KATHERINE A. ROBERTSON, Magistrate Judge.
Darlene Maria Lopardo ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1383(c)(3) challenging the final decision of the Acting Commissioner of Social Security ("Commissioner") denying her application for Social Security Disability Insurance Benefits ("DIB"). Plaintiff applied for DIB on November 6, 2014, alleging a September 1, 2014 onset of disability, due to problems stemming from the following impairments: depression; anxiety; heel spur syndrome; coccyx pain; and plantar fasciitis (A.R. at 185, 202, 206).
Plaintiff appeals the Commissioner's denial of her claim on the ground that the decision is not supported by "substantial evidence" under 42 U.S.C. § 405(g). Pending before this court are Plaintiff's motion for judgment on the pleadings requesting that the Commissioner's decision be reversed or remanded for further proceedings (Dkt. No. 12), and the Commissioner's motion for an order affirming the decision of the ALJ (Dkt. No. 14). The parties have consented to this court's jurisdiction (Dkt. No. 20). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the reasons stated below, the court will grant the Commissioner's motion for an order affirming the decision and deny Plaintiff's motion.
In order to qualify for DIB, a claimant must demonstrate that she is disabled within the meaning of the Social Security Act.
42 U.S.C. § 423(d)(2)(A). The Commissioner evaluates a claimant's impairment under a five-step sequential evaluation process set forth in the regulations promulgated by the Social Security Administration ("SSA"). See 20 C.F.R. § 404.1520(a)(4)(i)-(v). The hearing officer must determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant suffers from a severe impairment; (3) whether the impairment meets or equals a listed impairment contained in Appendix 1 to the regulations; (4) whether the impairment prevents the claimant from performing previous relevant work; and (5) whether the impairment prevents the claimant from dong any work considering the claimant's age, education, and work experience. See id; see also Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982) (describing the five-step process). If the hearing officer determines at any step of the evaluation that the claimant is or is not disabled, the analysis does not continue to the next step. 20 C.F.R. § 404.1520(a)(4).
Before proceeding to steps four and five, the Commissioner must make an assessment of the claimant's Residual Functional Capacity ("RFC"), which the Commissioner uses at step four to determine whether the claimant can do past relevant work and at step five to determine if the claimant can adjust to other work. See id.
Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2 (July 2, 1996).
The claimant has the burden of proof through step four of the analysis, including the burden to demonstrate RFC. Flaherty v. Astrue, Civil Action No. 11-11156-TSH, 2013 WL 4784419, at *8-9 (D. Mass. Sept. 5, 2013) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). At step five, the Commissioner has the burden of showing the existence of jobs in the national economy that the claimant can perform notwithstanding his or her restrictions and limitations. Goodermote, 690 F.2d at 7.
The district court may enter a judgment affirming, modifying, or reversing the final decision of the Commissioner, with or without remanding for rehearing. See 42 U.S.C. § 405(g). Judicial review "is limited to determining whether the ALJ used the proper legal standards and found facts upon the proper quantum of evidence." Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The court reviews questions of law de novo, but "the ALJ's findings shall be conclusive if they are supported by substantial evidence, and must be upheld `if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion,' even if the record could also justify a different conclusion." Applebee v. Berryhill, 744 F. App'x 6, 6 (1st Cir. 2018) (quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222-23 (1st Cir. 1981) (citations omitted). "Substantial-evidence review is more deferential than it might sound to the lay ear: though certainly `more than a scintilla' of evidence is required to meet the benchmark, a preponderance of evidence is not." Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (quoting Bath Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st Cir. 2003)). In applying the substantial evidence standard, the court must be mindful that it is the province of the ALJ, and not the courts, to determine issues of credibility, resolve conflicts in the evidence, and draw conclusions from such evidence. See Applebee, 744 F. App'x. at 6. That said, the ALJ may not ignore evidence, misapply the law, or judge matters entrusted to experts. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
Plaintiff alleges that the ALJ erred by: (1) omitting depression and anxiety as a severe impairment at step two of the sequential evaluation process; (2) limiting his consideration of medical evidence and failing to assign weight to medical consultants' opinions; and (3) failing to include restrictions on Plaintiff's ability to stoop, bend, and balance in the RFC notwithstanding his inclusion of those restrictions in the hypothetical that he posed to the Vocational Expert (VE) at the hearing. Accordingly, the background information will be limited to facts relevant to those issues and additional pertinent facts will be discussed in the analysis.
