354 F.Supp.2d 40 (2005) | Cited 13 times | D. Massachusetts | February 3, 2005



This action is brought under sections 205(g) and 1631(c)(3) of theSocial Security Act, codified at 42 U.S.C. §§ 405(g) and 1383(c)(3),seeking judicial review of a final decision of the Commissioner of theSocial Security Administration (the "Commissioner"). The plaintiff MaryCoggon ("Coggon") challenges the decision of the Administrative Law Judge("hearing officer") denying her Supplemental Security Income ("SSI") andDisability Insurance Benefits ("DIB"). Coggon argues that the decision ofthe hearing officer was not supported by substantial evidence andcontained errors of law and that he "misapplies the disability standard,and fails to adequately consider the opinion ofPage 2[Coggon's] treating physician." Pl.'s Motion to Reverse or RemandDecision [Doc. No. 5] at 1; Pl.'s Memorandum in Support of Motion toReverse or Remand [Doc. No. 9] at 1 ("Pl.'s Mem."). Coggon requests thatthis Court reverse the decision, or in the alternative, remand the casefor reconsideration. The Commissioner filed a cross motion to affirm thedecision of the Commissioner. Def.'s Motion for Order Affirming theDecision of the Commissioner [Doc. No. 11] at 1; Def.'s Memorandum inSupport of the Decision of the Commissioner [Doc. No. 12] at 21 ("Def.'sMem.").


A. Procedural History

Coggon filed for SSI and DIB on June 14, 2000, alleging she becamedisabled on June 9, 2000. R. at 93-95, 242-245. The Commissioner deniedCoggon's claim on November 6, 2000. Id. at 63-68. Upon a request forreconsideration, Coggon's application was reevaluated and her claim wasagain denied on January 12, 2001. Id. at 70-73, 248-251. Coggon requestedand was granted a hearing before a hearing officer which was held onNovember 30, 2001. Id. at 27, 76. After the hearing and a review of theevidence, the hearing officer denied Coggon's claim on September 21,2002, because: (1) she had not established that she was disabled underthe Social Security guidelines, (2) she was capable of doing other work,and (3) her testimony was notPage 3entirely credible. Id. at 15-25; Pl.'s Mem. at 4; Def.'s Mem. at 2.Coggon petitioned the Social Security Appeals Council for a review of thedecision of the hearing officer, but her request was denied on September15, 2003. R. at 8. The decision of the hearing officer thus constitutedthe final decision of the Commissioner. Id. On December 31, 2003, Coggonfiled the instant action in this Court to review the decision of theCommissioner pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Pl.'sComplaint [Doc. No. 3](filed Dec. 31, 2003) ("Pl.'s Compl.").

Coggon argues that the Commissioner's decision was incorrect as matterof law because the "substantial evidence of record . . . does not supportthe conclusion that the plaintiff is not disabled" and because the"Commissioner's decision is based on errors of law, as it violates theSocial Security Act, 42 U.S.C. § 401 et. seq. and controllingregulations, fails to properly apply the regulations concerning treatingsource opinions, and mischaracterizes the evidence." Pl.'s Compl. at 4.Coggon requests this Court: (1) reverse and award her benefits or remandthe matter to the Commissioner, (2) grant her attorney's fees and costs,and (3) grant her "additional and alternative relief as equity andjustice may require." Id.

B. Factual BackgroundPage 4

Coggon was born on February 28, 1954, in Brockton, Massachusetts. R. at30. She has a high school diploma and an Associate Degree from QuincyJunior College in Science/prenursing. See id. at 30-31. She also attendedMassasoit Community College but dropped out after one year, id. at 31,she claims due to anxiety. See id. at 143. She was married, had a childin 1972, and later divorced in 1975. Pl.'s Compl. at 2. There are claimsthat Coggon was the victim of domestic abuse. R. at 143. Coggon has a sonwho was 29 years old at the time of the hearing. Id. at 31-32. Coggonlived alone in a first-floor apartment in Somerset. Id. at 32. Coggon hada driver's license and drove "to stores and doctors' appointments" usingapproximately a tank of gas per week. Id. at 32-33, 40-41. Coggon "iscapable of dressing and bathing, using the stove, putting dishes in thesink, laundry in the washer, if it is not heavy. . . . She is capable ofinteracting, going to the store to get items, and capable of cashing acheck or using an ATM." Id. at 144 (Dr. Slayton's ConsultativeExamination Report).

In 1991, Coggon ended her Aid to Families with Dependent Children("AFDC") support and worked as a self-employed house cleaner from 1991 toJune of 2000, for which income she filed and paid taxes, and during whichtime she also raised her son. Id. at 34-35; Pl.'s Compl. at 2; Pl.'sMem. at 2. Upon terminating her work, she pursued and receivedMassachusetts Emergency Aid to Elderly, Disabled and Children benefits("EAEDC") rather thanPage 5unemployment benefits. R. at 35. Coggon's present monthly incomeis $303.80 from EAEDC and food stamps. Id. at 32.

1. Medical Evidence

a. Rheumatoid Arthritis

Coggon had an oophorectomy1 in 1995 at New England Medical Center.Id. at 39; Pl.'s Mem. at 2. Coggon asserts she did not "recover from thatsurgery quite as great as [she] thought [she] would" and claims theproblems with her feet arose after the surgery. R. at 39; Pl.'s Mem. at2-3. Coggon complained of "sharp pains under the balls of her feet" and"toes [that] were sore and inflamed" and "painful to the touch." Pl.'sMem. at 3. Coggon testified that her "feet hurt" with a "sharp pain" whenshe walked and that her "toes were sore and inflamed" and her "feet hurtall the time." R. at 39-40.

(1) Dr. Massarotti's Diagnosis and Notes

Coggon reports having a history of rheumatoid arthritis since 1996.Id. at 19, 142. In March of 1997, Coggon was diagnosed with rheumatoidarthritis by Dr. Elaine Massarotti ("Massarotti"), a specialist with theItzhak Pearlman Family Arthritis Treatment Center at New England MedicalCenter. Pl.'sPage 6Mem. at 3. Pertinent portions of Massarotti's notes of Coggon's visitsand tests follow: June 11, 1999: "[Coggon] has had stable forefoot pain for the last two years with questionable erosive change on xrays and the rheumatoid factor has been positive, but is now negative. She occasionally notices pain in the joints of the upper extremities." R. at 186. November 19, 1999: "Coggon had a ligament injury to her left ankle recently. . . . Since then, she has placed more pressure on her right foot and may be having more joint pain. She had tapered off her medications inadvertently and found that she had more joint pain with it. She has little pain in the joints of the upper extremities and morning stiffness. . . . This rheumatoid variant has been moderately well-treated with sulfasalazine and Voltaren, which I suggested she continue for now. . . . I suggested a trial of methotrexate which she was not inclined to do at this point." Id. at 184 (letter to Dineli Gunawardene, M.D.). December 8, 1999: X-ray reports showed "[f]indings which may be consistent with rheumatoid arthritis." Id. at 193, 194 April 26, 2000: "Unfortunately, since her last visit, she has developed increasing hand pain, finger pain, and morning stiffness. She has been unable to open jars, and continue with her activities of daily living. She is quite tearful and depressed today. In February, her knees also began to hurt and her feet have become more and more painful. . . . Her rheumatoid arthritis has become much more active now. She has agreed to begin methotrexate." Id. at 185. June 9, 2000: "She continues to be very stiff and uncomfortable. Her hands and feet are very painful. She is having some difficulty with activities of daily living. For a period of a few days she had difficulty getting out of bed because of the pain and swelling which also seemed to affect her knees at that time. [Coggon] has seropositive/seronegative inflammatory rheumatoid arthritis. [S]he will continue with the methotrexate for now but I have asked her to begin prednisone." Id. at 182.

July 7, 2000: "Coggon . . . was treated with prednisone beginning a month ago. Five days after beginning [it], she noticed a decrease in morning stiffness and joint pain, and her spirits have also improved. . . . She had good range of motion in the neck, shoulders, and elbows. . . . The hips and knees moved well and the MTP squeeze was positive, butPage 7 better than on June 9th. She has begun to respond to treatment. She will decrease the prednisone . . . provided she is asymptomatic." Id. at 181.

