Bergeron v . SSA CV-11-395-PB 6/7/12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lori Bergeron

v. Case N o . 11-cv-395-PB Opinion N o .

Michael J. Astrue, Commissioner Social Security Administration

MEMORANDUM AND ORDER

Lori Bergeron seeks judicial review of a decision by the

Commissioner of the Social Security Administration denying her

applications for disability insurance and supplemental security

income benefits. Bergeron contends that the Administrative Law

Judge (“ALJ”) who considered her application made a number of

errors in determining that she retained a residual functional

capacity (“RFC”) for sedentary work. For the reasons provided

below, I affirm the Commissioner’s decision.

I. BACKGROUND1

Bergeron applied for disability insurance and supplemental

security income benefits on July 2 8 , 2006, when she was twenty-

eight years old. She alleged a disability onset date of June 1 ,

1 The background information is taken from the parties’ Joint Statement of Material Facts. See L.R. 9.1(b). Citations to the Administrative Transcript are indicated by “Tr.”

1 2006, due to an open compound fracture of her right tibia and

fibula, panic disorder, and bipolar disorder. She finished high

school and attended some college. In the past she worked as a

waitress, a secretary, and a manager/bookkeeper.

A. Administrative Proceedings

After Bergeron’s applications were denied at the initial

levels, she requested a hearing before an ALJ. Following a

hearing, the ALJ issued an unfavorable decision in October 2008.

Bergeron sought judicial review, and in November 2009, this

court reversed and remanded the ALJ’s decision because the ALJ

failed to explain the consideration she gave to the medical

opinion of Bergeron’s primary care provider. See Bergeron v .

Astrue, Civ. N o . 09-cv-070-SM,

(D.N.H. Nov. 1 0 ,

2009).

A new hearing was held before the same ALJ on March 2 8 ,

2011. The ALJ issued an unfavorable decision on April 1 3 , 2011.

At step two of the sequential analysis, the ALJ found that

Bergeron suffered from “right leg deformity, status post tibia

fracture,” and that the condition was a severe impairment. At

step three, however, the ALJ found that Bergeron did not have an

impairment or combination of impairments that met or medically

equaled a listing. The ALJ went on to find that Bergeron

retained the RFC to perform sedentary work involving only

occasional climbing, balancing, stooping, kneeling, crouching,

2 or crawling. At step four, she concluded that Bergeron was

capable of performing her past relevant work as a secretary.

Accordingly, the ALJ found that she was not disabled from June

1 , 2006, through the date of the decision. Bergeron again filed

for judicial review.

B. Relevant Medical Evidence2

Prior to her alleged onset date, Bergeron’s primary care

physician, D r . John Ford, treated her for chronic pain with

methadone. D r . Ford attempted to have her taper off methadone,

but continued to prescribe it when Bergeron did not tolerate the

attempted wean. D r . Ford referred Bergeron to a physician more

experienced in handling chronic methadone use, but it is not

clear from the record whether Bergeron met with this physician.

On June 1 , 2006, the alleged disability onset date,

Bergeron was involved in a motor vehicle accident as the driver

of a car that went across the midline and struck an oncoming

car. A physician at the Androscoggin Valley Hospital assessed

that Bergeron suffered multiple trauma, including four fractured

ribs, bilateral lung contusions, a fractured left sacrum, a

fractured left anterior pubic ramus, a fractured left L5

transverse process, an open compound fracture of the right tibia

2 Because Bergeron only challenges the ALJ’s physical RFC assessment, I need not recount her mental health treatment records and evaluations.

3 and fibula, and probable renal contusion. The physician noted

that Bergeron had lost consciousness, but that a CT scan of the

head revealed no structural abnormalities.

Bergeron was then transferred to the Dartmouth-Hitchcock

Medical Center, where she underwent surgery to repair the open

compound fracture of her right tibia and fibula and to remove

intra-abdominal fluid. She was discharged from the hospital on

June 5 , 2006, with a splint on her right leg and prescriptions

for oxycodone, methadone, and Neurontin. Bergeron’s discharge

instructions specified that she should use touch-down weight-

bearing only on her right leg.

Following her discharge, Bergeron received treatment for

her fracture from D r . Kenneth J. Koval of the Dartmouth-

Hitchcock Medical Center. An x-ray taken on June 2 1 , 2006,

showed that Bergeron’s fracture lines still were quite apparent

and that there was no evidence of significant union. On July

1 9 , an x-ray showed that Bergeron’s tibia and fibula were

unchanged.