At the time of the hearing before the ALJ in August 2016, Plaintiff was 49 years old and lived with her mother (id. at 39, 51). Plaintiff graduated from high school and from college with an associate degree in office procedure (id. at 39, 207). Plaintiff had worked as a cashier and a sales associate in retail stores (id. at 207). She was employed as a food service worker in an assisted living facility for seven and one-half years from November 2006 to February 2014 (id. at 39-40, 207, 497). She testified that she was laid off due to a management change and her complaints about chronic pain (id. at 40). During the first two years of her employment at the assisted living facility, she worked full-time but decreased her hours to part time thereafter because of her medical conditions (id. at 40, 269).
Leon Hutt, Ph.D. conducted a consultative examination of Plaintiff on April 30, 2013 (id. at 269). At the time of Dr. Hutt's examination, Plaintiff was working part-time as a wait staff member (id.). Her chronic lower back pain prevented her from working full-time (id. at 271-72).
Plaintiff reported being depressed due to her physical limitations and family members' deaths and illnesses (id. at 270). She described herself as being a "worrywart" from the time she was a child (id. at 270-71). She stated that she had trouble sleeping and frequently felt tired even after she got a good night's sleep (id. at 270).
Plaintiff told the doctor that she had been a runner but had stopped running two years before when the pain in her coccyx increased (id.). She went to the movies, the theater, or a restaurant with a friend or family members about once a week (id.). She sometimes went to a casino with a group of people (id.). She had a learner's permit to drive, which she renewed every two years, but had not gotten a driver's license for twenty or twenty-five years because she was "fearful" (id.).
The Mental Status Examination revealed that Plaintiff's speech was "generally clear, relevant, and coherent" (id.). Her attentional capacity was "fair" (id. at 271). According to Dr. Hutt, Plaintiff functioned in the low average range of adult intellectual functioning (id.). Her affect was "appropriate" and her mood was "mildly anxious" (id.). "[W]ith the exception of difficulty sleeping, and possibly feeling tired, [Plaintiff] did not seem to have symptoms of depression" (id.). Dr. Hutt diagnosed: generalized anxiety disorder; adjustment disorder with depressed mood; and rule out ADD (id.). He assigned a Global Assessment of Functioning (GAF) score of 70 (id.).
Willard Brown, D.O. of the University of Massachusetts Medical Center (UMMC) Disability Evaluation Services examined Plaintiff on November 5, 2014 (id. at 490). The examination of her lumbar spine revealed scoliosis with a curvature to the left (id. at 492). Although she experienced some pain, she was able to perform a normal flexion and extension, right and left rotation, and right and left lateral flexion (id.). Her left foot and ankle were "essentially normal" and could bear weight (id.). However, her right heel was extremely tender to palpation (id.). Her inability to bear weight on her right foot caused her to limp (id. at 491, 492). Dr. Brown diagnosed "probable plantar fasciitis right foot now acute, left foot in remission" (id. at 493).
On December 4, 2014, Victor J. Carbone, Ph.D. of the UMMC Disability Evaluation Services examined and evaluated Plaintiff (id. at 496). Plaintiff reported that "she tries to exercise a couple times per week, . . . mostly she just does domestic chores around the house . . . and tries to sleep when she is not doing that" (id. at 497). She reported that her pain is a "major problem" (id.). Dr. Carbone assessed a GAF score of 55 (id. at 498).
On January 6, 2015, Ginette Langer, Ph.D. conducted a Psychiatric Review Technique (PRT) assessment based on a review of Plaintiff's records (id. at 80-83, 86). Dr. Langer noted that Plaintiff had "some depression and anxiety but mostly her pain is interfering with her working" (id. at 86). Dr. Langer opined that Plaintiff had mild restrictions of daily living activities, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace (id.). Plaintiff had not experienced any repeated episodes of decompensation of extended duration (id.). Dr. Langer's mental RFC assessment indicated that Plaintiff had moderate limitations in her ability to carry out detailed instructions, maintain attention and concentration for extended periods, "complete a normal workday and workweek without interruptions from psychologically based symptoms and . . . perform at a consistent pace without an unreasonable number and length of rest periods" (id. at 90). According to Dr. Langer, Plaintiff would be able "to concentrate, sustain attention and keep pace on simple tasks for 2 [hour] spans for 8/5/40" (id. at 86, 90).