September 13, 2000: "Coggon perhaps feels a little bit better. She was able to taper the prednisone . . . with some residual stiffness in the morning but it is unclear to determine how much pain she is having the rest of the day. She is finding activities of daily living difficult. . . . I think she is responding to methotrexate but I am not happy with her continued requirement of prednisone and continued synovitis." Id. at 180. November 17, 2000: "Coggon . . . returns . . . for evaluation and treatment of seropositive erosive rheumatoid arthritis. Though she is taking prednisone every other day she continues to be stiff and has pain in her feet and hands. . . . She continues to take Voltaren.2 . . . Unfortunately, her disability was denied. . . . I encouraged her to continue with prednisone . . . but she may want to discontinue it." Id. at 179

Massarotti wrote a "To Whom It May Concern" letter on Coggon's behalfin this matter dated May 12, 2001, nine months after Coggon's lastvisit, indicating that Coggon had been under Massarotti's care for thetreatment of arthritis for several years. See id. at 233; Pl.'s Mem. at8. Massarotti noted the progression of symptoms from her feet to herhands and wrists and concluded that she believed Coggon was "unable towork and medically disabled as a result of this illness." R. at 233.

Conversely, Dr. Jonas in his consultative examination indicatedthat:

There did seem to be some inconsistencies . . . For example, the complaint of foot pain is substantial, but the physicalPage 8 findings are frankly modest considering the record . . . not only that she is able to walk [with] apparently relatively normal shoes and without cane or crutch or anything, but also without a limp. Furthermore, . . . when she was frustrated in the hearing from time to time she had . . . a personal tendency to stamp [sic] her feet on the ground. I was surprised that she would do that, but she also didn't seem to react to that by feeling an increase of pain. At least she didn't give an outward expression of that. So I'm not sure that the complaint of pain is not substantially amplified in contrast with the actual objective condition.

Id. at 47-48.

After the hearing, Massarotti completed an Arthritis ResidualFunctional Capacity Questionnaire and opined that Coggon "would oftenhave symptoms that would interfere with attention and concentration andthat she was moderately limited in her ability to deal with work stress,though she felt it was `hard to say.'" Def.'s Mem. at 7; R. at 237-238.She also opined that Coggon could sit and stand continuously for tenminutes at one time, could sit for a total of two hours and stand/walkfor a total of two hours in an eight hour period, and would have to walkfor five minutes for every twenty minutes she spent working. R. at 239.She indicated that Coggon "need[s] a job which permits shifting positionsat will from sitting, standing or walking" and that Coggon would have totake unscheduled breaks during an eight hour period. Id. at 239-240(emphasis within original). Massarotti opined that Coggon could"frequently" carry less than ten pounds, "occasionally" lift ten totwentyPage 9pounds, and "never" carry fifty pounds. Id. at 240. She also opined thatCoggon "could use her hands, fingers and arms each for twenty-fivepercent of the time during an eight hour day and that she could bend/twistten percent of the time." Def.'s Mem. at 7; R. at 241. This questionnairewas completed on January 7, 2002, more than one year after Coggon's lastvisit to Massarotti on November 17, 2000. See R. at 179, 241.

(2) Dr. Stammen's Consultative Examination

A Consultative Examination Report was prepared by Karl F. Stammen,M.D. ("Stammen") upon the request of the Massachusetts RehabilitationCommission Disability Determination Services, on September 19, 2000. 19, 146-148. Stammen noted in his report that Coggon's gait was"essentially normal in spite of the history that she had painful feet andpainful joints in the area of the feet." Id. at 147. Stammen deemedCoggon's neurological examination and muscle strength normal. See id. Themusculoskeletal exam found "full range of motion without tenderness ofankles, knees and hips. [The] lumbosacral spine show[ed] no pain onmotion." Id. Stammen also found Coggon could "bend forward withoutlimitation" and that she had "full range of motion of the cervicalspine, shoulders and elbows, [and] full range of motion of the hands andwrists." Id. at 147-148. Stammen concluded that there were noinflammatory signs other than the "mild atrophy of the toes." Id. at148.Page 10

(3) Dr. Slayton's Consultative Examination Report

Dr. James M. Slayton, M.D. ("Slayton"), conducted an examination ofCoggon on September 16, 2000. Id. at 141-145. Slayton noted hisimpression that Coggon has "mood symptoms and clear anxiety symptoms" and"complicated personality traits." Id. at 145. Slayton notes that thoughshe would have "a difficult time" interacting with coworkers in a typicalwork environment, "[i]t is conceivable that she would do well in astructured vocational rehabilitation program that takes into account herarthritis and her clearly complicated personality traits." Id.

(4) Other assessments

Two Physical Residual Functional Capacity Assessments, conducted inOctober and December of 2000, found Coggon "had functional capacitiesconsistent with a limited range of light work with additional posturaland environmental restrictions." Def.'s Mem. at 5; see R. at 168-172,197-204.

(5) Testimony of Dr. Jonas at the Hearing Before the Hearing Officer

Dr. Jonas, the medical expert at the hearing, testified that Coggon'scomplaints of foot pain were not consistent with the modest physicalfindings on the record. R. at 47. "[Jonas] observed that when [Coggon]was frustrated during the hearingPage 11from time to time, she stamped [sic] her feet but did not react to thataction with any observed increase in pain." Def.'s Mem. at 5; R. at47-48. Jonas also observed that Coggon could walk, wore normal shoes, andwas not aided by a crane or crutch as one might expect given hercomplaints. See R. at 47. Jonas further indicated, when discussingCoggon's stomping her feet on the floor during the hearing, that he wasnot "sure that the complaint of pain is not substantially amplified incontrast with the actual objective condition. And this might alsoreference the personality issue, particularly with the dependency relatedfeatures." Id. at 48. Jonas testified that there is nothing in the recordor in Coggon's testimony to "suggest any impairment of ability to performactivities of daily living." Id. at 48 (testimony of Alfred G. Jonas,M.D.).

2. Depression and Anxiety Disorders

At the time of the November 2001 hearing, Coggon testified that she hadbeen seeing a therapist. Id. at 44-45. She indicated that she had seenthe same therapist years ago but stopped seeing her, and that when she"got this disease, [she] realized it was much harder dealing with [her]depression." Id. at 44. Coggon stated that she "had insurance so [she]got to go and see her again." Id. When the hearing officer asked if hertherapist discussed work with her, Coggon replied "[w]ell, she said don'tfeel guilty because you can't work." Id. at 45.Page 12

There is a reference in Massarotti's notes indicating "[a] new sleepingmedication has been prescribed by her psychiatrist, Dr. Cahill." Id. at180. The hearing officer indicated that "it's fair to say that theemotional issues here, her ability to cope with the physical conditionand emotional reaction to what she perceives is the physical condition isthe crucial element." Id. at 58.

Coggon saw James M. Slayton, M.D. ("Slayton"), a consultativeexaminer, and asserts his primary diagnosis was that she had "mixedpersonality disorder, including prominent borderline and dependentfeatures." Pl.'s Mem. at 3. This is a correct restatement of Slayton'sprimary Axis II diagnosis. R. at 144-145. Slayton also states that Coggon"note[d] urges to leave" those situations in which she is anxious orconfused "and typically, if she is able to do that, she gets reliefwithin 20 minutes." Id. at 141. Jonas stated that Slayton "clearly . . .states that he feels that the personality is the central issue." Id. at47. Jonas further testified that Coggon only had "moderate limitations inone category, her social functioning." Id. at 22.

a. Testimony of Vocational Expert

At Coggon's hearing, the vocational expert, Carl E. Barchi ("Barchi"),was asked by the hearing officer to consider a hypothetical claimant ofCoggon's age, education, and workPage 13experience, who could perform "at least sedentary work, some light work,"who "could lift ten pounds frequently, 20 pounds occasionally" and whowould need a job "where she's off her feet let's say four or five hoursand on her feet from time to time two to three hours" or "jobs that wouldallow her to sit down whenever she feels the need." Id. at 55-56. Barchiindicated that "[a]s far as unskilled sedentary jobs that she could dogiven the residual functional capacity would be a record clerk, cashieror assembler" or "receptionist." Id. at 56.

