Boston v . SSA CV-10-250-PB 06/22/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Wanda Boston

v. Civil N o . 10-cv-00250-PB Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Wanda Boston challenges the Social Security Commissioner’s

denial of her application for disability insurance benefits.

Boston contends that the administrative law judge incorrectly

found that she was not disabled. For the reasons set forth

below, I affirm the Commissioner’s decision.

I. BACKGROUND

A. Administrative Proceedings

On June 2 3 , 2008, Wanda Boston filed an application for

Disability Insurance Benefits (“DIB”), alleging disability as of

November 1 5 , 2007. (Tr. 96-103). After her application was

denied, Boston requested an administrative hearing. (Tr. 4 7 ) .

On January 1 1 , 2010 an Administrative Law Judge (“ALJ”) held a hearing at which Boston, who was represented by counsel,

appeared and testified. (Tr. 4-26). On January 2 7 , 2010, the

ALJ issued his decision finding that Boston was not disabled.

(Tr. 27-41). After the Decision Review Board failed to complete

its review within the allotted time, the ALJ’s decision became

final and ripe for judicial review.

B. Introduction

Boston was 49 years old when the ALJ issued his decision.

(Tr. 7 ) . Boston alleged disability due to pain and problems

involving her “back and right side” that affected her ability to

stand for long periods of time. (Tr. 121-22, 1 4 6 ) . In the

disability report filed with her appeal Boston also noted, for

the first time, that she was receiving counseling. (Tr. 146-

47).

C. Physical Impairments

Notes from D r . Hoke Shirley indicate that Boston suffers

from rheumatoid arthritis 1 . (Tr. 1 8 2 , 240-41). On December 7 ,

1 “Rheumatoid Arthritis” is a “chronic systemic disease primarily of the joints . . . usually marked by inflammatory changes in the synovial membranes and articular structures and by muscle atrophy and rarefaction of the bones.” Dorland’s Illustrated Medical Dictionary 1 5 2 , 159 (31st ed. 2007).

[2] 2006, D r . Shirley noted that, upon examination, Boston had a

full range of motion in the joints of her extremities. (Tr.

182). However, Boston’s then current medications were not

working. (Tr. 182-83). D r . Shirley “[n]oted osteoarthritic

change superimposed in the right knee” and he reported that

Boston needed “additional therapy to methotrexate2 to control her

rheumatoid disease.” (Tr. 1 8 2 ) . Accordingly, D r . Shirley

recommended alternative medication and other treatment. (Tr.

183).

On January 1 1 , 2007, D r . Shirley noted that Boston was

tolerating her new medication well and that her rheumatoid

disease was better controlled. (Tr. 1 8 0 ) . She had a full range

of motion in most extremity joints. (Tr. 1 8 0 ) .

On March 8 , 2007, D r . Shirley reported that Boston had done

extremely well, without any “flare-ups” in her extremities.

(Tr. 1 7 8 ) . Boston reported a “little increased articular pain”

in her hands and feet occasionally. (Tr. 1 7 8 ) . She had a full

range of motion in all extremity joints. (Tr. 1 7 8 ) .

2 “Methotrexate” refers to “a folic acid antagonist that acts by inhibiting synthesis of DNA, RNA, thymidylate, and protein” and is used in the treatment of rheumatoid arthritis. Id. at 1169. [3] On May 1 7 , 2007, D r . Shirley noted that Boston was “not

doing as well,” having reported pain in her hands, wrists, and

feet. (Tr. 1 7 5 ) . Examination showed some limitation of motion

in her left wrist, but a good range of motion in other

extremities. (Tr. 1 7 5 ) . D r . Shirley opined “one cannot deny

the irrefutable erosive disease and joint space narrowing that

are noted in the hand and foot films. I do think she has mildly

active disease.” (Tr. 2 2 2 ) .

On July 1 6 , 2007, D r . Shirley stated that Boston was “doing

pretty well.” (Tr. 1 7 3 ) . Boston had her gallbladder removed,

and D r . Shirley opined that Boston’s “flare-up” had been due to

the gallbladder disease. (Tr. 1 7 3 ) . On September 1 2 , 2007, D r .

Shirley noted that Boston had gone off her medication, but was

“not flaring-up too badly.” (Tr. 1 7 1 ) . She had a full range of

motion in all extremity joints except the right knee. (Tr.

171). D r . Shirley stated that Boston’s rheumatoid disease

remained under good control. (Tr. 1 7 1 ) .