John Benanti, MD., a nonexamining medical consultant, evaluated Plaintiff's physical RFC on January 20, 2015 (id. at 87-89). He noted that "imaging studies of [Plaintiff's] feet have been negative save for [a] calcaneal spur on her left foot" (id. at 89). Based on his review of Plaintiff's medical records, Dr. Benanti found that, although Plaintiff suffered from "chronic right foot pain" and coccygeal discomfort, she retained the RFC to: (1) lift 20 pounds occasionally and 10 pounds frequently; (2) stand and/or walk and sit, with normal breaks, for about six hours in an eight-hour work day; (3) stoop frequently; and (4) occasionally climb ramps and stairs, balance, kneel, crouch, crawl, and push and pull with her right lower extremities (id. at 87-88). However, she could never climb ladders, ropes, and scaffolds, and had to avoid heights and work with heavy machinery (id. at 88-89). Dr. Benanti stated that Plaintiff should be able to change her position for five minutes every hour to relieve discomfort (id. at 88).
The examiners determined that Plaintiff could perform her past job as a food service worker and, thus, was not disabled (id. at 91-92).
On April 21, 2015, Joseph A. Whitehorn, Ph.D. reviewed Plaintiff's treatment records for the purpose of conducting PRT and mental RFC assessments (id. at 102-03). His findings mirrored Dr. Langer's earlier findings (id. at 96-100, 102-03, 107-08). Dr. Whitehorn noted that Plaintiff's function report (form 3373), which she completed in March 2015, described her ability to participate in "a pretty full array of daily activities, limited almost entirely by perceived medical problems and pain, not by [psychological medical evidence of record]" (id. at 103, 232-39).
Eric Purins, M.D. reevaluated Plaintiff's physical RFC on May 6, 2015 (id. at 104-06). Dr. Purins generally agreed with Dr. Benanti's earlier RFC assessment (id. at 104-05). Dr. Purins stated that the February 2015 records of Plaintiff's podiatrist indicated that "with treatment, [Plaintiff's] foot pain does not objectively limit [her standing and walking] capacity" (id. at 105). Like Dr. Benanti, Dr. Purins indicated that Plaintiff would need to change position for five minutes each hour to relieve her back/tailbone pain (id.).
Because Dr. Whitehorn and Dr. Purins agreed with the other state agency consultants' assessment that Plaintiff could perform her past job as a food service worker, they opined that she was not disabled (id. at 109).
Plaintiff and independent VE Tamara Prairie testified at the hearing before the ALJ on August 5, 2016 (id. at 35). Plaintiff testified about the pain in her lower back, coccyx, right leg, and right foot. She also described her depression and anxiety.
According to Plaintiff, she experienced "horrible" pain in her back (id. at 55). She described it as a constant "throb, sharp, dull ache" (id. at 44). She indicated that message therapy helped "a little" along with Advil and Aleve (id.). The pain limited her ability to bend, to lift objects that weighed more than ten pounds, and to stand or sit for more than one hour (id. at 45).
Plaintiff testified that she often got "charley horses" in her right calf and experienced constant pain of 6 or 7 on a scale of 1 to 10 from the spurs in her right heel (id. at 41-42, 46-47). "[C]onstant[]" standing or walking exacerbated the pain (id. at 49). Compression socks decreased the swelling in her right foot "a little," Advil and Aleve provided pain relief, and gabapentin alleviated the pain at night (id. at 48-50). Changing position also relieved the pain in her calf and foot (id. at 50). She could sit and stand comfortably for about an hour before changing position (id. at 50-51). She was able to walk about a block and do light housekeeping, such as washing the dishes and sweeping the floor, could use a treadmill once a week, and could occasionally ride a bicycle (id. at 42, 51, 55). She was scheduled to have surgery on her calf in September 2016 (id. at 41, 48).
Plaintiff was being treated by a psychotherapist "once or twice a month" for depression and anxiety (id. at 52). When she was depressed, she felt restless, anxious, and complained about pain "a lot" (id. at 53). The prescribed medication helped "a little" (id.). She relaxed by reading, doing word puzzles, watching TV, and listening to music (id.). "Sometimes" she had difficulty concentrating and staying focused (id.).