The hearing officer inquired as to Barchi's information that therewould be 2,548 sedentary receptionist positions. Id. The hearing officerindicated that "if she's going to have difficulty with the supervisorbecause she wants to sit down and the supervisor doesn't think she can orshe's going to have difficulty in staying on the job . . . [i]t canpresent difficulties." Id. at 57. Barchi agreed that there is "noreasonable accommodation allowing a person to sit down briefly." Id.Barchi also agreed with Coggon that "[i]f somebody has limitations usingboth hands on a regular basis, has difficulty gripping things, hasdifficulty closing jars and has limitations on picking things up usingboth hands" that it would "limit the number of jobs" he suggested. Id. at59.

3. Irritable Bowel SyndromePage 14

Coggon claims irritable bowel syndrome as part of her disability. 46. Slayton's notes in his Consultative Examination Report that Coggonindicates having "a history of irritable bowel syndrome, which she statesis diet-controlled." Id. at 14. In November of 1999, Massarotti pointedout that the claimant denied having diarrhea or abdominal pain. Id. at184. The hearing officer stated that the "record does not contain anyformal treatment notes for the claimant's alleged irritable bowelsyndrome." Id. at 20. This Court agrees with the hearing officer thatthere is insufficient support in the record to reflect such a medicaldiagnosis or to disturb his findings on this particular matter.


A. Standard of Review

Review of a Social Security disability benefit determination by thisCourt is limited by section 405(g) of the Social Security Act, whichprovides that "[t]he findings of the Commissioner of Social Security as toany fact, if supported by substantial evidence, shall be conclusive."42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390, 401(1971); Manso-Pizarro v. Sec'y of Health and Human Servs., 76 F.3d 15, 16(1st Cir. 1996). "Substantial evidence exists when a reasonable mind,reviewing the evidence in the record as a whole, could accept it asadequate to support the Commissioner's conclusion." Musto v.Page 15Halter, 135 F. Supp. 2d 220, 225 (D. Mass. 2001) (quoting IrlandaOrtiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.1991)) (internal quotation marks omitted). The Commissioner must makecredibility determinations and draw inferences from the record ofevidence. Musto, 135 F. Supp. at 225. This Court must therefore affirmthe Commissioner's decision "even if the record arguably could justify adifferent conclusion, so long as it is supported by substantialevidence." Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1,3 (1st Cir. 1987); see Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.1999). "[S]tatute and long established case law make clear that thecourt's function is a narrow one limited to determining whether there issubstantial evidence to support the Secretary's findings and whether thedecision conformed to statutory requirements." Geoffroy v. Sec'y ofHealth and Human Servs., 663 F.2d 315, 319 (1st. Cir. 1981). TheCommissioner properly asserts that "[a]bsent a factual or legal error,the court cannot remand a case for further proceedings." Def.'s Mem. at 7(citing Manso-Pizarro, 76 F.3d at 16).

B. Social Security Disability Standard and the Decision of theHearing Officer

The Social Security Act 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, consideringPage 16 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). Standing alone, "evidence of an impairment isnot enough to warrant an award of benefits; there must also be evidencein the record that the impairment prevented the claimant from engaging inany substantial activity." Durant v. Chater, 906 F. Supp. 706, 711(D. Mass. 1995); Guyton v. Apfel, 20 F. Supp. 2d 156, 161 (D. Mass.1998) (citing McDonald v. Sec'y of Health and Human Servs., 795 F.2d 1118,1120 (1st Cir. 1986)). The Social Security Administration has promulgatedregulations that have reduced this determination of disability to afive-step analysis. The hearing officer must, and did, follow thefive-step sequential evaluation process: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work.20 C.F.R. §§ 404.1520 and 416.920(a); R. at 23-24.

The First Circuit has provided instruction on the application of thefive-step process. See Goodermote v. Sec'y ofPage 17Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).3 At stepone, the Commissioner considers whether the claimant is currentlyemployed; if so, the claimant is automatically considered not to bedisabled and the process comes to an end. Id. at 6. If the claimant isnot currently employed, the Commissioner proceeds to step two andconsiders whether the claimant has a severe impairment. Id. A "severeimpairment" is defined as an impairment "which significantly limits hisor her physical or mental capacity to perform basic work-relatedfunctions." Id. If the Commissioner determines that the claimant does nothave a severe impairment the process comes to an end; otherwise, theCommissioner proceeds to step three. Id. At step three, the Commissionerdetermines whether the claimant has an "impairment equivalent to aspecific list of impairments contained in . . . Appendix 1" to the SocialSecurity Administration's regulations. Id. If so, the claimant isautomatically found to be disabled and the process ends. Id. If not, theCommissioner goes on to step four and asks whether the claimant'simpairment "prevent[s] him from performing work of the sort he has donein the past." Id. at 6-7. The burden at this stage is on the claimant.Id. at 7. If the answer is no, the claimant is found not to be disabledand the process ends. Id.Page 18If the answer is yes, the Commissioner continues to step five andconsiders whether the "claimant's impairment prevent[s] him fromperforming other work of the sort found in the economy." Id. The burden ofproof at step five is on the Commissioner. Id. If yes, the claimant isfound to be disabled; if not, the claimant is found not to be disabled.Id.

Despite Coggon's claim, the hearing officer properly applied the fivestep analysis in its decision, pursuant to 20 C.F.R. sections 404.1572and 416.972. R. at 19, 23-24. The hearing officer ruled that: (1) Coggonhad not engaged in substantial gainful activity, (2) her impairment orcombination of impairments were "severe" in nature, (3) her medicallydeterminable impairments did not meet or medically equal one of theimpairments listed in Appendix 1, Subpart P, Regulation No. 4, (4) theallegations made by Coggon regarding her limitations were not completelycredible, (5) Coggon was able to perform a range of work at the lightlevel of exertion, (6) Coggon was a younger individual between the agesof 45 and 49 and had more than a high school education, (7) Coggon had notransferable skills from any past relevant work and had the residualfunctional capacity to perform a range of light work . . . identified bythe vocational expert which includes work as a record clerk, cashier,assembler, and receptionist, and (8) Coggon was not under a "disability,"as defined in the SocialPage 19Security Act, at any time through the date of the hearing officer'sdecision. Id. at 23-24 (citations omitted). This Court rules that thehearing officer adequately considered "the medical opinions in the recordregarding the severity of the claimant's impairments." Id. at 24.Accordingly, the hearing officer properly decided that "the claimant isnot entitled to a period of disability, Disability Insurance Benefits,and not eligible for Supplemental Security Income payments." Id. at 25.

C. Coggon's Challenge to the Weight Given Massarotti's Opinionby the Hearing Officer

Coggon argues that the hearing officer's decision contains errors oflaw and was not supported by substantial evidence. Pl.'s Mem. at 5-6.Specifically, Coggon contends that the hearing officer (1) ignoredMassarotti's treating source evidence, (2) "mischaracterized[Massarotti's To Whom It May Concern letter] as an advocacy document,"and (3) "substituted his own views for uncontroverted medical opinion."Id. (quoting Nguyen, 172 F.3d at 35); R. at 22. Coggon argues that thehearing officer failed to give proper weight to the opinion of Coggon'streating physician by "disregard[ing] both treating source diagnoses andtreating source opinions as to functional restrictions." Pl.'s Mem. at5. Coggon argues that, as such, the hearing officer did not correctlyapply 20 C.F.R. sections 404.1527 and 416.927 and, therefore, "committedan error of law."Page 20Pl.'s Mem. at 5-6. Coggon asserts that the Social SecurityAdministration, vis-à-vis the regulations, "will give more weight,generally, `to opinions from . . . treating sources.'" Pl.'s Mem. at 6(citing 20 C.F.R. § 416.927 (d)(2) and Guyton, 20 F. Supp. 2d at 167)(emphasis added). Coggon argues that the hearing officer did not "givegood reasons" for the weight he gave to Massarotti's opinion. Pl.'s 8; 20 C.F.R. § 416.927 (d)(2).