Approximately two weeks later, Bergeron was admitted to the

Dartmouth-Hitchcock Medical Center, where physicians noted that

she had developed inflammation of the bone caused by infection

in her fracture wound and that the skin overlying the fracture

was necrotic, indicating cell death. Bergeron underwent another

surgery for irrigation and debridement of the wound; removal of

4 previously placed intramedullary fixation rod and screws;

application of an external fixator to stabilize the fracture;

irrigation, debridement, and replacement of antibiotic beads;

and plastic surgery to her right leg with spilt skin graft. She

was discharged a week later with instructions not to bear weight

on her right leg and to keep the leg elevated.

At a follow-up visit on August 1 4 , D r . Koval noted that

Bergeron’s external fixator was intact, her pin sites were

clean, her skin graft appeared viable without significant

drainage, and her surgical wounds were well-healed. Bergeron

reported that her pain was relatively well-controlled. Dr.

Christopher P. Demas, the physician who had performed Bergeron’s

skin graft, noted that the graft was 100% “take” and looked

perfect, with no evidence of infection, seroma, or hematoma.

Dr. Koval placed Bergeron’s ankle in a posterior splint and

instructed her to remain non-weight-bearing until her next x-ray

in two weeks. He noted that he had discussed with Bergeron that

she might need a bone graft for the fracture to fully heal.

On August 2 4 , 2006, D r . Patrick R. Olson noted that

Bergeron’s external fixator was intact, her pin sites were

clean, her surgical wounds were well-healed, and her skin graft

was intact. Bergeron reported that her main symptom was pain in

her leg. D r . Olson urged Bergeron to quit smoking, as it could

prevent bone healing, and instructed her to continue to remain

5 non-weight-bearing. An x-ray revealed that Bergeron’s fracture

was unchanged. On the same date, D r . Demas noted that

Bergeron’s skin graft was 90% healed. Bergeron requested

narcotics for pain, but D r . Demas felt that she no longer

required narcotics for her skin graft. He advised Bergeron to

apply moisturizer to the area.

The following day, Bergeron met with D r . Gilbert J.

Fanciullo to discuss pain medication. D r . Fanciullo noted

Bergeron’s remote history of heroin abuse and advised her that

he would not prescribe oxycodone. D r . Fanciullo did agree to

prescribe methadone and hydromorphone as needed while the

external fixator remained in Bergeron’s leg, but stated that he

would wean her off of all opioids after removal of the device.

Dr. Fanciullo noted that it would be appropriate for D r . Ford to

continue to prescribe methadone for Bergeron’s lower back pain

after that point.

An x-ray taken on September 5 , 2006, showed that Bergeron’s

fracture lines remained visible and that extensive soft tissue

deformities were present. On September 1 4 , D r . Jose-Mario

Fontanilla noted that Bergeron’s delayed bone healing was

indicative of ongoing infection, and that Bergeron might need a

bone graft. On that same date, D r . Demas noted that Bergeron’s

skin graft was essentially totally healed and released her from

active follow-up.

6 On September 2 9 , D r . Olson noted that Bergeron appeared

obviously distressed. She reported falling and hitting her

external fixator, resulting in severe pain in her tibia. Dr.

Olson determined that the external fixator was intact and

aligned. An x-ray revealed no change in alignment. He

assessed, however, that Bergeron needed a bone graft.

In October, state agency physician D r . Joseph Cataldo

reviewed Bergeron’s medical records and evaluated her tibia

fracture. D r . Cataldo opined that Bergeron could lift and carry

twenty pounds occasionally and ten pounds frequently; stand and

walk for about six hours in an eight-hour workday; sit for about

six hours in an eight-hour workday; and engage in unlimited

pushing and pulling. He further opined that Bergeron could

climb, balance, stoop, kneel, crouch, and crawl only

occasionally.

On October 1 2 , D r . Billy W . McGough, J r . noted that

Bergeron was showing signs of tibial nonunion and informed her

that she would receive a bone graft sometime in the following

weeks. The bone graft procedure took place on November 2 9 .

Bergeron was released the following day after an overnight stay

at the hospital for pain control and observation.

At a follow-up appointment on December 1 2 , D r . Koval noted

that Bergeron’s pin sites were clean and dry and that her leg

7 was in good alignment. An x-ray showed that Bergeron’s fracture

and hardware were in adequate position.