On October 3 1 , 2007, D r . Shirley noted that Boston was

doing relatively well. (Tr. 2 1 8 ) . She had “a little

[4] dislocation of her right knee” and some pain on patellofemoral3

pressure testing with some crepitus 4 , but otherwise had a full

range of motion. Weakness was noted in her right quadriceps

muscle and there also trace effusion5 of the right knee. (Tr.

218). On December 7 , 2007, Boston was given a knee brace. (Tr.

217).

On January 7 , 2008, D r . Shirley noted that Boston was

experiencing “severe pain with abduction6, both with passive

maneuvers and on forced maneuvers of that left shoulder where

she has pain on forced external rotation and a little pain on

forced internal rotation. . . . Apprehension7 test is severely

painful.” (Tr. 1 6 9 ) . D r . Shirley’s assessment of Boston

indicated that she had “substantial rotator cuff issues in the

3 “Patellofemoral” is defined as “pertaining to the patella [bone situated at the front of the knee] and the femur [bone that extends from the pelvis to the knee].” Id. at 696, 1415.

4 “Crepitus” is a “grating sensation caused by the rubbing together of the dry synovial surfaces of joints.” Id. at 437.

5 “Effusion” is the “escape of fluid into a part or tissue.” Id. at 603.

6 “Abduction” is the “draw[ing] away from the median plane or (in the digits) from the axial line of a limb.” Id. at 2 .

7 “Apprehension” is “anticipatory fear or anxiety.” Id. at 122. [5] right shoulder.” (Tr. 1 6 9 ) . Boston otherwise had a full range

of motion in all extremity joints. (Tr. 1 6 9 ) .

On March 1 0 , 2008, D r . Shirley noted that Boston was

reporting increased pain down her right leg that had persisted

for three or four weeks. (Tr. 1 6 7 ) . Upon examination, she was

missing the right knee reflex. (Tr. 1 6 7 ) . She had a full range

of motion in all extremity joints and no pain with straight leg

raising. Strength testing was 5/5. (Tr. 1 6 7 ) . D r . Shirley

stated that Boston was doing reasonably well with her rheumatoid

disease, but her “right knee, as usual, has a lot of crepitus

and a 1+ effusion” and her disease was still bothering her.

(Tr. 1 6 7 ) .

On April 1 5 , 2008, D r . Shirley stated that, chronically,

Boston’s rheumatoid arthritis was not active. (Tr. 1 6 6 ) .

Boston complained, however, of mechanical back pain, as well as

osteoarthritis pain in her right knee. (Tr. 1 6 5 ) . D r . Shirley

noted that Boston had some soft-tissue pain in her back, but was

otherwise doing well. (Tr. 1 6 6 ) . Upon examination, Boston did

have some tender points in her neck, shoulder, back, and hip,

but had a good range of motion in most extremity joints and

negative straight leg raising. (Tr. 1 6 5 ) . D r . Shirley noted [6] that Boston had used more narcotic medication than he would have

expected given her back pain. (Tr. 1 6 5 ) . He proceeded to

perform bilateral trigger point injections of Depo-Medrol8 and

lidocaine9. (Tr. 1 6 6 ) .

Medical notes dated April 2 8 , 2008, indicate that Boston

complained of increasing back pain. (Tr. 1 8 8 ) . She reported

her pain as an 8 on a 0-10 scale. (Tr. 1 8 8 ) . Boston received a

minor diagnosis of back pain, which appeared to be soft-tissue

in origin. (Tr. 1 9 0 ) . Robaxin10 was prescribed. (Tr. 1 9 1 ) .

On June 4 , 2008, Boston visited the emergency room after

falling down some stairs. (Tr. 3 0 3 ) . She was complaining about

pain in her right hip, leg, and knee. (Tr. 3 0 3 ) . She was

diagnosed with right-sided pain after a fall. (Tr. 3 0 4 ) . A

8 “Depo-Medrol” is the “trademark for preparations of methylprednisolone acetate.” Id. at 499. “Methylprednisolone acetate” is “used in replacement therapy for adrenocortical insufficiency and as anti-inflammatory and immunosuppressant in a wide variety of disorders.” Id. at 1171. 9 “Lidocaine” is “a drug having anesthetic, sedative, analgesic, anticonvulsant, and cardiac depressant activities, used as a local anesthetic, applied topically to the skin and mucous membranes.” Id. at 1048. 10 “Robaxin” is a “trademark for preparations of methocarbamol.” Id. at 1675. “Methocarbamol” is “a skeletal muscle relaxant.” Id. at 1165. [7] radiology report on Boston’s right knee showed mild

osteoarthritis. (Tr. 3 0 7 ) . Three days later, Boston visited

the emergency room again, complaining of continued right leg

pain. (Tr. 3 0 1 ) . She was diagnosed with right leg pain

secondary to a contusion. (Tr. 3 0 2 ) .