Coggon acknowledges that opinions of treating physicians are"generally," but not always, given greater weight. See Pl.'s Mem. at 6.In Rivera v. Sec'y of Health & Human Servs., the First Circuit statedthat "[t]he [hearing officer] is not required automatically to givecontrolling weight to any `treating' doctor's report . . . In somecases, `controlling weight' may be assigned if the report meets thespecified qualifications, and is not inconsistent with other substantialevidence. . . ." 986 F.2d 1407, No. 92-1896, 1993 WL 40850 at *3 (1stCir. Feb. 19, 1993) (unpublished opinion); accord Shaw v. Sec'y of Healthand Human Servs., 25 F.3d 1037, No. 93-2173, 1994 WL 251000, at *3 (1stCir. June 9, 1994) ("[w]hen a treating doctor's opinion is inconsistentwith other substantial evidence in the record, the requirement of`controlling weight' does not apply.") (unpublished opinion);4Guyton, 20 F. Supp. 2d at 167.Page 21

This court stated in Guyton that the hearing officer is not "obligatedautomatically to accept [the treating physician's] conclusions."20 F. Supp. at 167.5 Further, "the [hearingPage 22officer] may reject a treating physician's opinion as controlling if itis inconsistent with other substantial evidence in the record, even ifthat evidence consists of reports from non-treating doctors." Castro v.Barnhart, 198 F. Supp. 2d 47, 54 (D. Mass. 2002) (Swartwood, J.);Rosario v. Apfel, 85 F. Supp. 2d 62, 67 (D. Mass. 2000) (Ponsor, J.)(citing 20 C.F.R. § 404.1527(d)(4)). Coggon herself states that"[Massarotti's] conclusions are entitled to controlling weight unless[contradicted] by substantial evidence in the record, or arePage 23unsupported." Pl.'s Mem. at 6 (emphasis added); See Arroyo v. Barnhart,295 F. Supp. 2d 214, 220-221 (D. Mass. 2003) (Neiman, M.J.). Onecannot say the record supported Massarotti's opinion; rather, the recordcontradicts Massarotti's opinion.

Coggon argues that a hearing officer should not reject a treatingsource opinion "[e]ven . . . if the opinion is not accorded controllingweight" because "[t]reating source medical opinions are still entitled todeference." Pl.'s Mem. at 6; 61 Fed. Reg. 34490, 34491. This deference,however, is not absolute. The language Coggon quotes reads, in full, that"[t]reating source medical opinions are still entitled to deference andmust be weighed using all of the factors provided in 20 C.F.R. 404.1527and 416.927," 61 Fed. Reg. 34490, 34491, and "[a] finding that a treatingsource's medical opinion is not entitled to controlling weight does notmean that the opinion is rejected. It may still be entitled to deferenceand be adopted by the adjudicator." Id. at 34490 (emphasis added).

The regulations list the factors a hearing officer will consider when atreating source opinion is not deemed "controlling," including (1) theexamining relationship, (2) the treatment relationship, including thelength, nature, and extent of treatment and the frequency ofexamination; (3) supportability of the opinion by evidence; (4)consistency with the record; (5) the specialization of the treatingsource, and (6) any otherPage 24factors which support or contradict the opinion. 20 C.F.R. § 416.927(d).Controlling weight is given if the hearing officer finds that the"treating source's opinion on the issue(s) of the nature and severity of[the claimant's] impairment(s) is well-supported by medically acceptableclinical and laboratory diagnostic techniques and is not inconsistentwith other substantial evidence." 20 C.F.R. § 404.1527(d)(2). Here, thehearing officer decided Massarotti's medical opinion was "unsupported byclinical evidence" and was an "advocacy" opinion. R. at 22 (citing20 C.F.R. § 404.1527(d)(3)).

Though the treating source, pursuant to the regulations, is "generally"given "more weight," this is not absolute. 20 C.F.R. § 416.927(d)(2),(5).It is true that Massarotti was a specialist and indeed treated Coggon onseveral occasions and had knowledge of her impairment and history.Coggon, however, ignores the fact that Massarotti's letter came sixmonths after her last visit with Massarotti and that her opinion inJanuary of 2002 came more than one year after her last visit toMassarotti. Def.'s Mem. at 9. Further, the lapse in treatment came aftervirtually monthly visits to Massarotti. Despite Massarotti's note that"arrangements were made for [Coggon] to see [her] in two months," thereis no record of Coggon in fact visiting her. R. at 179. The decrease infrequency of visits, one of the factors above,Page 25could properly be considered by the hearing officer. See20 C.F.R. § 416.927(d)(2).

It was not unreasonable for the hearing officer to find thatMassarotti's opinion was one of "advocacy". See 20 C.F.R. § 416.927(d)(3);R. at 22. Coggon argues that Massarotti's opinion was not advocacy innature. Yet, "the Questionnaire6 [completed by Massarotti] wascreated for use by social security disability attorneys and the opinionsstated therein would have rendered [Coggon] essentially bedridden, whichis not at all consistent with any of the other evidence of recordconcerning the severity [of] her condition." Def.'s Mem. at 15. This,together with Massarotti's May 2001 letter stating that Coggon was"disabled"7 and Massarotti's notes from Coggon's November 17, 2000,visit that read, "[u]nfortunately, her disability was denied," R. at 179(emphasis added), indicate a potential bias and predisposition onMassarotti's part to advocate on Coggon's behalf.Page 26

It was also reasonable to determine that Massarotti's opinion was voidof adequate supporting explanations. See 20 C.F.R. § 416.927(d)(3).Massarotti's recommendations and opinion were generally vague andunsubstantiated by the record. For instance, Massarotti indicated thatCoggon had difficulty dealing with work stress yet indicated that thedegree of this limitation was "[h]ard to say," R. at 238, indicatedCoggon would need unscheduled breaks in a work day though she could notposit how often, R. at 240, and surmised Coggon would "likely be absentfrom work as a result of the impairments or treatment . . . about once amonth" without any reasoning or support for such opinion. R. at 241.Further, the hearing officer based his decision, in large part, in accordwith 20 C.F.R. section 416.927(d)(4), on what he determined was themarked inconsistency of Massarotti's opinion with the other reports andexaminations on the record.

The hearing officer explained what he viewed as an inconsistency inMassarotti's opinion, namely that "[i]t is not plausible that theclaimant successfully lives alone, drives frequently . . . and could beconsidered bedridden." R. at 22. Coggon claims the hearing officer "neveradequately compared the opinions of Dr. Massarotti with those of theother physicians. `As a lay person . . . the [hearing officer] was simplynot qualified to interpret raw medical data in functional terms'." Pl.'sMem. at 9 (quoting Nguyen, 172 F.3d at 35). The hearingPage 27officer, however, did not base his determination on medical data, but onMassarotti's estimation that in an eight hour period Coggon could onlystand for two hours and sit for two hours. See R. at 239. This was notmedical data, but Massarotti's estimation of Coggon's functionalcapacity. The hearing officer deduced, given the limited amount of timeMassarotti indicated that Coggon could sit or stand, that she would be"mostly bedridden." R. at 22. It is ironic that Coggon argues, on the onehand, that the hearing officer did not consider or give weight toMassarotti's opinion and, at the same time, argues that an inferencebased on Massarotti's opinion is faulty. The hearing officer, notunreasonably, found Massarotti's opinion inconsistent with the objectivemedical evidence. The state physician's opinion further confirms theproblematic nature of Massarotti's estimation, indicating that in an eighthour period, Coggon could stand for at least two hours and sit for atleast six hours. R. at 169, 198. As per federal regulations, allnonexamining source opinions, such as those offered by the Statephysician on record, are to be "consider[ed]."20 C.F.R. § 404.1527(f)(2)(i).8 The hearing officer will "consider[the]Page 28findings of a State agency medical or psychological consultant [by]evaluat[ing] the findings using relevant factors [as it would a treatingsource opinion.]" Id. at § 404.1527 (f)(2)(ii). The Commissioner may alsoplace greater weight on the report of its medical expert. Keating v. Sec'yof Health and Human Servs., 848 F.2d 271, 275 n. 1 (1st Cir. 1988) ("Itis within the Secretary's [, namely the Secretary of Health and HumanServices in a determination of disability,] domain to give greater weightto the testimony and reports of medical experts who are commissioned bythe Secretary."); Lizotte v. Sec'y of Health and Human Servs.,654 F.2d 127, 130 (1st Cir. 1981).