In order to elicit the VE's opinion of whether Plaintiff could perform her past jobs or jobs that existed in the regional and national economy, the ALJ asked the VE to assume a person with Plaintiff's age, education, and work experience who could engage in sedentary work (id. at 58).
routine, repetitive tasks, which require[] concentration for two-hour time periods. (id.). The VE testified that the hypothetical individual could not perform Plaintiff's past jobs, but could work as an assembler, inspector, and information clerk (id.). Those jobs would also be available to a person who needed to alternate between sitting and standing every ten minutes (id. at 59). However, those jobs would not be available to a person who needed to elevate her legs "[s]everal feet off the ground" throughout the course of the workday or who missed work three or more days per month (id. at 59-60).
In determining whether Plaintiff was disabled, the ALJ conducted the five-part analysis required by the regulations. See 20 C.F.R. § 404.1520(a)(4)(i-v); see also Goodermote, 690 F.2d at 6-7. At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the application date of September 1, 2014 (A.R. at 21). See 20 C.F.R. § 404.1571 et seq. At step two, the ALJ found that Plaintiff had the following severe impairments: scoliosis and sclerosis; right plantar fasciitis/heel spur syndrome; right knee patella femoral arthritis/chondromalacia; and diverticulosis (A.R. at 21). See 20 C.F.R. § 404.1520(c). The ALJ found that Plaintiff's hypertension was not severe because it was controlled (A.R. at 21). For purposes of step three, the ALJ reviewed Plaintiff's severe impairments and her mental impairments, which he did not address at step two, and the related "paragraph B" and "paragraph C" criteria, and determined that her impairments, either alone or in combination, did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (id. at 21-22). See 20 C.F.R. §§ 404.2520(d), 404.1525, 404.1526.
Before proceeding to steps four and five, the ALJ assessed Plaintiff's RFC for use at step four to determine whether she could perform past relevant work and, if the analysis continued to step five, to determine if she could do other work. See 20 C.F.R. § 404.1520(e). The ALJ determined that the Plaintiff had the RFC to perform the full range of sedentary work,
(A.R. at 22). At step four, the ALJ found that Plaintiff was not able to perform her past relevant work (id. at 26). See 20 C.F.R. § 404.1565. However, considering Plaintiff's age, education, work experience, and RFC, Plaintiff could perform the sedentary jobs of assembler, inspector, and information clerk, which existed in the national and regional economies (A.R. at 26-27). See 20 C.F.R. §§ 404.1569, 404.1569(a). Consequently, on September 20, 2016, the ALJ concluded that Plaintiff was not disabled since the date of her application, September 1, 2014 (A.R. at 27). See 20 C.F.R. § 404.1520(g).
Plaintiff seeks remand based on the ALJ's omission of depression and anxiety as severe impairments at step two (Dkt. No. 13 at 9-12). The Commissioner persuasively argues that the ALJ's omission was inadvertent and clearly harmless in view of the ALJ's consideration of Plaintiff's mental impairments at step three and his inclusion in the RFC of limitations based on Plaintiff's mental impairments (Dkt. No. 15 at 8-12).
Given that the ALJ evaluated limitations attributable to Plaintiff's "mental impairment[s]" at step three, it appears that their omission as severe impairments at step two was inadvertent (A.R. at 21-22). See Johnson v. Astrue, 811 F.Supp.2d 618, 628 (E.D.N.Y. 2011) ("[I]f plaintiff's HIV was not a severe impairment under step two, that would end the ALJ's inquiry with respect to plaintiff's HIV and there would be no need for the ALJ to proceed to determine whether it is a listed impairment under step three and whether plaintiff possesses the residual functional capacity to perform her past relevant work under step four. Thus, the Court concludes that the ALJ found plaintiff's HIV to be a severe impairment and its absence from the decision is an inadvertent typographical error."). At step three, the ALJ stated, "[t]he severity of [Plaintiff's] mental impairment[s] does not meet or medically equal the criteria of Listings 12.04 and 12.06" (A.R. at 22). Those Listings address "affective disorders," including depression, Mulcahey v. Colvin, No. 2:14-cv-523-JHR, 2015 WL 3948130, at *2 (D. Me. June 28, 2015), and "anxiety-related disorders." Morrison v. Astrue, Civil No. 09-141-P-S, 2009 WL 5218058, at *2 (D. Me. Dec. 30, 2009).