On June 1 1 , 2008, D r . Shirley noted that Boston had a

degenerative knee. (Tr. 2 1 2 ) . Boston had also slipped on some

steps and had hurt her knee and hip. (Tr. 2 1 2 ) . Boston was

doing reasonably well with her rheumatoid disease. (Tr. 2 1 2 ) .

Boston had “a little quadriceps weakness in her right knee” as

well as effusion, but otherwise had a full range of motion.

(Tr. 2 1 2 ) . Straight leg raising was negative. (Tr. 2 1 2 ) .

On July 2 , 2008, in her function report, Boston indicated

that her daily activities consisted of showering, taking her

medications, watching television, doing laundry, sweeping and

washing floors, taking out the trash, reading, taking care of

her dogs, cats, and fish, visiting with her grandchildren, and

taking care of her husband. (Tr. 128-30). She had no problems

bathing, caring for her hair, shaving, or using the toilet.

(Tr. 1 2 9 ) . She stated she occasionally had problems buttoning

and zipping her clothes, cutting food, and opening things. (Tr. [8] 129). She did not need reminders to take care of herself, to

take her medications, or to go places. (Tr. 1 3 0 , 1 3 2 ) . She was

able to prepare simple, one-course meals. (Tr. 1 3 0 ) . She could

drive, and would go shopping for food, household items, and

medication. (Tr. 1 3 1 ) . She was able to manage her finances.

(Tr. 1 3 1 ) . She socialized with friends once or twice a month,

enjoyed reading and watching television. (Tr. 1 3 1 ) . She

estimated that she could lift 10-15 pounds, but stated that she

could not squat or kneel, that climbing stairs was difficult,

and that she could not stand for long or walk long distances.

(Tr. 1 3 3 ) . She also stated she was losing her eyesight and wore

glasses. (Tr. 1 3 4 ) . She had no problem paying attention or

following instructions. (Tr. 1 3 3 ) . She had no problem getting

along with others, handled stress well most of the time, and

could handle changes in her routine. (Tr. 1 3 4 ) .

Boston visited the emergency room on July 2 3 , 2008,

complaining of back pain radiating into her right leg. (Tr.

296). She was diagnosed with lumbar pain. (Tr. 2 9 7 ) . On

August 1 , 2008, Boston again visited the emergency room

complaining of back pain radiating into her right leg. (Tr.

[9] 294). She was diagnosed with lumbar radiculopathy11. (Tr. 2 9 5 ) .

On August 1 2 , 2008, D r . Dominic Geffken wrote a letter

outlining Boston’s medical problems and stating that they had

affected her ability to work. (Tr. 2 3 4 ) . A radiology report

from August of 2008 showed mild degenerative changes in Boston’s

lumbar spine. (Tr. 2 9 3 ) .

On September 1 9 , 2008, D r . Shirley noted that Boston had

undergone an MRI of her back. (Tr. 2 3 8 ) . It showed minimal

degenerative disc disease and degenerative joint disease of her

lumbar spine, but no evidence of central or foraminal stenosis12

or substantial discogenic13 injury. (Tr. 2 3 8 ) . In addition to

back pain, Boston reported “increasing pain in the wrists, the

knuckles, bilaterally in the knees, and certainly in the

forefeet, bilaterally.” (Tr. 2 3 8 ) . These symptoms were said to

be “consistent with some findings on her examination.” (Tr.

238). A few days later, Boston injured her right wrist while

11 “Radiculopathy” is a “disease of the nerve roots.” Id. at 1595. 12 “Stenosis” is “an abnormal narrowing of a duct or canal.” Id. at 1795. 13 “Discogenic” is “caused by the derangement of an intervertebral disc.” Id. at 534. [10] doing laundry and was diagnosed with a contusion. (Tr. 280-81).

On January 7 , 2009, Boston reported substantial hip pain.

