Opinion
CIVIL ACTION NO. 05-12111-RBC.
On January 15, 2006, with the parties' consent this case was reassigned to the undersigned for all purposes, including trial and the entry of judgment, pursuant to 28 U.S.C. § 636(c). (#14)
March 30, 2007
William J. Gately, Jr, Fall River, MA, representing, Paul E. Bourgeois, Jr., Plaintiff.
Mark T. Quinlivan United States Attorney's Office, Boston, MA, representing, Commissioner of Social Security Adminstration, Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR ORDER AFFIRMING THE DECISION OF THE COMMISSIONER (#19)
I. Introduction
On October 21, 2005, plaintiff Paul E. Bourgeois, Jr., (hereinafter "Bourgeois" or "plaintiff") filed a complaint (#1) against defendant Commissioner of the Social Security Administration (hereinafter "the Commissioner" or "defendant"), seeking judicial review of the defendant's decision to deny him social security benefits. The defendant filed an answer (#7) to the complaint on January 3, 2006.
On May 8, 2006, Bourgeois filed the Plaintiff's Brief in Support of Motion for Judgment (#17) seeking the entry of judgment in his favor awarding him Social Security Disability Insurance Benefits or, in the alternative, remand to the Administrative Law Judge (hereinafter "ALJ") for further findings and decision. On August 9, 2006, the Commissioner filed the Defendant's Motion for Order Affirming Decision of the Commissioner (#19) together with a supporting memorandum of law (#20).
No motion for judgment appears on the court docket for this case.
II. Background
Born on April 7, 1968, Bourgeois is a 38 year-old individual. (TR at 36) On December 16, 2003, he filed an application for disability insurance benefits in which he claimed to have become disabled on September 16, 2001, due to lower back problems, headaches, high blood pressure and tendinitis in his right wrist. (TR at 36-47, 65) That application was denied by the Social Security Administration on January 27, 2004. (TR at 33) Bourgeois subsequently filed an application for an appeal of that determination (TR at 48-53), which the Social Security Administration denied on March 8, 2004. (TR at 34) The plaintiff then submitted a request for a hearing by an ALJ. (TR at 35)
On May 26, 2005, a hearing on the plaintiff's application was held. (TR at 22, 180-204) Bourgeois attended that proceeding together with his attorney, William J. Gately, Esquire. (TR at 10; 180) A vocational expert, Ronald A. Briere, was also present and offered testimony. (TR at 10; 180) On June 10, 2005, the ALJ issued his decision in which he ultimately concluded that Bourgeois "was not under a `disability,' as defined in the Social Security Act." (TR at 7-19)
The plaintiff filed a request for review of the hearing decision (TR at 6) which was denied by the Appeals Council on September 15, 2005. (TR at 3-5) Consequent to this denial, the ALJ's decision became the final decision of the Commissioner. Bourgeois filed the instant action pursuant to 42 U.S.C. § 405(g) to have that final decision reviewed.
III. The Facts
In the years preceding his injury, the plaintiff worked as a house painter, commercial cleaner, truck driver, custodian, and retail clerk. (TR at 47, 57, 185-186) He last worked as a house painter prior to his injury in 2001, a job that involved walking, standing, climbing, and lifting objects in excess of 100 lbs. (TR at 58, 186) On or about August 16, 2001, Bourgeois was involved in a motor vehicle accident in which he injured his back. (TR at 78, 85, 87) Following the injury, the plaintiff made three unsuccessful attempts to begin working again, earning $436.36 from Labor Ready Northeast, Inc., $1,539.00 from Jevon Enterprises, Inc. and $317.12 from Robert R. Veronneau. (TR at 43-44, 47) Because he was incapable of performing the work required of him, Bourgeois was unable to maintain employment after the injury. (TR at 186-188)
At other places in the record, the date is noted to be September 16, 2001. (TR at 111) The applicant lists his disability as commencing on September 16, 2001. (TR at 26) The ALJ picked up on the September date in his findings. (TR at 12) The discrepancy is immaterial.