In making the step three determination, the ALJ followed the "special technique" required to evaluate mental impairments. 20 C.F.R. § 404.1520a(a), (b)(1).
The ALJ's intent to find Plaintiff's mental impairments severe at step two can be inferred from his step three findings. The ALJ assessed Plaintiff's paragraph B criteria as follows: mild restrictions on activities of daily living; mild difficulties with social functioning; moderate difficulties with concentration, persistence, or pace; and no episodes of decompensation (A.R. at 22). These findings were consistent with the only medical opinions in the record related to Plaintiff's mental health impairments; that is, those of the state agency consultants (id. at 86, 102-03). The ALJ further determined that "the evidence fails to establish the `paragraph C' criteria" (id. at 22). He then took the next step of comparing Plaintiff's paragraph B functional ratings to the Listings that address depression and anxiety (id.). See 20 C.F.R. § 404.1520a(d)(2). If the ALJ had not considered Plaintiff's depression and anxiety to be severe impairments at step two, he would not have considered whether the conditions met or equaled the Listings. See Newman v. Astrue, Civil Action No. 5:06-cv-00955, 2008 WL 4298550, at *16 (S.D. W. Va. Sept. 18, 2008). Inasmuch as the ALJ's analysis reveals that he treated Plaintiff's mental impairments as though he had found them severe at stage two of the sequential evaluation process, the omission of depression and anxiety from the listing of severe impairments at step two was harmless.
There are additional reasons supporting the determination that the ALJ's omission of Plaintiff's mental impairments at step two does not require remand. Because step two's "severity requirement is . . . a de minimus policy, designed to do no more than screen out groundless claims," McDonald v. Sec'y of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986), the ALJ's finding that Plaintiff had other severe impairments is all that step two required as long as the ALJ considered all of Plaintiff's functional limitations in crafting the RFC (A.R. at 21). See Heatley v. Comm'r of Soc. Sec., 382 F. App'x 823, 824-25 (11th Cir. 2010); Coe v. Colvin, Civil Action No. 15-30037-MGM, 2016 WL 3350995, at *6 (D. Mass. June 15, 2016). By limiting Plaintiff's work to "simple routine tasks which require concentration for 2 hour time periods," the RFC took into account Plaintiff's moderate limitation in her ability to concentrate and to maintain persistence and pace (A.R. at 22). Plaintiff fails to identify any additional functional limitations attributable to her mental impairments. Thus, "any error in failing to explicitly include [anxiety and depression] in the list of severe impairments was harmless because the ALJ appropriately considered [them] throughout the evaluation process and accounted for the impairment[s] in his determination of Plaintiff's RFC." Coe, 2016 WL 3350995, at *6 (citing Perez v. Astrue, Civil Action No. 11-30074-KPN, 2011 WL 6132547, at *4 (D. Mass. Dec. 7, 2011)). See Newman, 2008 WL 4298550, at *16 (finding the ALJ's omission of claimant's myofascial pain syndrome at step two harmless where the ALJ considered the condition individually under the Listings and in assessing the claimant's RFC).
Notwithstanding the ALJ's omission of depression and anxiety as severe impairments at step two, remand is not warranted on this basis.
Plaintiff next contends that the ALJ erred in evaluating Plaintiff's physical condition by ignoring her 2015 and 2016 treatment records (Dkt. No. 13 at 12-13). The 2015 and 2016 evidence, however, was cumulative of the treatment records the ALJ relied on to support the RFC.
"It is well settled that an ALJ may not make factual findings by ignoring evidence." Dias, 52 F. Supp. 3d at 285 (D. Mass. 2014) (citing Nguyen, 172 F.3d at 35). However, "[a]n ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party." NLRB v. Beverly Enters.-Mass., Inc., 174 F.3d 13, 26 (1st Cir. 1999). See DaSilva-Santos v. Astrue, 596 F.Supp.2d 181, 188 (D. Mass. 2009) ("The hearing officer was not obligated . . . to address directly every piece of evidence."). "The failure to address certain evidence . . . will not undermine an ALJ's conclusion "`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 [ALJ] or otherwise failed to support the claimant's position."'" Dias, 52 F. Supp. 3d at 285 (quoting Coggon v. Barnhart, 354 F.Supp.2d 40, 55 (D. Mass. 2005)).