(Tr. 2 3 6 ) . She was doing pretty well with her peripheral

arthritis and rheumatoid disease. (Tr. 2 3 6 ) . Her right knee

was still a problem, but she had a full range of motion in all

joints. (Tr. 2 3 6 ) . D r . Shirley stated, however, that Boston

was quite limited in her functional capacity and opined that she

did not think she could work full-time in any capacity. (Tr.

236). She was described as having “dysfunctional lumbar pain”

and “substantial post-inflammatory osteoarthritis of the right

knee.” (Tr. 2 3 6 ) .

Boston fell and injured her right hand in January of 2009.

No acute process was detected, and she was diagnosed with a

wrist sprain. (Tr. 266, 2 6 8 ) . She fell and injured her right

shoulder in February of 2009 and was diagnosed with a contusion.

(Tr. 248-249).

On March 9, 2009, D r . Shirley stated that Boston was doing

fairly well from an inflammatory disease standpoint with her

rheumatoid disease. (Tr. 2 3 5 ) . However, it was noted “[h]er

back pain is another problem that is certainly and currently not

well-controlled.” (Tr. 2 3 5 ) . Boston reported some right hip [11] pain that had increased after a slip and fall. (Tr. 2 3 5 ) . Dr.

Shirley noted that Boston had substantial lumbar dysfunctional

pain without discogenic abnormalities noted on an MRI. (Tr.

235). She had a good range of motion in most extremity joints.

(Tr. 2 3 5 ) . “Further infusions” were recommended. (Tr. 2 3 5 ) .

From May 1 3 , 2009 through November 2 4 , 2009, Boston made

several visits to Concord Hospital for exacerbation of chronic

back pain, migraine headache, chest pain, vomiting, injuries

from falls, right knee problems, hip pain, and right radicular

leg pain. (Tr. 381-417).

D. Mental Impairments

On August 2 5 , 2008, Boston reported that she had started

counseling with Maryann Simoni, M.A. (Tr. 146-47). On

September 9, 2008, she noted she was seeing M s . Simoni for

“mental health sessions” and that she had also had an

appointment with a psychiatrist, William Dinon, Ph.D., on

September 1 2 , 2008, for a psychiatric evaluation. (Tr. 1 5 3 ) .

Records from Concord Hospital Family Health Center indicate

Boston was seen for counseling with David R. Twyon, MSW, LICSW

on July 9, 2008. (Tr. 554-56). She thereafter started sessions

with M s . Simoni on August 5 , 2008 and continued to see her on [12] August 1 8 , 2008, August 2 5 , 2008, September 1 6 , 2008, and

October 9, 2008. (Tr. 521-24, 529-30, 534-35, 542-47). Ms.

Simoni opined that Boston suffered from “309.0 Adjustment

Disorder with Depressed Mood” and rule/out “300.4 Dysthymic

Disorder.” (Tr. 5 4 4 ) .

She was assigned a Global Assessment of Functioning (GAF)

score of 62. 1 4 (Tr. 5 4 4 ) .

E. Physician Assessments

On July 1 5 , 2008, D r . Charles Meader completed a physical

residual functional capacity (RFC) assessment on behalf of the

Agency. (Tr. 226-33). D r . Meader concluded that Boston could

lift and carry up to ten pounds occasionally and frequently.

(Tr. 2 2 7 ) . He found she could stand and/or walk for at least

two hours in an eight-hour workday and that she could sit for up

to six hours in an eight-hour workday. (Tr. 2 2 7 ) . According to

Dr. Meader, she had an unlimited ability to push and pull; could

occasionally climb, balance, stoop, kneel, crouch, and crawl;

and was advised to avoid concentrated exposure to temperature

14 A GAF of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social stressors and no more than a slight impairment in social, occupational, or school functioning. Diagnostic and Statistical Manual of Mental Disorders 34 (4th Ed. 2000). [13] extremes and hazards (machinery, heights, e t c . ) . (Tr. 228-30).

Dr. Meader indicated that “[m]ost weight is given to Dr Hoke

Shirley, M D , rheumatologist, the treating source.” (Tr. 2 3 3 ) .

On July 2 , 2009, D r . Shirley completed a questionnaire in

which he opined Boston had significant functional limitations.