At the administrative hearing, the plaintiff testified that the only other form of income that he has received since his injury is Mass Health and Welfare, including Aid to Dependant Children. (TR at 188) He has three children (TR at 37) but is divorced and lives alone on the first floor of a house. (TR at 184) Bourgeois has a high school education and has earned his Class A tractor trailer license. (TR at 185)
The plaintiff testified that he is approximately 5'9" to 5'10" tall, weighs around three hundred and fifty pounds, and has high blood pressure. (TR at 185, 198) With respect to his injury, Bourgeois explained that his back as well as his left leg bother him a great deal. (TR at 188) He testified that the pain "goes right through [his] back and right into [the] left buttocks, right down to [his] ankle, [his] left leg" and is present "about 93 percent of the time." (TR at 190) Bourgeois also stated that the pain in his leg and back worsened when the weather was cold or rainy. (TR at 191)
According to the plaintiff, he is able to stand for approximately fifteen to twenty minutes before needing to sit down, and is able to sit between twenty-five and thirty minutes before needing to stand. (TR at 193) Bourgeois claimed at the time of the administrative hearing that the most he could lift was about "a gallon of milk" (TR at 193) and the longest he could sleep before being interrupted by pain in his back was an hour-and-a-half to two hours. (TR at 197)
For the most part Bourgeois stays at home, watching television and resting. (TR at 192-193) The plaintiff testified that he is sometimes able to take a brief walk in the morning, but that his mother generally performs household chores for him such as cleaning dishes, cooking, laundry and food shopping. (TR at 192-193) He also claimed that he is unable to drive in his vehicle much further than a mile or two, and can no longer participate in some of his former hobbies such as fishing. (TR at 195-196)
After the motor vehicle accident, he sought medical assistance from Ryan M. Knowles, D.C., a chiropractor at First Choice Chiropractic Rehab, Inc. (TR at 89-114) Dr. Knowles used chiropractic adjustments and other related therapies to treat the plaintiff for his complaints of neck pain, left trapezius pain, headaches, lower back pain and left leg pain. (TR at 94-95) X-rays were taken of Bourgeois' cervical and lumbar regions, with all results coming back negative. (TR at 95) In November, 2001, an MRI was also performed and it revealed a left posterior paracentral herniation of L5/S1 disc. (TR at 76, 95)
At the time of the plaintiff's follow-up examination in November, 2001, Dr. Knowles reported that Bourgeois was responding well to treatment and classified his symptoms as moderate to severe. (TR at 95) He recommended that Bourgeois remain out of work for two to four weeks and continue to receive chiropractic therapy during that time period. (TR at 95-96) Dr. Knowles also stated that the plaintiff's "prognosis for a complete recovery from his condition remains fair to guarded at this time." (TR at 96)
In November, 2001, Dr. Knowles referred the plaintiff to Sergey Wortman, M.D., a local physiatrist at Greater New Bedford Physical Therapy and Sports Rehabilitation. (TR at 78, 95) Bourgeois complained to Dr. Wortman about "lower back pain with radiation to the left leg associated with tingling and numbness in the left foot." (TR at 78) Along with the herniation at L5/S1, Dr. Wortman noted that the MRI which Bourgeois had taken also revealed "a mild diffuse disc bulge" at L4/L5. (TR at 78)
Dr. Wortman physically examined the plaintiff, finding that he was able to reach below his mid shin area with some radiating pain in his left leg. (TR at 78) Bourgeois also experienced pain "on compression of L4, L5, and S1 spinous processes." (TR at 78) Dr. Wortman referred the plaintiff for an EMG/nerve conduction study, the results of which showed that there was "no evidence of lumbar radiculopathy," but that "[i]ncreased insertional activity may represent nerve root irritation." (TR at 79-80, 85)