The ALJ indicated that he carefully considered "all the evidence" (A.R. at 19, 22). Plaintiff faults the ALJ for failing to mention the 2015 and 2016 treatment records from New England Orthopedic Surgeons (NEOS), Western Massachusetts Podiatry Associates (WMPA), Baystate Rehabilitation, Pioneer Spine and Sports Physicians (PSSP), and Langlitz Chiropractic & Massage (Dkt. No. 13 at 13). Most of the records to which Plaintiff points address treatment of Plaintiff's right foot and lower back.
The 2015 and 2016 records of WMPA and NEOS and the 2016 records of Baystate Rehabilitation addressed the treatment of Plaintiff's right foot (A.R. at 500-25, 526-28, 614-15, 723-31, 783-817).
The 2015 and 2016 records of PSSP and Langlitz Chiropractic & Massage concerning the treatment of Plaintiff's lower back do not contradict the findings of Dr. Brown or the opinions of the state agency consultants, which the ALJ considered (id. at 25-26, 87-89, 104-06, 492-93, 604-11, 634-70, 768-69, 856-59). During Plaintiff's February 12, 2016 chiropractic visit, Plaintiff described her lower back pain as a 3 on a scale of 0 to 10 (id. at 635). The notes of Plaintiff's April 27, 2016 visit to PSSP indicate that Plaintiff's MRI "demonstrated a normal lumbar spine, but she was noted to have bilateral SI joint sclerosis" and "demonstrated evidence of sacroiliitis" (id. at 605, 607, 609). Because "[s]he failed a course of physical therapy in the past," she wanted to proceed with bilateral SI joint injections (id. at 607). An injection that she received in June provided "some relief" (id. at 857). Anne Nunnelly PA-C prescribed gabapentin for pain on July 27, 2016 (id. at 859). Plaintiff testified that the medication relieved her pain "a little" at night (id. at 49-50). None of Plaintiff's treatment providers recommended surgery for her back or provided opinion evidence about functional limitations attributable to her back problems.
Plaintiff's failure to identify evidence showing that she was disabled combined with her performance of daily living activities including bicycling and using a treadmill, doom her argument that the ALJ's failure to discuss the 2015 and 2016 treatment records resulted in an erroneous RFC (id. at 22, 26). See Doyle v. Colvin, Civil Action No. 14-30098-MGM, 2015 WL 3649795, at *4 (D. Mass. June 10, 2015) ("To succeed, `Plaintiff must show not only the existence of evidence in the record supporting her position but must also demonstrate the evidence relied on by the ALJ is either insufficient, incorrect, or both.'") (quoting Greene v. Astrue, Civil Action No. 11-30084-KPN, 2012 WL 1248977 at *3 (D. Mass. Apr.12, 2012)).
The opinions of Dr. Benanti and Dr. Purins, the state agency medical consultants, are the only record opinions addressing Plaintiff's physical RFC (A.R. at 87-89, 104-06). The state agency consultants agreed on Plaintiff's physical limitations (id.). Plaintiff seeks remand because while the ALJ's decision reflected his review of Dr. Purins' opinion of Plaintiff's physical RFC, he failed to assign it a specific weight (Dkt. No. 13 at 13-15; A.R. at 25-26). The Commissioner counters that any error was harmless because the ALJ's RFC was more favorable to Plaintiff than Dr. Purins' (Dkt. No. 15 at 15).
The ALJ must consider the medical opinions in the record. See Bourinot v. Colvin, 95 F.Supp.3d 161, 175 (D. Mass. 2015); 20 C.F.R. § 404.1527(b), (c).
The ALJ's decision demonstrates that he was aware of the reports of two licensed physicians, Dr. Purins and Dr. Brown (A.R. at 25-26). Although Plaintiff is correct that the SSA's regulations required the ALJ to explain what weight he assigned to Dr. Purins' opinion and to explain the basis for the assignment and the ALJ failed to follow the proper procedure, the error was harmless because Dr. Purins' opinion did not support a finding of disability and the ALJ's RFC was more favorable to Plaintiff than Dr. Purins' RFC analysis. "If the ALJ's RFC is `generally consistent' with the findings in a medical opinion, or if the RFC is `more favorable' to the claimant than the opinion's findings, then `[t]here is no reason to believe that a further analysis or weighing of [the] opinion could advance [the claimant's] claim of disability.'" Perez Guerrero v. Colvin, CASE NO. 14-23841-CIV-LENARD/GOODMAN, 2016 WL 4807953, at *5 (S.D. Fla. Mar. 23, 2016) (alterations in original) (quoting Thompson v. Colvin, 551 F. App'x 944, 947-48 (10th Cir. 2014)).