Coggon also argues that the hearing officer ignored 20 C.F.R section416,927(d)(3) which provides that the "more a medical source presentsrelevant evidence to support an opinion, particularly medical signs andlaboratory findings, the more weight we will give that opinion." Pl.'sMem. at 8. Here, the hearing officer decided to give more weight to theopinions of the consultative examiner Stammen and the non-examining DDSphysicians because their opinions were, unlike Massarotti's opinion,"consistent with and supported by the record as a whole." R. at 22. Thehearing officer decided that "[t]he record as a whole indicates a higherlevel of functioning than that indicated by Dr. Massarotti's opinion,which is unsupportedPage 29by clinical evidence." Id. Though a hearing officer may give littleweight to a medical opinion, its decision "can still pass muster if theother reasons given to accord medical reports little weight areadequately supported." Arroyo, 295 F. Supp. 2d at 221 (citing Reddickv. Chater, 157 F.3d 715, 726 (9th Cir. 1998) and Gonzalez Perez v. Sec'yof Health and Human Servs., 812 F.2d 747, 749 (1st Cir. 1987)). Such wasthe case here.

Further, though Coggon argues that the hearing officer did not properly"evaluate the treatment notes nor the May 12, 2001 letter from Dr.Massarotti," Pl.'s Mem. at 9, a hearing officer need not "expressly referto each document in the record, pieceby-piece." Rodriguez-Torres v. Sec'yof Health and Human Servs., 915 F.2d 1557, 1990 WL 152336, at *1 (1stCir. September 11, 1990). A hearing officer "can consider all theevidence without directly addressing in his written decision every pieceof evidence submitted by a party." NLRB v. BeverlyEnterprises-Massachusetts, Inc., 174 F.3d 13, 26 (1st Cir. 1999).Although the hearing officer cannot derive his factual conclusions byignoring evidence, see Nguyen, 172 F.3d at 35, he is not required toaddress every piece of evidence in the record:

Courts have held that a[hearing officer]'s failure to address a specific piece or pieces of evidence did not undermine the validity of [his] conclusion, for example, when that conclusion was supported by citations to substantial medical evidence in the record and the unaddressed evidence was either cumulative of the evidence discussed by the [hearing officer] or otherwise failed to support the claimant's position.Page 30 Lord v. Apfel, 114 F. Supp. 2d 3, 13 (D.N.H. 2000) (citing Rodriguez-Torres, 915 F.2d 1557, 1990 WL 152336, at *1-4; Goodermote, 690 F.2d at 8; Ortiz v. Apfel, 55 F. Supp. 2d 96, 103 & n. 1 (D.P.R. 1999) (concluding that therapy notes made by psychiatrist, which were not discussed by the hearing officer, did not appreciably support claimant's claim)).

Coggon argues that deeming Massarotti's May 2001 letter of opinion an"advocacy opinion" is incorrect as matter of law.

[T]he mere fact that a medical report is provided at the request of counsel, or, more broadly, the purpose for which an opinion is provided, is not a legitimate basis for evaluating the reliability of the report. . . . [I]n the absence of other evidence to undermine the credibility of a medical report, the purpose for which the report was obtained does not provide a legitimate basis for rejecting it.Reddick, 157 F.3d at 726 (internal citations and quotations omitted).Coggon asserts that although it might be proper "to reject a doctor'sopinion letter [that] varied from his treatment notes and `was wordedambiguously in an apparent attempt to assist the claimant in obtainingsocial security benefits'" it was improper to reject Massarotti's opinionsimply because Coggon's attorney had solicited it. See Def.'s Mem. at 15& n. 3; Reddick, 157 F.3d at 726 (quoting Saelee v. Chater, 94 F.3d 520,522 (9th Cir. 1996)). In Gonzalez Perez, the First Circuit stated that inits "review of social security disability cases, it appears to be a quitecommon procedure to obtain furtherPage 31medical reports, after a claim is filed, in support of such a claim.Something more substantive than just the timing and impetus of medicalreports obtained after a claim is filed must support a[hearing officer]'sdecision to discredit them." 812 F.2d at 749; accord Arroyo,295 F. Supp. at 220. Coggon asserts that, as in Arroyo, "[i]t is . . .difficult . . . to understand how the opinions of the treatingphysician, whose long history with the claimant is demonstrated by therecord, is contradictory to that record." Pl.'s Mem. at 10 (quotingArroyo, 295 F. Supp. 2d at 222). Yet, the hearing officer did not"discredit" the opinion based on "timing and impetus." Cf. GonzalezPerez, 812 F.2d at 749. Here, the hearing officer found that "[t]herecord as a whole indicates a higher level of functioning than thatindicated by Dr. Massarotti's opinion." R. at 22.

The determination of disability is left to the hearing officer, and theopinion of an individual physician stating that a claimant is "disabled"is in no way binding. See 20 C.F.R. §§ 404.1527(e); 416.927(e); Arroyo v.Sec'y of Health & Human Servs., 932 F.2d 82, 89 (1st Cir. 1991)(indicating that a hearing officer does not have to accept a physician'sopinion of disability). Additionally, "Dr. Massarotti's opinion thatPlaintiff was disabled came six months after her last physicalexamination of [Coggon]," despite Massarotti's indication in thetreatment notes that arrangements were made for Coggon to see herPage 32in two months "and the opinions in [the] Arthritis Residual FunctionalCapacity Questionnaire came over a year after her last examination."Def.'s Mem. at 16; R. at 179. "Thus, she would not appear to have beenactively involved in [Coggon's] treatment at the time she made thesevarious opinions." Def.'s Mem. at 16.

Coggon also argues that the hearing officer failed to give due weightto the fact that Massarotti's opinions were within her specialty. Pl.'sMem. at 9; 20 C.F.R. § 416.927(d)(5). Further, Coggon refers toMassarotti's May 12, 2001, "To Whom It May Concern" letter in which shewrote, "I see numerous patients with rheumatic diseases and I believethis patient's disease is not in remission despite aggressive treatment.Over the next several months, we will attempt to modify her treatmentregimen further to alleviate her symptoms, but I believe she willcontinue to be disabled from her rheumatoid arthritis." R. at 233; Pl.'sMem. at 9. Coggon argues that "it was her clinical knowledge that camefrom treating this patient, and making numerous adjustments in thattreatment over the course of more than 5 years, that was the basis of thedoctor's opinion." Id. at 10. Though specialty is to be considered, onemust also consider the "examining or treating relationship, thesupportability of the opinion, the consistency of the opinion with therecord as a whole" and other factors. Def.'s Mem. at 16-17;20 C.F.R. §§ 404.1527(d), 416.927(d). The hearing officer reasonably gaveMassarotti'sPage 33opinions less weight due to the lack of "supportability,"20 C.F.R. § 404.1527(d)(3), and lack of "consistency."20 C.F.R. § 404.1527(d)(4); see R. at 22. Further still, the hearingofficer did not reject or ignore the opinion of Massarotti; he simplyfound it an advocacy opinion and deserving of less weight given theweight of the record to the contrary. See R. at 22.

D. Assessment of Coggon's Subjective Complaints of Hand Pain

The First Circuit has established that "complaints of pain need not beprecisely corroborated by objective findings, but they must be consistentwith medical findings." Dupuis v. Sec'y of Health & Human Servs.,869 F.2d 622, 623 (1st Cir. 1989) (citing Avery v. Sec'y of Health &Human Servs., 797 F.2d 19, 21 (1st Cir. 1986)). In evaluating aclaimant's subjective complaints of pain, Avery instructs the hearingofficer to consider six factors: (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 sideeffects of any pain medication; (4) Treatment, other than medication, for relief of pain; (5) Functional restrictions; and (6) The claimant's daily activities.Page 34

Avery, 797 F.2d at 29 (emphasis added). If a hearing officer determinesthat the claimant is not credible, this finding "must be supported bysubstantial evidence and the [hearing officer] must make specificfindings as to the relevant evidence he considered in determining todisbelieve the appellant." Da Rosa v. Sec'y of Health & Human Servs.,803 F.2d 24, 26 (1st Cir. 1986).