During a visit to Dr. Knowles in mid-December, 2001, the plaintiff reported a seventy-five percent improvement regarding his neck and headache symptoms, but a limited twenty-five percent improvement in relation to his lower back pain. (TR at 102) While the plaintiff's movements around the office were noted to be "unrestricted," upon palpation Dr. Knowles observed that Bourgeois has experienced "mild pain in the cervical and upper thoracic spine," as well as pain in the lumbar region of his spine. (TR at 102) Dr. Knowles' assessment was that Bourgeois' "symptoms are classified as moderate to severe" and that "[d]ue to the severity of the patient's symptoms and recent lack of improvement involving the lumbar spine, he has been advised not to work at the current time." (TR at 103)
During a follow-up exam in January, 2002, Dr. Wortman noted that the plaintiff was complaining that his condition was worsening. (TR at 85) He prescribed Darvocet, Ultram, Elavil and Neurontin for the pain and referred the plaintiff to the Pain Care Center for an epidural injection. (TR at 85) Dr. Wortman also recommended that Bourgeois see a neurosurgeon for an evaluation and consultation. (TR at 85)
At his next appointment on February 25, 2002, Dr. Wortman noted that Bourgeois had yet to make an appointment at the Pain Care Center and that he had not seen Dr. Knowles for the last few weeks. (TR at 87) Additionally, Dr. Wortman noted that there was not much change in the plaintiff's condition from the prior examination and that Bourgeois remained "temporarily partially disabled." (TR at 87) Dr. Wortman prescribed Percocet, Zanaflex and Lodine XL. (TR at 87)
On March 27, 2002, Bourgeois went to the Pain Care Center and was treated by Wagdy F. Aziz, M.D. (TR at 135) Dr. Aziz performed a physical examination of Bourgeois, ultimately concluding that the plaintiff "has Lumbar Spondylosis, Degenerative Disc Disease, with a probability of Sciatic Neuritis, particularly on the left side, related to the trauma." (TR at 136) After this initial meeting with the plaintiff, Dr. Aziz prescribed the Duragesic Patch, Baclofen and Neurontin. (TR at 136) Dr. Aziz then proceeded to administer a series of three lumbar epidural steroid injections from August, 2002 to November, 2002. (TR at 136-141) Bourgeois continued to seek treatment from Dr. Aziz through January, 2005. (TR at 165)
The plaintiff was discharged from Dr. Knowles' care in August, 2002, although he was last seen for treatment on March 12, 2002. (TR at 111-114) Dr. Knowles wrote that as of March, 2002, Bourgeois "had ongoing symptomotology, loss of function, point tenderness and pathomechanics as well as other clinical signs of injury." (TR at 112) Based upon the 2000 5th Edition of the AMA Guide to Permanent Physical Impairment, Dr. Knowles opined that the plaintiff's level of impairment would be considered a fifteen to eighteen percent whole person. (TR at 113) In his view the plaintiff's chances of returning to his pre-injury status, or for a complete recovery, were only fair, and he recommended that Bourgeois "continue with home therapy and a therapeutic exercise program." (TR at 113)
During the period of April, 2003 through December, 2003, the plaintiff sought treatment at River Road Family Medicine for his high blood pressure. (TR at 115-119) On April 14, 2003, Bourgeois' blood pressure was recorded at 158/96 and 160/108; on April 29, 2003 it was 150/88 and 138/80. (TR at 115) The plaintiff was given a prescription for Accupril which was later changed to Lisonopril. (TR at 116) In the last treatment record from River Road Family Medicine Center dated December, 2003, the plaintiff's blood pressure had dropped to 130/92 and 130/80. (TR at 119)
On December 11, 2003, Bourgeois was treated by Mark A. Mahoney, M.D., at St. Luke's Hospital for sharp chest pain. (TR at 121-122) A radiological report based on a December 11th exam indicates: "CHEST: PA LATERAL VIEWS: Two views of the chest demonstrate no significant abnormalities of the heart, lungs or visualized bony structures. CONCLUSION: Normal examination." (TR at 124) Upon discharge from the hospital, the plaintiff was advised not to smoke, to take a baby aspirin daily, to decrease his activity and to follow-up with Victor Mailey, M.D. (TR at 123)