On January 2 3 , 2007, D r . Koval again noted that Bergeron’s

pin sites were clean and dry, with a minimal amount of drainage

from her most distal pin site. An x-ray showed increased

opacity around the fracture site, indicating that the bone was

healing. Bergeron’s fracture line was still visible but less so

than in previous x-rays. D r . Koval noted that Bergeron was

bearing weight as tolerated with some pain at the fracture site

and advised her to continue to bear weight as tolerated.

At a follow-up appointment in March 2007, D r . Koval noted

that an x-ray showed that the fracture was healing. Bergeron’s

external fixator was removed and she was placed in a walking

boot. D r . Koval advised her to bear weight on her right leg as

tolerated.

On April 2 6 , D r . Koval noted that Bergeron was walking

without the assistance of any devices but still had a limp.

Bergeron complained of a burning or nerve sensation around the

fracture. She was able to squat (though not fully) and jump up

and down with some pain. Bergeron had no pain when her leg was

stressed. An x-ray revealed that the fracture was healing and

in adequate position. D r . Koval advised Bergeron to increase

her activities and desensitize the fracture area by rubbing it

with lotion.

8 On July 9, state agency orthopedic surgeon D r . Avigdor I .

Niv reviewed Bergeron’s medical records and evaluated her tibia

fracture. D r . Niv noted that the medical evidence showed that

Bergeron’s fracture was well on its way to healing nine months

after the injury, and that he expected Bergeron to recuperate to

her pre-injury level of functioning by one year from the date of

the injury. D r . Niv further noted that Bergeron’s other

fractures were non-severe, as evidenced by the lack of

treatment.

On July 2 6 , 2007, D r . Koval noted that Bergeron was

ambulating and bearing full weight. She complained of numbness

and pain in her leg. D r . Koval noted that the pain seemed

mostly muscular in origin, except for around the medial aspect

of her wound, where there seemed to be a possible tumor growing

from a nerve. He noted excellent motion to both plantar and

dorsiflexion, with some tenderness in the medial aspect of the

wound to percussion. She experienced no pain when the leg was

stressed. An x-ray showed that the fracture had healed with

bridging bone present, though the fracture line was still

visible. D r . Koval advised Bergeron to continue to bear weight

as tolerated. He suggested a revision soft tissue surgery, but

Bergeron did not want to consider it at that point.

One year later, in July 2008, Bergeron’s primary care

physician, D r . Glen Adams, completed a medical source statement.

9 Dr. Adams stated that he had seen Bergeron only three times

since he became her primary care provider in May 2008, and thus

could not fully assess her functional capacity. He noted,

however, that she ambulated without difficulty and without

assisted devices in his office. He also opined that Bergeron

could perform the following activities of daily living:

shopping, traveling without a companion, ambulating without

assistance, using standard public transportation, preparing

simple meals, feeding herself, caring for her personal hygiene,

and handling paper/files.

On July 1 0 , 2008, Bergeron broke her controlled substance

agreement with the Dartmouth-Hitchcock Medical Center, as

evidenced by cocaine in her urine. She was on a tapering dose

of methadone at that time. On exam, her gait was normal. It

was noted that she was taking care of her grandmother.

On September 1 9 , 2008, Bergeron sought treatment at the

Coos County Family Health Services, complaining that she felt

weak and dizzy. She also reported back and right leg pain.

Results of neurological and psychological objective exams were

normal. Bergeron was informed that the facility could not

provide treatment with controlled substances until Bergeron

cancelled her controlled substance agreement with the Dartmouth-

Hitchcock Medical Center.

10 On November 5 , an x-ray of Bergeron’s right leg showed old

healed fractures of the right tibia and fibula and moderate soft

tissue deformity. D r . Paul Kamins noted that Bergeron’s right

tibia fracture was fully healed and looked very solid. He also

noted that when Bergeron found out that the x-rays of her leg

showed normal results, she immediately turned her attention to

her lower back pain. A week later, Bergeron reported ongoing

pain and weakness in her leg. She ambulated on her own,

however, with no gait disturbance.

On February 4 , 2009, Bergeron reported chronic leg and back

pain to D r . Adams. She complained that her pain was worse when

she went “snow machining.” On exam, she had a normal gait. Her

medications were continued.

On February 8 , 2010, Bergeron was examined by D r . Gary P.

Francke regarding her leg and back pain. On exam, Bergeron was

in no active distress or obvious pain, stood normally, had

normal sitting posture, and was able to ambulate in the exam

room. Slight weakness of the right calf muscle was noted.