(Tr. 375-80). D r . Shirley stated that Boston’s pain would

“often” interfere with her attention and concentration, that she

has “good days” and “bad days” and would be absent from work

more than four times per month. (Tr. 3 7 9 ) . D r . Shirley opined

that Boston could walk for one-half of a block without rest or

severe pain; sit for 30 minutes continuously; stand for 15

minutes continuously; stand/walk for about two hours in an

eight-hour workday; sit for about four hours in an eight-hour

workday; and needed employment that would allow her to shift

positions at will from sitting, take unscheduled breaks during

an eight-hour workday every two hours and rest for 15-20 minutes

before returning to work. (Tr. 377-78). D r . Shirley further

opined that with prolonged sitting, Boston’s legs needed to be

elevated waist high and if working a sedentary job, her legs

should be elevated 30% of an eight-hour workday. (Tr. 3 7 8 ) .

Dr. Shirley stated that Boston could occasionally lift less than [14] 10 pounds, and her hands, fingers, and arms could grasp, turn,

and twist, finely manipulate, and reach, respectively, for 20%

of an eight-hour working day. (Tr. 378-79). He concluded that

Boston could never stoop or crouch and had difficulties with

extreme temperatures. (Tr. 3 7 9 ) .

F. Hearing Testimony

Boston testified that she was unable to work due to

arthritis in her knees and feet, as well as bad wrists and

fingers. (Tr. 9 ) . She also testified to having lupus and

fibromyalgia and added that she had occasional migraines. (Tr.

9).

On a typical day, she watched television and read

occasionally. (Tr. 1 0 ) . Once per week, she would clean the

house and do laundry. (Tr. 1 0 ) . She was able to lift a 12-pack

of soda, which she estimated to be about 10 pounds. (Tr. 1 0 ) .

She estimated that she could walk one-half a block and that she

could stand for 10-15 minutes. (Tr. 1 7 ) . She was able to drive

when necessary. (Tr. 1 0 ) . She testified that she suffered from

pain constantly and that her medications did not completely

relieve her pain, but did numb i t . (Tr. 1 1 , 1 8 ) . She stated

that her pain interfered with her ability to concentrate. (Tr. [15] 11-12, 1 6 ) . She experienced pain in her lower back, right leg,

feet, knees, hips, hands, and wrists. (Tr. 12-16). She said

that she spent most the day with her feet up and that she slept

in a reclining chair. (Tr. 13-15). She testified that she

could not use a computer due to the pain in her hands and

wrists. She had difficulty buttoning shirts. (Tr. 1 5 ) .

A vocational expert (“VE”) also testified at the hearing.

(Tr. 19-25). The ALJ asked the VE whether an individual who

could lift only ten pounds but who could walk or stand for up to

four hours per eight-hour workday and sit for up to six hours

per eight-hour workday, push and pull without limitation, and

who needed to avoid concentrated exposure to temperature

extremes and hazards, could perform Boston’s past relevant work

or other work that existed in significant numbers in the

national economy. (Tr. 2 1 ) .

The VE testified that Boston could perform her previous job

as a sewing machine operator. (Tr. 2 1 ) . The VE further

testified that there were other jobs existing in significant

numbers in the national economy which Boston could perform.

(Tr. 2 2 ) . Specifically, he testified that she could perform the

following jobs: telemarketer, DOT 299.357-014 (1,000 regionally [16] and 350,000 nationally); optical lens assembler, DOT 713.687-018

(50 regionally and 5,000 nationally); eye glass frame polisher,

DOT 713.684-038 (50 regionally and 5,000 nationally);

receptionist DOT 237.367-038 (500 regionally and 70,000

nationally); appointment clerk DOT 237.367-010 (500 regionally

and 70,000 nationally); information clerk, DOT 237.367-022 (500

regionally and 70,000 nationally) data clerk, DOT 209.387-022

(200 regionally and 40,000 nationally); credit card clerk

209.587014 (200 regionally and 40,000 nationally). (Tr. 22-23).

G. The ALJ’s Decision

The ALJ followed the five-step sequential evaluation

process established by the Social Security Administration, as

set forth at

, to determine whether Boston

was disabled. (Tr. 30-37). Under the first step, the ALJ found

that Boston had not engaged in substantial gainful activity

since her alleged onset date. (Tr. 3 2 ) . Under steps two and

three, the ALJ found that Boston had the severe impairments of

rheumatoid arthritis and lumbar degenerative disc disease but

that Boston had no impairment(s) that met or equaled an

impairment listed under Appendix 1 , Subpart P of Social Security

Regulations N o . 4 . (Tr. 32-33). [17] The ALJ went on to find that Boston retained the residual

functional capacity (RFC) to perform sedentary work involving

lifting up to ten pounds, walking or standing up to four hours

per eight-hour workday, sitting for up to six hours per eight-

hour workday, unlimited pushing and pulling, occasional bending,

stooping, kneeling, crouching, climbing, or crawling, and no

concentrated exposure to temperature extremes or hazards. (Tr.