Coggon argues that the standard used to evaluate pain is clear in theFirst Circuit. Dupuis, 869 F.2d at 623 (asserting that "complaints ofpain . . . must be consistent with medical findings"); Avery, 797 F.2d at 21(stating that the pain "must be a clinically determinable medicalimpairment that can reasonably be expected to produce the painalleged"); see Pl.'s Mem. at 11. Coggon also asserts that the hearingofficer "mischaracteriz[ed the] pain in her hands as a `new' impairment."Pl.'s Mem. at 11. Coggon further argues that the record repeatedlyreflects her complaints of hand pain, citing complaints to Massarotti,Massarotti's May 2001 letter, Coggon's first disability application inJune of 2000, and the August 2000 pain questionnaire. Coggon argues thatthe hearing officer mistakenly failed to note that the ResidualFunctional Capacity Report of January 2002 was not the first time thiscomplaint of hand pain had been made. Pl.'s Mem. at 11.Page 35

It is true that complaints of pain "need not be precisely corroboratedby objective findings." Dupuis, 869 F.2d at 623. Nonetheless, suchcomplaints "need not be accepted to the extent they are inconsistent withthe available evidence." Mickles v. Shalala, 29 F.3d 918, 927 (4th Cir.1994). All of Coggon's allegations are mere complaints and are neithersupported by, nor consistent with, the medical findings or the record.Stammen and the DDS doctors found "the claimant's impairments were notsevere enough to be considered in any way disabling [and t]hey did notfind any credible evidence as to hand dexterity difficulties. Althoughthey were non-examining physicians, [their opinions] are givensignificant weight in determining the claimant's residual functioningcapacity because their opinion is consistent with and supported by therecord as a whole." R. at 22. "[T]he [hearing officer] may reject atreating physician's opinion as controlling if it is inconsistent withother substantial evidence in the record, even if that evidence consistsof reports from non-treating doctors." Castro, 198 F. Supp. 2d at 54;Rosario, 85 F. Supp. 2d at 67 (citing 20 C.F.R. § 404.1527(d)(2));Def.'s Mem. at 10.

The hearing officer based his assessment concerning Coggon's functionallimitations in part on his finding that Coggon was not fully credibleregarding the extent to which her impairments limited her ability towork. Coggon complained toPage 36Massarotti at times of having difficulty with daily activities, R. at180, 182, but Masserotti's treatment notes also indicated improvement.R. at 181. Coggon was able to perform daily functions9 such as"dressing and bathing, using the stove, putting dishes in the sink,laundry in the washer, if it is not heavy. . . . She is capable ofinteracting, going to the store to get items, and capable of cashing acheck or using an ATM machine." R. at 144. It is well established thatCoggon drove an automobile. R. at 32-33, 40-41. Massarotti herselfindicated that if she went to work, Coggon would only miss "about on[eday] a month" as a "result of the impairments or treatment." R. at 241.These activities are well-supported by substantial evidence in therecord.

Though it appears in the Arthritis Residual Functional CapacityQuestionnaire, there is no record of reduced grip strength, or testing,in Massarotti's treatment notes. R. at 22; Def.'s Mem. at 11 n. 1.Massarotti, however, indicated that Coggon could only use her hands andarms twenty-five percent of the time during a work day. R. at 241. Therecord is replete with findings that Coggon moved well, R. 147-148,includingPage 37Massarotti's own treatment notes, R. 182, 184-185. Accordingly, there isno record support for the claims of hand pain. The hearing officer foundthat Massarotti simply "summarized" and "noted" Coggon's history of "painin her hands." R. at 20. In support of his decision that the limited useof hands was "not clinically substantiated," R. at 22, the hearingofficer sufficiently considered the following: (1) the initial report atNew England Medical Center in November of 1999, R. at 20 ("[H]er . . .hands moved well"); (2) Stammen's report, R. at 19, 21-22 ("There wasfull range of motion of the cervical spine, shoulders, and elbows as wellas full range of motion of the hands and wrists. Digital dexterity wasnormal and the claimant could make a [full] fist without difficulty," and"Her independent physical exams by Dr. Stammen were unremarkable forlimitations of motion involving her . . . shoulders, elbows, hands, andwrists."); (3) the opinions of the non-examining state agencyconsultants, R. at 22 (noting "[t]hey did not find any credible evidenceas to hand dexterity difficulties"); (4) the absence of credible supportin Massarotti's opinion, R. at 21 ("Massarotti fails to explain how herpatient successfully lives alone, takes care of all chores, shopping,cooking, and cleaning, and has the bimanual dexterity to drive herautomobile."); and (5) the "preponderance of the evidence" on therecord, R. at 21 (noting there is "no substantial clinical evidence" ofhand pain). Given the evidence before him, the hearing officer couldPage 38have concluded, and did conclude, that the extent of Coggon's dailyactivities sufficiently undermined her claim of impaired hand use anddisability.

E. Errors allegedly made by the Hearing Officer

1. Opinion of the Hearing Officer

Courts have held that a decision of a hearing officer is sufficientwhen the conclusion is supported by citations to substantial medicalevidence in the record and the unaddressed evidence is either cumulativeof the evidence discussed or otherwise fails to support the claimant'sposition. Lord, 114 F. Supp. 2d at 13 (citing Rodriguez-Torres,915 F.2d 1557, 1990 WL 152336, at *1-4 and Goodermote, 690 F.2d at 8).

Coggon asserts that she was not given "good reasons" by the hearingofficer for the lesser weight given Massarotti's opinion. Pl.'s Mem. at8; 20 C.F.R. § 416.927 (d)(2). In fact, the hearing officer did indicatehis reasons for giving lesser weight to Massarotti's medical opinion,namely, that it was "unsupported by clinical evidence" and was an"advocacy" opinion. R. at 22 (citing 20 C.F.R. § 404.1527(d)(3)).

In Agresti v. Sec'y of Health and Human Servs., this Court reversed adecision of a hearing officer on the ground he had provided insufficientsupport in his opinion. 631 F. Supp. 1245, 1249-51 (D. Mass. 1986).That case, however, was egregious inPage 39nature and is entirely distinguishable from this matter.10 This Courtruled in Agresti that there was insufficient support in the record forthe hearing officer to adequately rely on the opinion of a physician whowas familiar to the hearing officer, and that the hearing officer had "anobligation both to claimants and to reviewing courts to make full anddetailed findings and to articulate reasons in support of his ultimateconclusion." 631 F. Supp. at 1249; see e.g., Small v. Califano,565 F.2d 797, 801 (1st Cir. 1977). In Agresti, this Court held it was "anabuse of discretion [for the hearing officer] to ignore Agresti's wholerecord to rely instead on a familiar and proven non-examiner." Agresti,631 F. Supp. at 1249. This Court held that the hearing officer in thatcase decided "on the basis of the hearing record as a whole" and gave "noindication that this statement is not rote at best and pure invention atworst." Id. at 1250. As such, this Court asserted that the hearingofficer had "abdicated his responsibilities," concluding "his practices[were] arbitrary and capricious" and that "his actions constitute[d] anabuse of discretion." Id. at 1250-51.Page 40

"Failure to provide an adequate basis for the reviewing court todetermine whether the administrative decision is based on substantialevidence requires a remand . . . for further explanation." Crosby v.Heckler, 638 F. Supp. 383, 385-86 (D. Mass. 1985) (Zobel, J.); seeSmall, 565 F.2d at 801. This Court held the hearing officer in Agresticommitted, "clear error of law when he `deemed it unnecessary . . . tosummarize in detail the remainder of the medical record'."631 F. Supp. at 1250 (quoting Small, 565 F.2d at 801). Further still,the hearing officer "fail[ed] to mention a single medical report or toname a solitary treating and examining physician" in his decision. Id."In the discharge of his duties, the [hearing officer] is to weigh theevidence, resolve the material conflicts in the testimony, and determinethe case accordingly." Id. This Court ruled that the decision of thehearing officer in Agresti was "wholly conclusory" and did not "cite tothe record, name a treating physician, or refer to specific facts" and"fail[ed] utterly to evaluate or even to acknowledge a single one of themany medical reports from examining and treating physicians." Id.

