 10-427M, 2011 WL 3438858, at *15 (D.R.I. July 14, 2011) (any error at step two is harmless “absent any specific showing by Plaintiff of any particular functional limitations attributable to [the impairment] that the ALJ failed to consider in making his RFC finding”), adopted, 2011 WL 3421557 (D.R.I. Aug. 4, 2011).
C. Claimant's Subjective Statements
A reviewing court will not disturb a clearly articulated credibility finding based on substantial supporting evidence in the record. See Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987). Guidance in evaluating the claimant's statements regarding the intensity, persistence and limiting effects of subjective symptoms, including pain, is provided by SSR 16-3p, 2017 WL 5180304, at *2-3, which directs the ALJ to consider the entire case record, including the objective medical evidence, the individual's statements, statements and other information provided by medical sources and other persons, and any other relevant evidence, as well as whether the subjective statements are consistent with the medical signs and laboratory findings. Id. at *2-5. In this Circuit, the SSR 16-3p requirements are also reflected in Avery, 797 F.2d at 28-29, which requires examination of considerations capable of substantiating subjective complaints of pain including: (1) daily activities; (2) the location, duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness and side effects of any medication taken to alleviate the pain or other symptoms; (5) treatment, other than medication, received for relief of pain; (6) any other measures used to relieve pain or other symptoms; and (7) any other factors relating to the claimant's functional limitations and restrictions attributable to pain. Cookson v. Colvin, 111 F.Supp.3d 142, 154 (D.R.I. 2015). As the First Circuit recently emphasized, in the absence of direct evidence to rebut a claimant's testimony about subjective symptoms, such statements should be taken as true. Sacilowski, 959 F.3d at 441; Tegan S. v. Saul, 546 F.Supp.3d 162, 169 (D.R.I. 2021). That is, if proof of disability is based on subjective evidence and a credibility determination is critical to the decision, the subjective statements must either be explicitly discredited or the implication of lack of credibility must be so clear as to amount to a specific credibility finding. Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995); Vanessa C. v. Kijakazi, C. A. No. 20-363MSM, 2021 WL 3930347, at *4 (D.R.I. Sept. 2, 2021), adopted, 2021 WL 8342850 (D.R.I. Nov. 2, 2021).
Although an individual's subjective statements as to pain are not conclusive of disability, 42 U.S.C. § 423(d)(5)(A), an ALJ's “extreme insistence on objective medical findings to corroborate subjective testimony of limitation of function because of pain” is error. Amanda B. v. Kijakazi, C. A. No. 21-308MSM, 2022 WL 3025752, at *3 (D.R.I. Aug. 1, 2022) (internal quotation marks omitted), adopted, 2022 WL 18910865 (D.R.I. Nov. 7, 2022). Nevertheless, a reviewing court will not disturb a clearly articulated finding discounting such statements as long as it is based on substantial supporting evidence in the record. See Frustaglia, 829 F.2d at 195. IV. Background and Analysis
A. Crohn's Disease/IBS
In 2013, long prior to the period in issue, Plaintiff had a surgical bowel resection due to a gastrointestinal impairment diagnosed as Crohn's/IBS; the record has no material from that period, so the precise diagnosis is unknown, although it appears that it was then a serious impairment. However, the medical record for the period in issue now has little information reflecting current difficulties from Crohn's/IBS.
During 2018 (the year of alleged onset), the only references to Crohn's/IBS appear in the Miriam Hospital/Bannister Nursing treating records from a hospitalization/rehabilitation course of treatment for endocarditis during September/October 2018. These records note that Plaintiff's medical history includes a diagnosis of “Crohn's with [history of] bowel resection,” Tr. 353, 1148, but also note normal findings (soft, no distension, no tenderness) on physical examination of the abdomen, Tr. 1143, “GI [Gastrointestinal] Factors noted are [n]o abnormal findings,” Tr. 366, and a diagnoses list that includes Crohn's disease, “unspecified, without complications,” and IBS, “without diarrhea.” Tr. 398. There is no notation of any symptoms or treatment related to the diagnosis of Crohn's/IBS.