On January 22, 2004, Gary R. Brissette, M.D., completed a physical residual functional capacity assessment (hereinafter "RFC") on Bourgeois. (TR at 128-134) In his report, Dr. Brissette concluded that the plaintiff can occasionally lift or carry a maximum of twenty pounds, and frequently lift or carry a maximum of ten pounds. (TR at 129) The plaintiff was also determined to be able to stand and/or walk about six hours as well as sit for six hours in an eight-hour work day. (TR at 129) No limitation was found regarding the plaintiff's ability to push and/or pull items. (TR at 129) Dr. Brissette concluded that there were no manipulative, visual, communicative or environmental limitations for the plaintiff, but there were some postural limitations including frequently climbing, balancing, stooping, kneeling, crouching and crawling. (TR at 130-132) It was noted on the RFC that there were no treating or examining source statements regarding the plaintiff's physical capacities in the file. (TR at 132)
Bourgeois was subject to a second RFC on March 3, 2004, which was performed by a different physician, Beth Schaft, M.D. (TR at 149-157) One change between the findings of this report and the January 22, 2004 report is Dr. Schaft's conclusion that the plaintiff can only stand for about two to three hours rather than six in an eight-hour workday. The only other difference is that for all of the activities listed in his postural limitations, Bourgeois is limited to performing them occasionally, rather than frequently. (TR at 150-151)
This spelling may be incorrect. The doctor's handwriting is not too clear and the name stamp is not fully legible.
During the plaintiff's hearing before the ALJ on May 26, 2005, Ronald Briere testified as a vocational expert. (TR at 200-204) Mr. Briere defined Bourgeois' past work as follows: "house painter in the construction industry, semiskilled, heavy exertional; [c]leaner, maintenance man, unskilled medium exertional; [t]ractor trailer, truck driver, skilled, heavy exertional; [a]nd clerk, pet store, retail, unskilled, medium exertional level." (TR at 201) Mr. Briere opined that Bourgeois would not be able to continue performing work in any of his past areas of employment. (TR at 201-202) However, Mr. Briere testified that there were sedentary unskilled jobs which could be performed by someone in the plaintiff's condition, and, further, that there were approximately 10,000 such jobs available in Southeastern Massachusetts and Rhode Island. (TR at 202)
IV. The Standard of Review
Title 42 U.S.C. § 405(g) provides, in relevant part:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow . . . The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . .
The Court's role in reviewing a decision of the Commissioner under this statute is circumscribed:
We must uphold a denial of social security disability benefits unless "the Secretary has committed a legal or factual error in evaluating a particular claim." Sullivan v. Hudson, 490 U.S. 877, 885, 109 S.Ct. 2248, 2254, 104 L.Ed.2d 941 (1989). The Secretary's findings of fact are conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g); see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15, 16 (1 Cir., 1996); see also Reyes Roble v. Finch, 409 F.2d 84, 86 (1 Cir., 1969) ("And as to the scope of court review, `substantial evidence' is a stringent limitation.")
The Supreme Court has defined "substantial evidence" to mean "`more 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) quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Ortiz v. Secretary of Health Human Services, 955 F.2d 765, 769 (1 Cir., 1991). It has been explained that:
In reviewing the record for substantial evidence, we are to keep in mind that "issues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the Secretary." The Secretary may (and, under his regulations, must) take medical evidence. But the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for him, not for the doctors or for the courts. We must uphold the Secretary's findings in this case if a reasonable mind, reviewing the record as a whole, could accept it as adequate to support his conclusion.Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128 (1 Cir., 1981) quoting Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1 Cir. 1981); Geoffroy v. Secretary of Health and Human Services, 663 F.2d 315, 319 (1 Cir., 1981) ("In any event, whatever label the parties or the court ascribe to the procedure used to review the Secretary's decision, statute and long established case law make clear that the court's function is a narrow one limited to determining whether there is substantial evidence to support the Secretary's findings and whether the decision conformed to statutory requirements." (citations omitted)).