33). The ALJ next found that Boston could perform her past

relevant work as a sewing machine operator. (Tr. 3 5 ) .

Alternatively, he found that Boston could make an adjustment to

other work in the national economy, noting VE testimony

regarding the jobs of telemarketer, optical goods assembler,

eyeglass frame polisher, clerical receptionist, appointment

clerk, information clerk, data clerk, and credit card clerk.

(Tr. 3 6 ) . Accordingly, the ALJ found that Boston was not

disabled at any time through the date of his decision. (Tr.

37).

II. STANDARD OF REVIEW

An individual seeking Social Security benefits has a right

to judicial review of a decision denying his application. [18] See

(g). I am empowered to affirm, modify,

reverse or remand the decision of the Commissioner based upon

the pleadings submitted by the parties and the transcript of the

administrative record. See

However, my review is limited

to determining whether the ALJ used the proper legal standards

and found facts based on the proper quantum of evidence. See

Ward v . Comm’r of Soc. Sec.,

5 2 , 655 (1st Cir. 2000).

The factual findings of the Commissioner are conclusive if

they are supported by “substantial evidence.” See

Substantial evidence is evidence which a “reasonable mind,

reviewing the evidence in the record as a whole, could accept

. . . as adequate to support [the] conclusion.” Rodriguez v .

Sec'y of Health & Human Servs.,

1 8 , 222 (1st Cir.

1981). If the substantial evidence standard is met, the ALJ’s

factual findings are conclusive even if the record could support

a different conclusion. See Irlanda Ortiz v . Sec'y of Health &

Human Servs.,

(1st Cir. 1991).

In addition, it is “the responsibility of the [ALJ] to

determine issues of credibility and to draw inferences from the

record evidence.”

. It is the role of the ALJ, and

not the role of this court, to resolve conflicts in the [19] evidence.

III. ANALYSIS

Boston challenges the ALJ’s decision for several reasons.

First, Boston faults the ALJ for failing to make findings with

respect to Boston’s mental status using the special technique

for mental impairments outlined in 20 C.F.R. Section 404.1520a.15

Next, Boston contends that the ALJ erred by failing to give D r .

Shirley’s opinion controlling weight. Finally, Boston claims

that the ALJ impermissibly determined that she had the RFC to

perform her past relevant work and/or other sedentary work. I

15 In addition Boston contends that the ALJ erred by failing to obtain the opinion of a psychiatrist or psychologist when presented with evidence of a potential mental impairment as required by

(h). While best practices counsel that the ALJ should have consulted with a psychiatrist or psychologist before rending his opinion,

(h) did not require him to do so in the instant case. Section 421(h) states that “an initial determination under subsection ( a ) , ( c ) , ( g ) , or (i)” shall be made only if the Commissioner endeavors to obtain a qualified opinion.

(h). By its terms, the precatory language of Section 421(h) does not apply to Section 421(d), which deals with ALJ hearings. As a result, because the first evidence of Boston’s counseling only arose before her ALJ hearing (i.e. following her “initial determination” for benefits), the Commissioner did not run afoul of the requirements of Section 421(h). See Plummer v . Apfel,

2 2 , 433 (3rd Cir. 1999).

[20] will address each argument in turn.

A. Mental Impairment Findings

In her initial application for benefits, Boston noted that

she was not limited in her ability to work by emotional or

mental problems. (Tr. 1 2 4 ) . Later, in her “Disability Report-

Appeal” form, Boston indicated that she had begun counseling

since her initial benefits denial. (Tr. 1 4 6 ) . Between August

and December 2008, Boston saw Maryann Simoni, M.A., LCMHC for

six (6) counseling sessions. (Tr. 521-24, 529-30, 534-35, 542-

47). During this period, Boston also saw D r . William Dinon for

a psychiatric evaluation. (Tr. 1 5 3 ) . A little less than two

weeks before the ALJ’s hearing, M s . Simoni opined that Boston

suffered from “Adjustment Disorder with Depressed Mood.” (Tr.

544). Following these evaluations, Boston was assigned a GAF

score of 6 2 , indicating mild symptoms with no more than a slight

impairment in social, occupational, or school functioning. (Tr.

544).