In 2019, Plaintiff advised his new primary care physician at Thundermist of his “past medical history” of Crohn's, stating that “he had half [of his] stomach removed when he was 25.” Tr. 1076. However, he reported no symptoms and received no treatment for this condition. In August and September 2019, Plaintiff was treated at Kent Hospital for kidney stones. Tr. 511670. As to Crohn's/IBS, this record indicates, “stable, no complaints of active disease.” Tr. 619. Then in October 2019, Plaintiff was hospitalized at Rhode Island Hospital (“RIH”) for a pulmonary embolism. Tr. 717. On admission, Plaintiff reported his history of Crohn's and “said [he] get[s] constipated with Crohn's flare.” Tr. 678. For current symptoms, Plaintiff reported that, three days prior to presenting at the hospital, he began experiencing a sharp epigastric abdominal pain with diarrhea. Tr. 694, 718. For treatment of diarrhea during the hospital stay, Plaintiff was given over-the-counter Imodium. Tr. 719. The RIH discharge summary notes that this symptom resulted in the finding of “Mild abdominal pain (unclear etiology) Suspect 2/2 underlying Crohn's disease,” Tr. 720, but the only recommendation for ongoing treatment is “[Imodium] as needed”; on discharge, Plaintiff had a normal “GI” physical examination. Tr. 723. The “active problems” list at discharge does not mention gastrointestinal issues or Crohn's/IBS. Tr. 717. At the follow up appointment with the primary care physician at Thundermist in November 2019, there is no reference to Crohn's/IBS and no reference to the symptoms of ongoing diarrhea/constipation or the need for frequent toilet access, nor is there any suggestion of any need for treatment associated with these issues. Tr. 1067-71.
The sparse treating records from 2020 are similarly devoid of references to symptoms related to Crohn's/IBS. Tr. 1303-04. During the single encounter with the primary care physician on June 3, 2020, the treating note reflects that Plaintiff was returning to care after a gap for completion of disability paperwork. Id. It contains no reference to any complaints of or treatment for Crohn's/IBS-related symptoms.
On review of this file, the non-examining expert physician at the initial phase (Dr. Joseph Callaghan) opined “no difficulty [with] colitis since surgery [in] 2013. NSI.” Tr. 76, 88. The physician expert at the reconsideration phase (Dr. Elizabeth Conklin) similarly accepted the impairments of Crohn's/IBS and specifically considered the RIH record from October 2019, along with the rest of the medical file assembled as of her review. Based on her medical expertise, she found Plaintiff's digestive system impairments to be non-severe. Tr. 94, 105; see Tr. 98 (“Medical history is significant for Crohn's disease s/p bowel resection with improvement. NSI.”). The ALJ found their findings persuasive and relied on them at Step Two and at the RFC phase. Tr. 30. See Vanessa C., 2021 WL 3930347, at *6 (appropriate for ALJ to rely on non-examining expert findings along with other evidence at Step Two). At both phases of the sequential process, the ALJ appropriately set out the other evidence on which he relied to support these conclusions.
Plaintiff quibbles with Dr. Conklin's use of the term “improvement,” arguing that the evidence for the period in issue does not reflect that Crohn's/IBS improved. This argument is unavailing - Dr. Conklin was relying on the evidence reflecting that, in 2013, Crohn's disease was so serious as to require surgery, but had improved to the point that, by the period in issue, it was causing virtually no reported symptoms and requiring virtually no treatment.
Plaintiff's challenge to the ALJ's marshalling of the supportive facts focuses on just one of the ALJ's findings - that the record does not reflect treatment for the symptoms of Crohn's/IBS through prescribed medications. To support the argument, Plaintiff asks the Court to consider a list of prescription medications that includes a prescription for a drug (dicyclomine) that Plaintiff argues is used to treat IBS. This aspect of the argument fails because the document listing dicyclomine indicates that it was prescribed in 2011, Tr. 547, 644, before the bowel resection surgery and long prior to the period in issue. Otherwise, Plaintiff relies on references to over-the-counter (not prescription) medications (Imodium and Miralax) that could treat Crohn's/IBS symptoms, but points to nothing suggesting that they were prescribed to treat serious and ongoing gastrointestinal symptoms. Thus, Plaintiff cites a record indicating that he was given Miralax to treat constipation in October 2018, during the hospitalization for endocarditis; this record reflects methadone adjustments, a finding of “[n]o abnormal [GI] findings,” and a report of no constipation at discharge. Tr. 354-55, 366, 377. Plaintiff also cites to the time-limited use of Imodium (at discharge, ten capsules of Imodium with no refills, Tr. 717) in October 2019 when he had a bout of diarrhea preceding and during the hospitalization for a pulmonary embolism. Tr. 677-85, 718-20. Collectively, these records support what the ALJ found: that Plaintiff's “gastrointestinal impairments are chronic conditions that are manageable with intermittent monitoring,” as well as that “he is not prescribed medications for [the “significant symptoms” that Plaintiff claims] nor does he treat with a gastroenterologist.” Tr. 23 (emphasis supplied). The ALJ's finding is also supported by Plaintiff's testimony. See Tr. 5153 (Plaintiff confirms during hearing that, apart from methadone, he does not take any prescribed medication for any conditions except blood thinner for blood clots, as well as that he is not “in any ongoing treatment with any specialists for . . . Crohn's disease.”). I find that the intermittent use of over-the counter medications to treat occasional constipation and diarrhea does not undermine the ALJ's finding that “[Plaintiff] is not prescribed medications for” Crohn's/IBS. Tr. 23.