In other words, if supported by substantial evidence, the Commissioner's decision must be upheld even if the evidence could also arguably admit to a different interpretation and result. Ward v. Commissioner of Social Security, 211 F.3d 652, 655 (1 Cir., 2000); see also Nguyen v. Chater, 172 F.3d 31, 35 (1 Cir., 1999) (per curiam). Lastly,
Even in the presence of substantial evidence, however, the Court may review conclusions of law, Slessinger v. Sec'y of Health Human Servs., 835 F.2d 937, 939 (1st Cir. 1987) (per curiam) ( citing Thompson v. Harris, 504 F.Supp. 653, 654 [D. Mass. 1980]), and invalidate findings of fact that are "derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts," Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).Musto v. Halter, 135 F.Supp.2d 220, 225 (D. Mass., 2001).
V. Discussion
It is perhaps best to begin with an overview of the legal framework. The burden is on the plaintiff to prove that he is under a disability in order to establish his right to disability insurance benefits. Bowen v. Yuckert, 482 U.S. 137, 146 (1987). As defined in the Social Security Act, disability means 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.
Title 42 U.S.C. §§ 416(I)(1) and 423(d)(1)(A).
The relevant statute further provides that:
An individual shall be determined to be under a disability only if his physical or mental impairment or 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
Title 42 U.S.C. § 423(d)(2).
Thus, as the statute makes plain, a mental or physical impairment alone is not enough. To be entitled to benefits, a claimant also must be unable to engage in substantial gainful work as a result of that impairment. See, e.g., McDonald v. Secretary of Health and Human Services, 795 F.2d 1118, 1119-20 (1 Cir., 1986); Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 6 (1 Cir., 1982) ("Thus, `disability' under this statute has a `medical' part, concerning the nature and severity of a claimant's impairment, and a `vocational' part, concerning the availability of suitable work."); Thomas v. Secretary of Health and Human Services, 659 F.2d 8, 9 (1 Cir., 1981).
In deciding whether a claimant is disabled within the meaning of the Social Security Act, the Commissioner of Social Security employs a five-step evaluation process as established by the SSA regulations. See 20 C.F.R. § 404.1520; Seavey v. Barnhart, 276 F.3d 1, 5 (1 Cir., 2001); Mills v. Apfel, 244 F.3d 1, 2 (1 Cir., 2001), cert. denied, 122 S.Ct. 822 (2002); Goodermote, 690 F.2d 6-7. The applicable regulation provides as follows:
§ 404.1520
*****
(4) The five-step sequential evaluation process. The sequential evaluation process is a series of five "steps" that we follow in a set order. If we can find that you are disabled or not disabled at a step, we make our determination or decision and we do not go on to the next step. If we cannot find that you are disabled or not disabled at a step, we go on to the next step. Before we go from step three to step four, we assess your residual functional capacity. (See paragraph (e) of this section.) We use this residual functional capacity assessment at both step four and step five when we evaluate your claim at these steps. These are the five steps we follow:
(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled. (See paragraph (b) of this section.)
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 404.1509, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled. (See paragraph (c) of this section.)
(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 of this subpart and meets the duration requirement, we will find that you are disabled. (See paragraph (d) of this section.)
(iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled. (See paragraph (f) of this section and § 404.1560(b).)
(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled. (See paragraph (g) of this section and § 404.1560(c).)20 C.F.R. § 404.1520.
