United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Judge Lincoln D. Almond filed a Report and Recommendation
(“R&R”) on August 19, 2016 (ECF No. 22),
recommending that the Court deny Plaintiff's Motion to
Reverse the Decision of the Commissioner (ECF No. 15) and
grant the Defendant's Motion for an Order Affirming the
Decision of the Commissioner (ECF No. 19). After careful
consideration of the R&R and Plaintiff's Objection
(ECF No. 23), and pursuant to 28 U.S.C. § 636(b)(1), the
Court ADOPTS the R&R.
Walsh (“Plaintiff”) filed applications for Social
Security Disability benefits and Supplemental Security Income
benefits. Those applications were denied on January 3, 2014.
(Administrative R. 20, ECF No. 9-3.) Plaintiff requested a
hearing, which occurred before Administrative Law Judge
Martha Bower (“ALJ”) in April 2015. The ALJ,
after hearing argument from Plaintiff's counsel and
testimony from several experts, and after reviewing the
documentary evidence, affirmed the denial of Plaintiff's
benefits. (Id. at 20-21.) Plaintiff requested that
the Appeals Council review the ALJ's decision, but that
request was denied. (Id. at 1.)
then filed a Complaint in this Court alleging that his
benefits had been denied in error. (ECF No. 1.) Plaintiff
filed a Motion to Reverse the Decision of the Commissioner
(ECF No. 15) and Defendant filed a Motion for an Order to
Affirm the Decision of the Commissioner (ECF No. 19).
Magistrate Judge Almond recommended denying Plaintiff's
Motion, granting Defendant's Motion, and entering final
judgment in favor of Defendant. (ECF No. 22.)
has filed an Objection to the R&R. (ECF No. 23.)
Plaintiff argues that the ALJ's determination was flawed
in the following three ways: the ALJ (1) failed to properly
weigh the medical opinion evidence; (2) failed to properly
evaluate Mr. Walsh's credibility; and (3) relied on
flawed vocational expert testimony. Additionally, Plaintiff
argues that remand is required because the Appeals Council
failed to consider new material medical evidence. While these
are the same arguments Plaintiff made in his Motion to
Reverse the Decision of the Commissioner (ECF No. 15),
Plaintiff argues that the R&R did not properly address
these four issues. In accordance with 28 U.S.C. §
636(b)(1), the Court considers Plaintiff's Objection to
Plaintiff's Objection regarding the ALJ's
claimant with a disability is entitled to certain social
security benefits. “Disability” is defined as an
“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
has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§
416(i), 423(d)(1); 20 C.F.R. § 404.1505(a). This
requires that the claimant's residual functional capacity
is such that he is unable to do “past relevant work . .
. or any other substantial gainful work that exists in the
national economy.” 20 C.F.R. § 404.1505(a).
Social Security Commissioner has the responsibility to
determine whether a claimant is disabled. See 42 U.S.C.
§ 405(b)(1). The Commissioner's findings are
conclusive if supported by “substantial
evidence.” 42 U.S.C. § 405(g). This standard is
met “if a reasonable mind, reviewing the evidence in
the record as a whole, could accept it as adequate to support
his conclusion.” Irlanda Ortiz v. Sec'y of
Health and Human Servs., 955 F.2d 765, 769 (1st Cir.
1991) (quoting Rodriguez v. Sec'y of Health and Human
Servs., 647 F.2d 218, 222 (1st Cir. 1981)). Therefore,
where the Commissioner has come to a reasonable conclusion,
the Court must affirm even if the Court might have come to a
different conclusion in the first instance. Rodriguez
Pagan v. Sec'y of Health & Human Servs., 819
F.2d 1, 3 (1st Cir. 1987).
case, the ALJ found that Plaintiff was not disabled. The ALJ
assessed the Plaintiff's residual functional capacity and
determined that, while Plaintiff was unable to perform his
past relevant work, Plaintiff was able to do other work.