Unavailing for the same reason is Plaintiff's argument that he was “prescribed” medical marijuana, which “can also be used for treatment of a variety of impairments including IBS.” ECF No. 11 at 12. The cited reference is to a 2014 recommendation for marijuana use. Tr. 426.
That leaves Plaintiff's claim during the hearing that, every day, he experiences stomach cramps upon waking that require him to spend an hour in the toilet, Tr. 49-50, after which he returns to the toilet five to six times over the course of eight hours, with each visit consuming thirty minutes, for a total of between three and a half to four hours during each workday spent in the toilet. Tr. 57-58. Plaintiff testified that such a time-consuming need to be on the toilet and the accompanying pain has limited his ability to shop and prevents him from attending church. Tr. 59-60. Contradicting this testimony is Plaintiff's function report, which makes no mention of these extreme symptoms; to the contrary, the function report reflects Plaintiff's report that he is able to shop in stores, go outside daily, walk two blocks, drive and use public transportation with no mention of limits caused by gastrointestinal pain or the need to use the toilet. Tr. 307-14. Nor are these extreme symptoms mentioned in any treating record. See Rosado v. Kijakazi, Case No. 3:20-cv-30124-KAR, 2021 WL 5567397, at *8 (D. Mass. Nov. 29, 2021) (collecting cases, rejecting claimant's step-two argument because he failed to establish a more limited RFC); Joseph N. v. Berryhill, C. A. No. 17-375 WES, 2018 WL 2722461, at *7 (D.R.I. June 6, 2018) (“While Plaintiff has referenced evidence of sensory loss, he fails to establish how these findings establish greater limitations to his RFC. As Plaintiff bears the burden of establishing his RFC and he failed to demonstrate more restrictive limitations than imposed by the ALJ, he has failed to demonstrate any error by the ALJ.”) (internal citation omitted).
Having sifted through the entirety of this record with particular focus on Plaintiff's argument regarding gastrointestinal symptoms, I find that the ALJ made well-supported findings to support both the Step Two and the RFC determinations regarding the symptoms of Crohn's/IBS. Further, to the extent that the ALJ's statement that Plaintiff was not prescribed medications for Crohn's/IBS could somehow be deemed to be error in light of Plaintiff's having been medicated with over-the-counter medications for constipation over a few days in 2018 and for diarrhea over a few days in 2019, any such error is harmless because the ALJ continued the sequential analysis and based his RFC on the medical opinion from the expert physicians, who considered Crohn's/IBS and examined the medical records reflecting medication for constipation and diarrhea (as well as the balance of the medical record).
Based on the foregoing, I find that Plaintiff is simply wrong to suggest that “the overall medical evidence is such that a ‘reasonable mind might accept as adequate to support a conclusion' of disability” based on Crohn's/IBS. ECF No. 11 at 14 (quoting Carlos N. v. Kijakazi, C. A. No. 20-398-MSM-PAS, 2021 WL 5231949, at *8 (D. R.I. Nov. 21, 2021), adopted, 2022 WL 103322 (D.R.I. Jan 11, 2022). To the contrary, the ALJ's Step Two and RFC findings are well supported. Further, the ALJ's failure to include RFC limitations based on the need for bathroom breaks, proximity to a restroom, and off-task time due to gastrointestinal pain or toilet time, is not error because nothing in this medical record supports such limitations. See Keith S. v. Berryhill, C. A. No. 17-00503-JJM, 2018 WL 6599876, at *8 (D.R.I. Dec. 17, 2018) (no remand because, even if error to find IBS non-severe, record does not support RFC limitation related to frequent bathroom use with no follow-up appointments for IBS and claimant's denial of diarrhea or other bowel issues at most appointments). Finding no error at either Step Two or in the RFC, I do not recommend remand.