Bergeron displayed a full range of motion in her spine, though

mild soreness was noted with palpation to the back. Bergeron

was also able to bend over and touch her toes and to demonstrate

full flexion, extension, tilling, and twisting of the spine

without any apparent discomfort. D r . Francke opined that

Bergeron had good function in her right leg and back and that

11 she had the ability to do basic work-related activities such as

sitting, standing, walking, lifting, carrying, and bending.

On February 2 3 , 2010, state agency physician D r . Jonathan

Jaffe reviewed Bergeron’s medical records and evaluated her

tibia fracture and chronic lower back pain. D r . Jaffe opined

that Bergeron could lift and carry twenty pounds occasionally

and ten pounds frequently; stand and walk for about six hours in

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

workday; and engage in unlimited pushing and pulling. He

further opined that Bergeron could climb, balance, stoop, kneel,

crouch, and crawl only occasionally.

On April 2 , 2010, Bergeron presented to the Dartmouth-

Hitchcock Spine Center at D r . Ford’s request. On exam, Bergeron

ambulated with a mild limp on her right side. She displayed

lumbar pain with palpation. From a standing position, Bergeron

could flex forward from her waist to her calf, though the

movement increased her lower back pain. Bergeron also had back

pain with extension. Decreased sensation in her right lateral

calf was noted, and the straight-leg-raise test resulted in pain

in her posterior calf. It was noted that Bergeron was not a

surgical candidate.

On April 3 0 , Bergeron had an appointment with D r . Ford

regarding her chronic pain syndrome. She reported that she felt

12 great and that her pain, though present, was controlled. At a

follow-up visit on May 2 7 , Bergeron displayed a normal gait.

On September 1 7 , 2010, D r . Ford completed a Lumbar Spine

RFC Questionnaire. D r . Ford noted that Bergeron suffered from

chronic back and lower right extremity pain that caused reduced

range of motion, abnormal gait, sensory loss, lower back

tenderness, and right lower extremity weakness. D r . Ford stated

that emotional factors contributed to the severity of Bergeron’s

impairments and that her symptoms frequently interfered with

concentration and attention. D r . Ford opined that Bergeron

could only walk one block without rest or severe pain; could

sit, stand, or walk for about two hours total in an eight-hour

workday; would require an at-will sit/stand option; would need

to sit with her legs elevated throughout the day; would need

unscheduled breaks every one-to-two hours; could never lift ten

pounds or more; could only occasionally lift less than ten

pounds; could never crouch, squat, or climb ladders; and could

rarely twist, stoop, or climb stairs. He also opined that

Bergeron would miss more than four days of work per month due to

her impairments, which he noted had existed since June 1 , 2006.

II. STANDARD OF REVIEW

Under

(g), I am authorized to review the

pleadings submitted by the parties and the transcript of the

13 administrative record and enter a judgment affirming, modifying,

or reversing the “final decision” of the Commissioner. My

review is limited to determining whether the ALJ used “the

proper legal standards and found facts [based] upon the proper

quantum of evidence.” Ward v . Comm’r of Soc. Sec.,

(1st Cir. 2000).

The findings of fact made by the ALJ are accorded deference

as long as they are supported by substantial evidence.

Substantial evidence to support factual findings exists “‘if a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support his conclusion.’”

Irlanda Ortiz v . Sec’y of Health & Human Servs.,

(1st Cir. 1991) (per curiam) (quoting Rodriguez v . Sec’y of

Health & Human Servs.,

1 8 , 222 (1st Cir. 1981)). If

the substantial evidence standard is met, factual findings are

conclusive even if the record “arguably could support a

different conclusion.” Id. at 770.

Findings are not conclusive, however, if they are derived

by “ignoring evidence, misapplying the law, or judging matters

entrusted to experts.” Nguyen v . Chater,

1 , 35 (1st

Cir. 1999). The ALJ is responsible for determining issues of

credibility and for drawing inferences from evidence on the

record. Ortiz,

. It is the role of the ALJ, not

the court, to resolve conflicts in the evidence.

14 The ALJ follows a five-step sequential analysis for

determining whether an applicant is disabled.

;

. The applicant bears the burden,

through the first four steps, of proving that his impairments

preclude him from working. Freeman v . Barnhart,

(1st Cir. 2001). At the fifth step, the ALJ determines

whether work that the claimant can d o , despite his impairments,

exists in significant numbers in the national economy and must

produce substantial evidence to support that finding. Seavey v .

Barnhart,

, 5 (1st Cir. 2001).