(Administrative R. 33, ECF No. 9-3.) Plaintiff argued in his
original Motion, and now argues in his Objection, that the
ALJ failed to properly weigh the medical opinion evidence,
failed to properly evaluate Plaintiff's credibility, and
relied upon flawed vocational expert testimony. Magistrate
Judge Almond, after discussing the record and the applicable
standards of review, rejected all of these arguments and
found that the ALJ's determination was based on
“substantial evidence.” The Court agrees.
Plaintiff's first objection, the Court agrees with the
R&R that the ALJ's determination was based on
“substantial evidence.” The ALJ relied on several
medical opinions in the record and testimony from medical expert
Dr. John Pella. (See, e.g., Administrative R. 27, ECF No.
9-3.) Contrary to Plaintiff's argument, and as is
discussed in the R&R, the ALJ was not required to give
controlling weight to the findings of Plaintiff's
treating medical expert (Dr. Deihl) because Dr. Deihl's
findings were not based on “well-supported . . .
medically acceptable clinical and laboratory diagnostic
techniques” and were also controverted by other
“other substantial evidence, ” 20 C.F.R. §
404.1527(c)(2)), including information provided by Dr. Pella,
Dr. Kay, and Dr. Hess. Nor was the ALJ required to give more
weight to the opinion of Plaintiff's treating Licensed
Clinical Social Worker (“LCSW”). The ALJ found
that the LCSW's opinion was not entitled to controlling
weight and was contradicted by other evidence,
including the evaluations of Dr. Kay and Dr. Hess.
(Administrative R. 30, ECF No. 9-3.)
next argues that the ALJ provided no explanation for his
finding that the Plaintiff's statements concerning the
“intensity, persistence and limiting effects” of
Plaintiff's symptoms are “not entirely
credible.” (Obj. 10, ECF No. 23 (quoting Administrative
R. 27, ECF No. 9-3).) The Court agrees with the R&R that
this merits little discussion. (R&R 19 n.5, ECF No. 22.)
Plaintiff conveniently neglects to include the end of the
ALJ's sentence in which the ALJ makes clear that the
Plaintiff's description of his symptoms is “not
entirely credible for the reasons explained in this
decision.” (Administrative R. 27, ECF No. 9-3).) The
ALJ then provides several pages of explanation, citing
various facts in the record and opinions from medical
experts, to come to the conclusion that “the record as
a whole demonstrates . . . that [Plaintiff] is not as
functionally impaired as alleged.” (Id. at
31.) Plaintiff's argument that the ALJ did not explain
her determination is simply untrue.
Plaintiff challenges the ALJ's reliance on the testimony
of a vocational expert. The vocational expert testified that
Plaintiff “would be able to perform the requirements of
representative occupations” and included a list of
examples. (Administrative R. 33, ECF No. 9-3.) Plaintiff
argues that the ALJ, in accepting this expert testimony,
failed to address an “apparent conflict” between
the listed occupations (as defined in the Dictionary of
Occupational Titles (“DOT”)) and the
Plaintiff's identified limitations. Specifically,
Plaintiff argues that his inability to conduct
“frequent reaching” and his need for a
“sit/stand option” are incompatible with the
occupations listed by the vocational expert. (Obj. 12, ECF
explained in the R&R, Plaintiff's argument lacks
merit for two reasons. First, the ALJ need only address
conflicts that have been “identified.” See,
e.g., Senay v. Astrue, No. C.A. 06-548S, 2009 WL 229953,
at *11 (D.R.I. Jan. 30, 2009) (quoting Donahue v.
Barnhart,279 F.3d 441, 446 (7th Cir. 2002)). In this
case, the ALJ specifically “determined that the
vocational expert's testimony is consistent with the
information contained in the [DOT].” (Administrative R.
33, ECF No 9-3.) In addition, Plaintiff's attorney
questioned the vocational expert and never asked about any
potential conflict with the DOT. (See Administrative R.
78-80, ECF No. 9-3.) Since the alleged conflict was not
“identified” at the hearing, the Plaintiff cannot
raise it now. Senay, 2009 WL 229953, at *11 (quoting Donahue,
279 F.3d at 446 (“The ruling requires an explanation
only if the ...