According to the ALJ, Plaintiff could not perform her past job as a food service worker, but had the RFC to perform the full range of sedentary work with the following additional limitations: no climbing, twisting, kneeling, crawling; no right foot controls; no rough terrain; no heights; no ladders; and no hazardous machinery (A.R. at 22). Dr. Purins' opinion — that Plaintiff was not disabled because she could perform her past relevant job as a food service worker in an assisted living facility — was less favorable to Plaintiff (id. at 26, 105-06, 108-09). The Dictionary of Occupational Titles ("DOT") classified Plaintiff's former occupation, a food service worker, hospital, 319.677-014, as medium work (id. at 57-58).
The ALJ was permitted to "render[] common-sense judgments about functional capacity" based on Dr. Purins' and Dr. Brown's reports and conclude that Plaintiff had the RFC to perform sedentary work with the additional limitations specified in the RFC. Gordils v. Sec'y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990) (per curiam). Although Dr. Brown did not provide an RFC assessment, his diagnoses of "chronic low back pain positive for scoliosis with curve to the left" and "chronic bilateral foot pain, probable plantar fasciitis [of the] right foot, left foot in remission" did not indicate that these conditions were disabling and he did not assign functional limitations based on these impairments (A.R. at 25, 490-94). Because "the only medical findings in the record suggested that [Plaintiff] exhibited little in the way of physical impairments, but nowhere in the record did any physician state in functional terms that [Plaintiff] had the exertional capacity to meet the requirements of sedentary work, the ALJ [was] permitted to reach that functional conclusion himself." Gordils, 921 F.2d at 329. When taken in combination, Dr. Purins' and Dr. Brown's reports constitute substantial evidence to support the ALJ's assessment of Plaintiff's RFC and remand is not warranted. See id.; see also Ward, 211 F.3d at 656 ("a remand is not essential if it will amount to no more than an empty exercise.").
Finally, Plaintiff complains that the hypothetical posed to the VE at the hearing contained a restriction that the ALJ omitted from the RFC (Dkt. No. 13 at 15-20). Specifically, the ALJ included "no more than occasional stooping, bending, or balancing" in the hypothetical, but omitted this limitation from the RFC (A.R. at 22, 58). Because the limitations in the hypothetical were more restrictive than the limitations in the RFC, however, the omission was harmless. "`[I]f the [expert] believed that jobs existed . . . which could be performed by a person with the set of limitations identified in the hypothetical, then a person with a set of limitations less restrictive than that identified in the hypothetical — i.e., the set of limitations identified in the [RFC] — could perform those same jobs.'" Doyle, 2015 WL 3649795, at *5 (alterations in original) (quoting Poland v. Apfel, No CIV C-99-128-B, 2000 WL 36950 at *14 n.19 (D.N.H. Dec. 22, 1999)). See Garcia, 2014 WL 458192, at *4 ("If an individual who is completely precluded from exposure to a specified condition is found capable of performing certain jobs, it necessarily follows that the same person is capable of working in jobs with only occasional exposure."); Warren v. Astrue, C.A. No. 10-cv-30053-MAP, 2011 WL 31292, at *5 (D. Mass. Jan.4, 2011) ("the hypothetical posed to the vocational expert was more restrictive and, thus, more favorable to Plaintiff."). Contrast Slovak v. Barnhart, No. Civ. 02-231-M, 2003 WL 21246049, at *7 (D.N.H. May 29, 2003) (the hypotheticals were less restrictive than the ALJ's RFC assessment).
If the record contained an opinion from any medical source supporting Plaintiff's claim of disability, the court would remand this case with directions that the ALJ reconsider the medical evidence of record and explain his treatment of the medical opinions in the record in compliance with the regulations. There is, however, no opinion evidence supporting Plaintiff's claim of disability. Notwithstanding multiple errors in the ALJ's written decision that should have been avoided, Plaintiff's Motion for Judgment on the Pleadings (Dkt. No. 12) is DENIED and the Commissioner's Motion for an Order Affirming the Decision of the Commissioner (Dkt. No. 14) is GRANTED for the above-stated reasons. The case will be closed.
It is so ordered.