None of this can be said of the decision of the hearing officer in thismatter. Here, the hearing officer reviewed and weighed evidence,including the reports of the treating and examining physicians, andreviewed facts. He cites Drs.Page 41Massarotti, Stammen, Slayton, and Jonas in his decision. He found, notunreasonably, that "[t]he record as a whole indicates a higher level offunctioning than that indicated by Dr. Massarotti's opinion, which isunsupported by clinical evidence" and that less weight would be given toMassarotti's opinion because it was "advocacy" in nature. R. at 22. Thehearing officer sequentially applied the applicable regulations anddetermined that Coggon's impairments, while severe, did not rise to thelevel of "disability" as defined in the Social Security Act. There is noerror.

2. Emotional Condition

Coggon argues that both Massarotti and Jonas indicated that her"emotional condition impacted her perception of pain." Pl.'s Mem. at 12.Coggon testified that her "pain primarily related to walking on herfeet." R. at 22. Coggon argues that while Jonas observed that she showedno outward reaction to her stomping her feet at the hearing, he believed"this might also reference the personality issue, particularly with thedependence related features." R. at 48; Pl.'s Mem. at 12. Coggon arguesthat Jonas said that this "might also reference the personality issue"but ignores the intermediate sentence which reads, "I'm not sure that thecomplaint of pain is not substantially amplified in contrast with theactual objective condition." R. at 48 (emphasis added). Further, Jonasfound that she only had "moderate limitations inPage 42one category, her social functioning." R. at 22. Dr. Jonas testifiedthat: There did seem to be some inconsistencies here. For example, the complaint of foot pain is substantial, but the physical findings are frankly modest considering the record, and to extend then on to some experience with Ms. Coggon in the hearing today, I noted, as was noted in the record, not only that she is able to walk, is [sic] apparently relatively normal shoes and without cane or crutch or anything, but also without a limp. [S]he had . . . a personal tendency to stamp her feet on the ground . . . I was surprised that she would do that, but she also didn't seem to react to that by feeling an increase of pain.R. at 47-48.

Coggon argues that the hearing officer "only considered half theevidence and missed the context." Pl.'s Mem. at 12. In support of thisassertion, Coggon makes reference to Jonas's testimony at the disabilityhearing wherein the hearing officer pointed out a "key" element ofSlayton's report, R. at 50, and Jonas replied, "[y]ou actually only readthe second half of the sentence. And we're missing a very important pieceof context." R. at 50-51. Yet, Coggon again takes the statement out ofcontext and ignores the hearing officer's initial acknowledgment of thepotential problem of reading only a portion of the report when the hearingofficer posed the question to Jonas at the hearing. The hearing officerstated "[i]n Dr. Slayton's report, which you have to read it all, I thinkit's about five pages, to get the full picture, and I don't want to justextract things, but to analyze it there is no other way to do it. A keysentencePage 43is near the end." R. at 50 (emphasis added). Coggon, ignoring the hearingofficer's own acknowledgment, improperly deems the analysis faulty andoutcome determinative.

3. Factual Errors

Coggon argues that the hearing officer incorrectly indicated that shelived in a third-floor rather than a first-floor apartment, that sheregularly works out in a gym, and that she attends sports events inWorcester, Pl.'s Mem. at 12; R. 22, 32, 132, or more accurately "drivesfrequently from Hull to Worcester." R. at 22. This Court, in Musto, heldthat "minor discrepancies between the facts as characterized by the[hearing officer] and the facts as reflected in the record [does] notjustify a finding that the credibility determination of the [hearingofficer] was not supported by substantial evidence."135 F. Supp. 2d at 229 (citations omitted); see Hauk v. Chater,894 F. Supp. 407, 412 (D. Kan. 1995) (holding that substantialevidence existed to support the decision by the hearing officer despitehis potentially inaccurate credibility findings); Gilson v. Apfel, 66Soc. Sec. Rep. Service 104 (N.D.Cal. Feb. 2, 2000) ("Plaintiff may . . .be correct to assert that the [hearing officer]'s opinion included someminor misstatements. However, even considering these errors, it is clearthat the [hearing officer]'s decision was supported by substantialevidence."). In this matter, akin to Musto, "[a]s a whole, the record inthisPage 44case supports the determination of the [hearing officer] that [Coggon]leads a fairly active life, and [the hearing officer's] findings to thateffect ought not be disturbed."11 135 F. Supp. 2d at 229.

The Third Circuit, as a parallel, has stated: It is important to recognize that our requirement in this regard is not designed in any way to derogate from the [hearing officer]'s responsibility under the statute to make the relevant findings of fact and "decisions as to the rights of any individual applying for" benefits. 42 U.S.C. [§] 405(b) (1976). We are also cognizant that when the medical testimony or conclusions are conflicting, the [hearing officer] is not only entitled but required to choose between them. We cannot expect that this choice by the [hearing officer], in the exercise of his or her statutory responsibility, will be accompanied by a medical or scientific analysis which would be far beyond the capability of a non-scientist.

We interpret our prior language and holding in light of our statutory function of judicial review. In this regard we need from the [hearing officer] not only an expression of the evidence s/he considered which supports the result, but also some indication of the evidence which was rejected. In the absence of such an indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored.Page 45 Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). This Court holds that here the hearing officer sufficiently reviewed the record and Massarotti's opinion. Coggon has not demonstrated the requisite substantial inconsistent evidence to reverse or remand the decision of the hearing officer. The hearing officer indicated that "[a]ll of the medical opinions in the record regarding the severity of the claimant's impairments have been taken into account." R. at 24. Though his decision could benefit from a greater articulation of the specific reasons for affording Massarotti's opinion lesser weight, is nonetheless supported by the record. The Court holds that the hearing officer, in determining Coggon's residual functional capacity, properly relied on the functional assessments of the nonexamining physicians and did appropriately consider Massarotti's opinion.

4. Hypothetical Question to the Vocational Expert

Coggon argues that the hearing officer erred in his hypotheticalquestion to the vocational expert because he never presented the evidenceof hand pain to the vocational expert.

In order to rely on a vocational expert's testimony, a hearing officermust base her hypothetical on a substantially supported assessment of theclaimant's functional limitations. See Rose v. Shalala, 34 F.3d 13, 19(1st Cir. 1994). In Arocho v. Sec'y of Health & Human Servs., the FirstCircuit decided thatPage 46a vocational expert's responses are relevant only in response tohypotheticals that correspond to the medical record. 670 F.2d 374, 375(1st Cir. 1982). "To guarantee that correspondence, the [hearing officer]must both clarify the outputs (deciding what testimony will be creditedand resolving ambiguities), and accurately transmit the clarified outputto the expert in the form of assumptions." Id.; see Flagg v. Barnhart,2004 WL 2677208, slip op. (D. Me. Nov. 24, 2004). Simply because Coggoncomplains of hand pain does not mean the record adequately reflects herclaims, that her claims are credible, or that there is substantialevidence to support her claims. Here, the hearing officer could well haveheard Coggon's complaints to Massarotti, together with all of thetestimony of the non-examining sources who do not reflect any handproblems, weighed it, and determined there was insufficient support topresent it to the vocational expert.

The vocational expert was, in fact, posed a hypothetical involving theeffect of "limitations using both hands on a regular basis . . .difficulty gripping things . . . difficulty closing jars and . . .limitations on picking things up using both hands" and though he statedthat such a situation would "limit the number of jobs" he recommended,R. at 59, the vocational expert did not state that such an impairmentwould prevent the hypothetical person from engaging in substantial,Page 47gainful activity. "Evidence of an impairment is not in itself enough towarrant an award of benefits; a claimant must also demonstrate that theimpairment prevents him from engaging in any substantial gainfulactivity." Guyton, 20 F. Supp. 2d at 161 (citing McDonald,795 F.2d at 1120). Coggon has failed to make such a demonstration. Allthings considered, the hearing officer's exclusion of hand pain from hishypothetical question to the vocational expert is reasonable and not inerror.