Boston claims that the ALJ erred in failing to make

findings regarding her adjustment disorder using the special

technique for mental impairments listed in 20 C.F.R. Section

404.1520a. The Commissioner contends that the ALJ was not [21] required to make such findings, and argues in the alternative

that any error by the ALJ was harmless.

While it would have been prudent for the ALJ to address

Boston’s counseling, Boston has not adequately alleged that she

suffers from a disabling mental impairment. See 20 C.F.R.

404.1520a(b)(1). The claimant bears the burden of providing

medical evidence showing that he or she suffers from a medically

determinable impairment that prevents him or her from working.

See

, 404.1520(a)(4)(ii); Gray v . Heckler,

(1st Cir. 1985). In her application for DIB,

Boston gave no indication that she suffered from any mental

ailments. (Tr. 1 2 4 ) . Moreover, when testifying in front of the

ALJ, neither Boston nor her lawyer considered it worthwhile to

offer or elicit any testimony about potential mental impairments

and how these impairments prevented her from working. See

, 404.1520(a)(4)(ii); Gray,

.

While Boston now highlights the opinion of M s . Simoni, M s .

Simoni is not an “acceptable medical source.” See

, 404.1513(a)(2). Because Boston failed to carry her

burden of establishing a medically determinable mental

impairment, the ALJ is excused from addressing these potential [22] impairments in his opinion. See

,

404.1520(a)(4)(ii); Rodriquez v . Sec’y of Health & Human Servs.,

, *4 n . 14 (1st Cir. 1995); Gray,

;

O’Dell v . Astrue,

7 8 , 390 (D.N.H. 2010).

B. Treating Source Opinion

Boston also claims that the ALJ committed reversible error

by failing to accord controlling weight to the opinion of D r .

Shirley. D r . Shirley, who had treated Boston for over ten

years, filled out an RFC questionnaire in which he opined that

Boston suffered from significant functional limitations which,

if credited, would support a finding of disability. (Tr. 23-24,

375-80). Underlying his opinion, D r . Shirley noted, were

clinical and objective signs o f : pain, crepitus, and decreased

range of motion in the right knee, severe tenderness/pain in her

lumbosacral spine, positive flip test and positive strait leg

raising. (Tr. 3 7 5 ) . While the ALJ recognized D r . Shirley’s

opinion, he afforded it less weight than that of state physician

Dr. Meader because of its inconsistency with the record. (Tr.

35).

A treating source’s opinion will be given controlling

weight if it is well supported by medically acceptable clinical [23] diagnostic techniques and is not inconsistent with other

substantial evidence in a claimant’s case record. See SSR 96-

2 p ,

, at *2 (July 2 , 1996). When a treating

physician's opinion is not given controlling weight, its weight

is dependent on the factors provided in

and 416.927.

at * 4 . These include: the evidence provided

to support the opinion, the degree to which the opinion is

consistent with the record, the extent of the treating source’s

knowledge of the impairment and other factors that are raised by

the claimant. See

(d)(1)-(6).

Dr. Shirley’s opinion is inconsistent with substantial

evidence in the record and therefore the ALJ was justified in

according his opinion less weight. See

(d)(2)-(4); Irlanda Ortiz,

. First,

Dr. Shirley’s opinion is inconsistent with his objective

findings. See

(d)(2)-(4). While D r .

Shirley indicated that his RFC was based on clinical findings of

decreased range of motion in the right knee, severe

tenderness/pain in her lumbosacral spine, positive flip test and

strait leg raising, his treatment notes consistently state that

Boston had a full range of motion of all joints, that flip and [24] strait leg tests failed to elicit back or leg pain, and that she

had full motor strength. (Tr. 165, 1 6 7 , 169, 1 7 1 , 1 7 8 , 1 8 0 ,

182, 212-15, 218-19, 2 2 1 , 223-25). Moreover, D r . Shirley’s

opinion that Boston suffers from severe tenderness/pain in her

lumbosacral spine is not entirely consistent with Boston’s

professed ability to perform certain activities of daily living

including: sweeping and washing the floors, emptying the trash,

doing the laundry and taking care of her husband. See

(c)(3); (Tr. 1 3 0 ) . Finally, D r . Shirley’s opinion is

inconsistent with the opinion of D r . Meader. After reviewing

Boston’s medical records and other evidence, D r . Meader opined

that Boston retained the ability to perform the physical

requirements of a sedentary job. See (Tr. 2 2 7 ) . While D r .