III. ANALYSIS

Bergeron moves to reverse and remand the Commissioner’s

decision denying her disability claims on three grounds. First,

she argues that the ALJ’s RFC assessment is not supported by

substantial evidence in the record. Second, she contends that

the ALJ erred by determining an RFC that deviated from the state

agency consultant’s RFC without reference to his assessment.

Lastly, she appears to argue that the ALJ gave improper weight

to the opinion of D r . Ford, her treating provider. I address

each challenge below.

A. The ALJ’s RFC Assessment

The ALJ determined that Bergeron was capable of sedentary

work involving only occasional climbing, balancing, stooping,

15 kneeling, crouching, or crawling. Bergeron argues that the

ALJ’s RFC assessment is not supported by the record. I

disagree.

Determination of a claimant’s RFC is an administrative

decision reserved for the Commissioner. See

(d); SSR 96-5p,

, at *2 (July 2 , 1996).

Bergeron is correct that no medical opinion in the record

exactly mirrors the ALJ’s RFC assessment. She fails to

recognize, however, that an ALJ is entitled to “piece together

the relevant medical facts from the findings and opinions of

multiple physicians.” Evangelista v . Sec’y of Health & Human

Servs.,

(1st Cir. 1987). Social Security

regulations make it clear that an RFC assessment need not be

based solely on medical opinions in the record; indeed, the ALJ

must consider “all of the relevant medical and other evidence.”

(a)(3); see SSR 96-5p,

, at *4

(“Even though the adjudicator’s RFC assessment may adopt the

opinions in a medical source statement, they are not the same

thing: A medical source statement is evidence that is submitted

to SSA by an individual’s medical source reflecting the source’s

opinion based on his or her own knowledge, while an RFC

assessment is the adjudicator’s ultimate finding based on a

consideration of this opinion and all the other evidence in the

case record about what an individual can do despite his or her

16 impairment(s).”). As long as the ALJ does not overstep the

bounds of lay competence, she can “render[] common-sense

judgments about functional capacity based on medical findings.”

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

2 7 , 329

(1st Cir. 1990). Here, ample evidence in the record supports

the ALJ’s conclusion that Bergeron was capable of sedentary

work.

The ALJ gave significant weight to the opinion of D r .

Francke, the orthopedic consultant who examined Bergeron. Dr.

Francke opined that Bergeron had good function in her right leg

and back and that she had the ability to do basic work-related

activities such as sitting, standing, walking, lifting,

carrying, and bending. D r . Francke based his opinion on

clinical findings and observations, including that Bergeron was

in no active distress or obvious pain, stood normally, had

normal sitting posture, was able to ambulate in the exam room,

demonstrated only slight weakness of the right calf muscle and

mild soreness with palpation to the back, and displayed a full

range of motion in her spine without any apparent discomfort.

Bergeron faults the ALJ for relying upon D r . Francke’s

opinion because D r . Francke did not articulate his findings in

specific functional terms. Even s o , the ALJ was justified in

treating D r . Francke’s opinion as evidence for the conclusion

that Bergeron retained the capacity to do sedentary work. The

17 regulations define sedentary work as work performed primarily in

a seated position while lifting no more than ten pounds, with

occasional walking and standing.

(a).

Although D r . Francke did not indicate whether Bergeron could

perform such work for eight hours at a time, his opinion that

she could engage in work activities involving sitting, standing,

walking, lifting, carrying, and bending is indicative of her

ability to do sedentary work. Accordingly, the ALJ was entitled

to conclude that D r . Francke’s observations and opinion

supported her RFC assessment.

I need not decide whether D r . Francke’s opinion was

sufficient evidence of Bergeron’s ability to engage in sedentary

work, as Bergeron urges, because the ALJ did not rely solely

upon that opinion in assessing Bergeron’s RFC. She also

considered Bergeron’s treatment records indicating that she made

a steady progress toward recovery. Specifically, the ALJ cited

records indicating that as of July 2007, Bergeron’s tibia

fracture had healed and she was able to ambulate, stand, squat,

jump up and down, and bear full weight on her right leg with

minimal pain. Contrary to Bergeron’s suggestion, the ALJ’s

consideration of the medical evidence did not amount to

interpretation of raw data from the medical record. It was

reasonable for the ALJ to make a common-sense determination as

to Bergeron’s RFC based on relatively normal x-ray results and

18 physical examinations. See Gordils,

(“[I]f the

only medical findings in the record suggested that a claimant

exhibited little in the way of physical impairments, but nowhere

in the record did any physician state in functional terms that

the claimant had the exertional capacity to meet the

requirements of sedentary work, the ALJ would be permitted to

reach that functional conclusion himself.”); Laflamme v . Comm’r

of Soc. Sec., 07-CV-122-PB,

, at *5 (D.N.H. Nov.