F. Attorney's Fees

The Commissioner reserved the right to oppose any award of attorney'sfees to Coggon pursuant to the Equal Access to Justice Act. See28 U.S.C. § 2412(d)(1)(A) (providing that a "court shall award to aprevailing party . . . fees and other expenses . . . including proceedingsfor judicial review of agency action, brought by or against the UnitedStates . . . unless the court finds that the position of the UnitedStates was substantially justified or that special circumstances make anaward unjust."); Wells v. Barnhart, 267 F. Supp. 2d 138, 149 (D.Mass. 2003). As Coggon does not prevail here, this issue is moot.Page 48


This Court "must uphold the Secretary's findings in this case if areasonable mind, reviewing the entire record as a whole, could accept itas adequate to support the Secretary's conclusions." Agresti,631 F. Supp. at 1248 (citing Rodriguez v. Sec'y of Health and HumanServs., 647 F.2d 218, 222 (1st Cir. 1981)). This Court rules that areasonable mind could accept the entire record as adequate to support theSecretary's conclusions. This Court also holds that the hearing officer'sdecision was supported by substantial evidence and free from errors oflaw. Geoffroy, 663 F.2d at 319. Accordingly, Coggon's Motion to Reverseor Remand the Decision of the Commissioner of the Social SecurityAdministration [Doc. No. 5] is DENIED, and the Commissioner's Motion forOrder Affirming the Decision of the Commissioner [Doc. No. 11] isALLOWED.

The request for attorney's fees is DENIED.


1. An "oophorectomy," or "ovariectomy," is the "surgical removal of anovary." Merriam-Webster's Medical Desk Dictionary 561, 573 (1996).

2. Voltaren is a drug used for the treatment of mild to moderaterheumatoid arthritis.

3. Though this case involved SSI, the process would be the same forSocial Security Disability Insurance ("SSDI") payments. See, e.g.,Bazile v. Apfel, 113 F. Supp. 2d 181, 185 (D. Mass. 2000).

4. Citation to unpublished opinions has been an issue of considerabledebate, which continues until today. The Eighth and Ninth Circuits are onextreme ends of the debate. Anastasoff v. United States, 223 F.3d 898,899-905 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000)(en banc) (holding that unpublished opinions have precedential effect);Hart v. Massanari, 266 F.3d 1155, 1163 (9th Cir. 2001) (upholding itslocal rule prohibiting the citation of unpublished decisions asconstitutional); see also Alshrafi v. American Airlines, Inc.,321 F. Supp. 2d 150, 160 n. 9 (D. Mass. 2004) (reviewing the holdingsin Anastasoff and Hart). For a more complete reflection of this debate, see Stephen R. Barnett,In Support of Proposed Federal Rule of Appellate Procedure 32.1: A Replyto Judge Alex Kozinski, Fed. Law., November/December 2004, at 32; AnneCoyle, Note, A Modest Reform: The New Rule 32.1 Permitting Citation toUnpublished Opinions in the Federal Courts of Appeals, 72 Ford. L. Rev.2471 (2004); A Lawrence J. Fox, Note, Those Unpublished Opinions: AnAppropriate Expedience or an Abdication of Responsibility?, 32 Hofstra L.Rev. 1215 (2004); Hon. Alex Kozinski, Letter, Fed. Law., June 2004, at37; Gary Young, Cite, Publish or Perish?, Nat'l L.J., May 3, 2004, atS1. This Court considers the reasoning of Anastasoff especially compellingand thus treats the holdings of unpublished opinions of the First Circuit"with great care and respect," even though the Court of Appeals itselfdoes not accord these opinions precedential weight. Alshrafi,321 F. Supp. 2d at 160 n. 9; Giese v. Pierce Chem. Co.,43 F. Supp. 2d 98, 103 n. 1 (D. Mass. 1999) (relying on unpublishedopinions' persuasive authority).

5. This Court, in Guyton, 20 F. Supp. 2d at 167 n. 14, offered anextensive review of the "treating physician rule": The "treating physician rule" has been the subject of much debate and confusion among the circuits. See, e.g., Schneider, Rachel, A Role for the Courts: Treating Physical Evidence in Social Security Disability Determinations, 3 U.Chi. Law Sch. Roundtable 391 (1996) (discussing different standards articulated by the circuits and the effect of the Social Security Administration's 1991 regulations). Through the creation of new regulations in 1991, the Social Security Administration attempted to create a uniform standard concerning the scope of the treating physician rule. See Standards for Consultative Examinations and Existing Medical Evidence, 56 Fed. Reg. 36,932, 36,935-37 (1991) (discussing the treating source regulation). The First Circuit's articulation of the standard in Rivera and Shaw appears correctly to describe the analysis for determining what weight to assign to a treating source's opinion in light of the 1991 changes. These opinions are also in accord with the treating physician standard as defined in the Second Circuit following its decade-long debate over the proper standard and the authority of the Social Security Administration. See, e.g., Schaal v. Apfel, 134 F.3d 496, 503-04 (2d Cir. 1998); Schisler v. Sullivan, 3 F.3d 563, 568-69 (2d Cir. 1993). Despite the 1991 regulations, however, district courts in the First Circuit have, on occasion, misstated the correct standard for evaluating the conclusions of a treating physician. See, e.g., Follensbee v. Sec'y of Health and Human Servs., CIV. 94-177-JD, 1995 WL 136935 at *6 (D.N.H. Mar. 28, 1995) (unreported decision) (reasoning that "[t]he First Circuit has made it clear that the [hearing officer] is [not] required to . . . give greater weight to conclusions advanced by treating sources" based upon case law that pre-dates the 1991 regulations); Weiler v. Shalala, 922 F. Supp. 689, 698 (D. Mass. 1996) (stating that a treating physician's opinion will always be given greater weight "even if the treating source's opinion is inconsistent with other substantial evidence of record."). While the ultimate result in both of these cases appears to be correct, the courts' analyses of the treating physician standard was not.

6. The Questionnaire appears in section 231.4 of Social SecurityDisability Practice, a guide for lawyers who represent social securityclaimants. Def.'s Mem. at 15 n. 3. It is unclear on the record, and of noreal consequence to this Court's decision, whether Coggon's attorney infact asked Massarotti to complete the questionnaire.

7. The First Circuit in Arroyo v. Sec'y of Health and Human Servs.,indicated that a hearing officer is "not required to accept theconclusions of claimant's treating physicians on the ultimate issue ofdisability." 932 F.2d 82, 89 (1st Cir. 1991); see20 C.F.R. § 416.1527(e)(1).

8. 20 C.F.R. section 404.1527(f)(2)(i) states, in part, that: State agency medical and psychological consultants are highly qualified physicians and psychologists who are also experts in Social Security disability evaluation. Therefore, [hearing officers] must consider findings of State agency medical and psychological consultants or other program physicians or psychologists as opinion evidence, except for the ultimate determination about whether [Coggon is] disabled.

9. "Activities of daily living include adaptive activities such ascleaning, shopping, cooking, taking public transportation, paying bills,maintaining a residence, caring appropriately for your grooming andhygiene, using telephones and directories, and using a post office." 20C.F.R. Part 404, Subpart P. App. 1, § 12.00(C)(1).

10. This Court in Agresti stated, "[a]lthough remand seemsappropriate, the Secretary has asked the Court to choose between affirmingor reversing. Accordingly, given this choice, the Court unhesitatinglyreverses the decision of the Secretary. This is not to say, however, thatthe Court could not reverse on other grounds. In fact, the substantialweight of the evidence dictates a reversal in any case." Agresti,631 F. Supp. at 1251.

11. "This Court does not intend to underrate the importance of correctfact-finding by the [hearing officer]. . . ." Musto,135 F. Supp. 2d at 229 n. 5 (citations omitted). As this Courtexplained in Musto: In Forness, the Second Circuit described the `grave importance of fact-finding': The correct finding, as near as may be, of the facts of a law suit is fully as important as the application of the correct legal rules to the facts as found. An impeccably `right' legal rule applied to the `wrong' facts yields a decision which is as faulty as one which results from the application of the `wrong' legal rule to the `right' facts.Id. at 229 n. 5(citing United States v. Forness, 125 F.2d 928, 942 (2dCir. 1942)).Page 1

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