However, as noted by the First Circuit, because the determination of whether the applicant is disabled can be reached at any step along the process, all five steps do not necessarily apply to every applicant. Seavey v. Barnhart, 276 F.3d 1, 5 (1 Cir., 2001).
In the instant case, the ALJ reviewed the evidence exhaustively and followed the requisite steps in evaluating Bourgeois' alleged disability. It was determined that the plaintiff had "not engaged in substantial gainful activity since the alleged onset of disability" (TR at 18); that his "degenerative disc disease and obesity are considered `severe' based on the requirements in the Regulations 20 CFR §§ 404.1520(c) and 416.920(c)" (TR at 18); that "[t]hese medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4" (TR at 18); that his "allegations regarding his limitations are not totally credible" (TR at 18); that he had "the residual functional capacity to perform a wide range of sedentary work" (TR at 18); that he is "unable to perform any of his past relevant work" (TR at 18); that "although the claimant's exertional limitations do not allow him to perform the full range of sedentary work, using Medical-Vocational Rule 201.28 as a framework for decision-making, there are a significant number of jobs in the national economy that he could perform" (TR at 19); and lastly, that he "was not under a `disability,' as defined in the Social Security Act, at any time through [June 10, 2005]." (TR at 19)
Bourgeois contends that the ALJ committed reversible error because his decision was not supported by substantial evidence. In particular, the plaintiff claims the ALJ's finding that "the claimant's allegations regarding his limitations are not totally credible" was not supported by the record because the ALJ failed to give controlling weight to the opinions of the treating physicians, Drs. Aziz, Knowles and Wortman. However, in this circuit, ALJs are not always required "to give greater weight to the opinions of treating physicians." Arroyo v. Sec. of Health and Human Services, 932 F.2d 82, 89 (1 Cir., 1991) (citation omitted); see also Porcher v. Barnhart, 394 F. Supp.2d 288, 296 (D. Mass., 2005). Instead, the opinions of treating physicians are only given extra weight when the "opinion is well-supported by medically acceptable diagnostic techniques and is not inconsistent with other substantial evidence of the record." DaCosta v. Apfel, 81 F. Supp.2d 235, 241 (D. Mass., 2000) citing 20 C.F.R. § 404.1527.
While the ALJ adopted neither Dr. Knowles' position that Bourgeois was "disabled," nor Dr. Wortman's view that the plaintiff was partially disabled, he nonetheless took the opinions of Dr. Aziz, Dr. Knowles, and Dr. Wortman into consideration when reaching his final decision. In denying the plaintiff's claim, the ALJ first pointed to the lack of medical evidence showing that Bourgeois' alleged headaches and tendinitis of the wrist were severe impairments. (TR at 13) The ALJ found that there was no information in the records of Dr. Wortman or Dr. Aziz which reflected treatment for either of these symptoms. (TR at 13) While Dr. Knowles' records indicated that the plaintiff did indeed complain of headaches after his motor vehicle accident, the headaches were also described as improved by seventy-five percent as of December, 2001. (TR at 13) Because there was no further medical evidence presented regarding these symptoms, the ALJ was well within his realm of discretion in concluding that they were not severe impairments within the meaning of the regulations.
The more contentious issue is whether there was substantial evidence supporting the ALJ's decision that the plaintiff's degenerative disc disease and obesity were not severe enough to qualify him as having a disability as defined by the Social Security Act. Since Bourgeois' symptoms did not meet one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4, the ALJ was required to determine whether the plaintiff retained the residual functional capacity to perform the requirements of his past work or other work existing in significant numbers in the economy. In performing this analysis, more than just evidence of an impairment is required in order to find the plaintiff disabled. DaCosta, 81 F. Supp.2d at 239. This is where Bourgeois' claim falters.