B. ALJ's Reliance on Report of Consulting Psychologist Dr. Turchetta
The record contains a consulting examination report of a state agency psychologist, Dr. Turchetta. Tr. 1124-28. Plaintiff argues that the ALJ erred in failing to include a moderate social limitation based on Dr. Turchetta's opinion that Plaintiff “would likely struggle to a moderate extent to make judgments on . . . his co-workers and his supervisors,” although Dr. Turchetta also found that Plaintiff's “social reasoning and judgment is appropriate.” Tr.1126.
The ALJ considered and relied on most of the opinions in Dr. Turchetta's report, finding them persuasive, except that he found the finding of “moderate limitations in social interaction,” less persuasive because it is “inconsistent with Dr. Turchetta's own findings.” Tr. 29-30. To support this determination, the ALJ cited Dr. Turchetta's finding that Plaintiff was “cooperative and established a rapport with the examiner” and that “[h]is comprehension and judgment of social situations was intact,” as well as the balance of the record, which establishes Plaintiff's unimpaired ability to interact with others and lack of mental health treatment. Id. The ALJ also cited the function report in which Plaintiff himself confirmed the lack of social limitations. Tr. 27, citing Tr. 312 (Plaintiff reports that he has no problems getting along with family, friends, neighbors or others); Tr. 313 (Plaintiff reports that he gets along well with authority figures and has never been laid off or fired because of problems getting along with other people). In addition, the ALJ relied on the findings of the non-examining expert psychologist (Dr. Marsha Hahn), who reviewed the Turchetta report along with the rest of the record and opined to mild social limits, with no significant RFC limits in the ability to work with others. Tr. 92-96. That is, the ALJ resolved the conflict in the evidence from the medical experts by relying on one expert psychologist (Dr. Hahn) over another (Dr. Turchetta). Tr. 30; see Morales v. Comm'r of Soc. Sec., 2 Fed.Appx. 34, 36 (1st Cir. 2001) (per curiam) (ALJ must resolve conflicts in evidence).
The ALJ's decision also found “less persuasive” Dr. Turchetta's finding of moderate limits in responding to customary work pressures. Tr. 29. Plaintiff's argument ignores this finding, doubtless because it is echoed by the finding of the non-examining expert psychologist at the reconsideration phase, which the ALJ found persuasive and relied on in setting mental RFC limits.
Plaintiff argues that Dr. Hahn did not consider the Turchetta report. This argument requires the Court to ignore the “Updated psych note” in the reconsideration phase Disability Determination Explanation that expressly describes the findings in the Turchetta report, which had been received almost three weeks before Dr. Hahn signed her opinions. Tr. 93, 104. This unfounded argument should be disregarded.
Finding that the ALJ's approach to the Turchetta report is consistent with applicable law and well supported by the evidence of record, I conclude that there is no error. I do not recommend remand.
C. Plaintiff's Subjective Statements
The Court need not linger long on Plaintiff's argument that the ALJ committed error in discounting his hearing testimony that the symptoms of Crohn's/IBS caused debilitating pain and required him to spend more than three hours a day on the toilet. The Court's survey of the record confirms that the ALJ considered Plaintiff's subjective statements and appropriately relied on an array of evidence that contradicts them, including not just the objective evidence of consistently normal abdominal examinations, but also the evidence reflecting daily activities, minimal treatment and the near complete absence of complaints of gastrointestinal difficulties to treating providers except during the short periods of constipation/diarrhea in 2018 and 2019. See Vanessa C., 2021 WL 3930347, at *4. Plaintiff's own statements in the function report also clash with his hearing testimony. Compare Tr. 60 (stomach cramps are so severe Plaintiff has stopped going to church because he cannot sit in pew), with Tr. 307-14 (Plaintiff is able to shop in stores, go outside daily, walk two blocks, drive and use public transportation; no mention of limit based on need to use toilet). There is no error in the ALJ's approach to Plaintiff's subjective statements.
V. Conclusion
Based on the foregoing, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 11) be DENIED and the Commissioner's Motion to Affirm her Decision (ECF No. 13) be GRANTED. Any objection to this report and recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen (14) days of its receipt. See Fed.R.Civ.P. 72(b)(2); DRI LR Cv 72(d). Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district judge and the right to appeal the Court's decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).