Meader is a non-treating physician, his opinion is detailed and

well supported with objective medical evidence contained in the

record.16 See

(d)(ii)(3); Berrios Lopez v .

16 D r . Meader, who formulated his RFC before D r . Shirley completed his own, noted that he relied primarily on the findings of D r . Shirley. The fact that D r . Meader determined Boston retained the RFC to perform sedentary work based on D r . Shirley’s objective findings is itself evidence of the inconsistency between D r . Shirley’s treatment notes and her own RFC.

[25] Sec’y of Health & Human Servs.,

2 7 , 431 (1st Cir.

1991); (Tr. 2 3 3 ) .

While other aspects of the record support D r . Shirley’s

opinion, the fact remains that his opinion is also inconsistent

with substantial evidence in the record. As a result, it was

within the ALJ’s discretion to afford his opinion less weight.

I cannot upset this decision. See Lizotte v . Sec’y of Health &

Human Servs.,

2 7 , 128 (1st Cir. 1981)(“ the resolution

of conflicts in the evidence and the determination of the

ultimate question of disability is for [the ALJ] not for the

doctors or for the courts”).

C. RFC to Perform Sedentary Work17

Finally, Boston contends that the ALJ’s determination that

she retained the residual functional capacity to perform the

full range of sedentary work was not substantially supported.

Specifically, Boston contends that the ALJ failed to

comprehensively describe her limitations in the series of

hypotheticals he posed to the VE because he neglected to

17 Because the ALJ’s determination that Boston retained the ability to perform sedentary work is supported by substantial evidence, I need not pass on the ALJ’s additional determination that she could perform her past relevant work.

[26] incorporate her mental limitations and the RFC of D r . Shirley.18

At step five of the sequential evaluation process the

burden shifts to the ALJ to show that there are jobs in the

national economy that the claimant can perform given her RFC.

Heggarty v . Sullivan,

9 0 , 995 (1st Cir. 1991). One

way for the ALJ to carry his burden is through the testimony of

a VE.

But in order for a vocational expert's answer to a hypothetical question to be relevant, the inputs into that hypothetical must correspond to conclusions that are supported by the outputs from the medical authorities. To guarantee that correspondence, the Administrative Law Judge must both clarify the outputs (deciding what testimony will be credited and resolving ambiguities), and accurately transmit the clarified output to the expert in the form of assumptions.

Arocho v . Sec’y of Health & Human Servs.,

7 4 , 375 (1st

Cir. 1982).

In this case, the hypotheticals the ALJ posed to the VE

18 Boston also faults the ALJ for his reliance on the opinion of Dr. Meader who she contends “did not have the benefit of reviewing over 300 pages of medical records added to the record since he reviewed the case.” Pl.’s Mot. for Order Reversing Decision of the Commissioner at 8 . However, Boston makes no attempt to address how the additional un-reviewed medical records would upset D r . Meader’s opinion. See Senay v . Astrue, C.A. N o . 06-548S,

, *4 (Jan. 3 0 , 2009).

[27] accurately corresponded with limitations drawn from the ALJ’s

RFC, which itself was supported by substantial evidence. See

As previously explained, Boston did not carry her burden of

proving that she suffered from a mental limitation.19 Therefore,

the ALJ did not err when he omitted Boston’s purported mental

limitations from his hypotheticals. Similarly, because the ALJ

was justified in excluding D r . Shirley’s opinion from the RFC,

Dr. Shirley’s limitations also needn’t be reflected in the ALJ’s

line of questioning. See Gallagher v . Astrue, N o . 08-CV-163-PB,

, *8-*9 (Apr. 3 , 2009). As a result, the ALJ,

through the testimony of the V E , carried his burden of proving

that Boston can perform jobs that exist in significant numbers

in the national economy.

IV. CONCLUSION

The ALJ’s decision is supported by substantial evidence in

the record. Therefore, I am without the authority to overturn

it. Plaintiff’s motion for order affirming the decision of the

19 While the ALJ bears the burden of proving the existence of jobs given the claimant’s RFC, the claimant bears the burden of proving the limitations that factor into the RFC.

(c)(2), 416.960(c)(2). [28] Commissioner (Doc. N o . 10) is granted, and the plaintiffs’

motion for order reversing the decision of the Commissioner

(Doc. N o . 9 ) is denied. Accordingly, the clerk shall enter

judgment and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

June 2 2 , 2011

cc: Raymond J. Kelly, Esq. Gretchen Leah Witt, Esq.

[29]