Although the ALJ did find that the plaintiff was unable to perform any of his past relevant work, he also decided that Bourgeois could perform sedentary work which was available in a significant number of jobs in the national economy. In his opinion, the ALJ stated that he had given "careful consideration to the medical opinions in the record and has weighed them in accordance with the criteria listed in 20 CFR 404.1527 and 416.927." (TR at 16) Indeed, the ALJ's opinion includes a number of references to the medical records of Dr. Aziz, Dr. Knowles and Dr. Wortman. The only statements of the treating physicians to which the ALJ did not accord significant weight were those concerning the plaintiff's status as "disabled." This was not an error on the part of the ALJ because it is his role, and not that of the treating physicians, to make the determination whether a claimant is "disabled." See, e.g., Coggon v. Barnhart, 354 F. Supp.2d 40, 56 (D. Mass., 2005).
While Dr. Knowles and Dr. Wortman may have considered the plaintiff to be disabled, those opinions are not binding upon the ALJ. Further, there was substantial evidence in the record which supported his decision that the plaintiff was not disabled. In finding that Bourgeois was able to perform sedentary work, the ALJ looked to the plaintiff's RFCs as well as the testimony from the vocational expert. The RFCs included information which detailed the types of activities the plaintiff was capable of performing. The vocational expert specifically testified that someone with the plaintiff's limitations is able to perform sedentary work. In short, the ALJ's evaluation of the treating physicians' opinions was properly undertaken, and his conclusion that the plaintiff was not disabled within the meaning of the Social Security Act is supported by substantial evidence.
Also challenged is the ALJ's finding with respect to Bourgeois' credibility vis-a-vis his complaints of pain. A review of the ALJ's opinion clearly shows that the evidence was fully evaluated as required by the regulations and case law. (TR at 14-15) After considering the relevant factors, the ALJ concluded that:
In developing evidence of pain or other symptoms, it is essential to investigate all avenues presented that relate to subjective complaints, including the claimant's prior work record and information and observations by treating and examining physicians and third parties, regarding such matters as:
1. The nature, location, onset, duration, frequency, radiation, and intensity of any pain;
2. Precipitating and aggravating factors (e.g., movement, activity, environmental conditions);
3. Type, dosage, effectiveness, and adverse side-effects of any pain medication;
4. Treatment, other than medication, for relief of pain;
5. Functional restrictions; and
6. The claimant's daily activities.Avery v. Secretary of Health Human Services, 797 F.2d 19, 29 (1 Cir., 1986); 20 C.F.R. § 404.1529.
If the claimant's symptoms are as severe as he claims, it would be reasonable to expect that he would have actively sought out a new doctor when his former doctor retired and that by some means he would have made effective arrangements for the renewal of his prescriptions for pain medications. Despite these reservations, however, the claimant's allegations regarding his need to change positions frequently, his limitation with respect to lifting, and his lack of mental clarity are found to be credible in light of their consistency with the overall record.
TR at 16.
The plaintiff takes issue with the fact that although the ALJ found his allegations of pain to be consistent throughout the record, those allegations were determined not to be fully credible.
The ALJ has the right to make credibility judgments, and such judgments are "entitled to deference, especially when supported by specific findings." Frustaglia v. Secretary of Health and Human Services, 829 F.2d 192, 195 (1 Cir., 1987) (citation omitted). In this case, the ALJ noted that since the time the plaintiff's treating physician, Dr. Aziz, retired in January, 2005, up until the time of the administrative hearing some five months later in May, 2005, Bourgeois had not established a relationship with a new doctor, nor had he received any refills on his pain medications. It was certainly within the ALJ's discretion to conclude from these findings that although the plaintiff suffered pain as reflected in the medical records and in his testimony, the degree of pain was not as severe as Bourgeois claimed. The ALJ's conclusion is supported by substantial evidence and shall not be disturbed.
VI. Conclusion and Order
For the reasons stated, it is ORDERED that the Defendant's Motion For Order Affirming The Decision Of The Commissioner (#19) be, and the same hereby is, ALLOWED. Judgment shall enter for the defendant.