2 7 , 2007) (“Because the medical evidence in the record

demonstrates relatively little physical impairment, the ALJ did

not err by drawing his own conclusion about how [the claimant’s]

medical impairments impact her functional capacity.”).

Lastly, the ALJ considered Bergeron’s testimony that was

consistent with the assessment that she retained the RFC for

sedentary work. Specifically, the ALJ noted that Bergeron

admitted that she had performed work in September 2007 involving

lifting a man who weighed 150 pounds. Although Bergeron

resigned from the position due to pain in her leg, the ALJ

reasonably concluded that “the fact that she was able to perform

such physically demanding tasks, even for a short time, shows

that she retains some ability to perform less physically

demanding work.” T r . 419. In fact, Bergeron admitted in her

testimony that she could perform secretarial work but complained

that she could not find a position in her geographical area.

19 The ALJ was permitted to consider Bergeron’s statement in

assessing her RFC. See Graham v . Barnhart, 02-CV-243-PB,

, at *7 (D.N.H. May 9, 2006) (“[The claimant’s]

testimony that she cared for her granddaughter several days a

week supports [the ALJ’s] determination that she retained the

RFC to stand or walk for six hours in an eight-hour day.”).

Because D r . Francke’s opinion, medical evidence, and

Bergeron’s own statement about her functional abilities support

the ALJ’s RFC assessment, the ALJ’s finding that Bergeron could

perform sedentary work is supported by substantial evidence.

B. The ALJ’s Failure to Discuss Dr. Jaffe’s Opinion

Bergeron also argues that the ALJ erroneously failed to

indicate that she had considered the opinion of D r . Jaffe, a

state agency consultant who completed an RFC assessment based on

a review of Bergeron’s medical records. D r . Jaffe opined that

Bergeron was capable of light work with occasional postural

limitations.

Bergeron is correct that an ALJ “must consider and evaluate

any assessment of the [claimant’s] RFC by a State Agency medical

or psychological consultant.” SSR 96-6p,

, at *4

(July 2 , 1996). Here, the ALJ failed to indicate that she

considered D r . Jaffe’s RFC assessment, as she was required to

do. An ALJ’s error, however, does not warrant a remand “if it

will amount to no more than an empty exercise.” Ward v . Comm’r

20 of Soc. Sec.,

5 2 , 656 (1st Cir. 2000). Because D r .

Jaffe opined that Bergeron was not disabled, the outcome of the

ALJ’s disability determination would have been the same even if

the ALJ had afforded his opinion significant weight. In fact,

the only difference would have been a finding that Bergeron was

capable of a greater range of work activity than the ALJ

assessed. Accordingly, no actual harm stemmed from the ALJ’s

failure to consider D r . Jaffe’s opinion and a remand is not

warranted on this basis. 3

C. The ALJ’s Treatment of Dr. Ford’s Opinion

Although Bergeron does not fully develop the argument, she

also contends that the ALJ improperly rejected the opinion of

Dr. Ford, her treating provider. D r . Ford opined that Bergeron

could lift less than ten pounds only occasionally, could sit for

about two hours in an eight-hour workday, and could stand or

walk for two hours in an eight-hour workday. The ALJ gave no

weight to D r . Ford’s opinion. Substantial evidence supports the

ALJ’s decision.

3 Bergeron’s reliance on Fortin v . Astrue, N o . 10-cv-441-JL,

(D.N.H. May 1 8 , 2011), is misguided. In Fortin, the ALJ’s consideration of the unaddressed state agency opinion could have changed the outcome of the disability determination because the consultant opined that the claimant’s functional abilities were more restricted than the ALJ had found. See

Accordingly, a remand of the case to the Commissioner was not necessarily an empty exercise. See

21 A treatment provider’s opinion must be given controlling

weight if it is “well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent

with the other substantial evidence in [the] case record.”

(c)(2). The ALJ “may reject a treating

physician’s opinion as controlling if it is inconsistent with

other substantial evidence in the record, even if that evidence

consists of reports from non-treating doctors.” Coggon v .

Barnhart,

0 , 52 (D. Mass. 2005) (internal

quotation marks and citations omitted); see

(c)(2).

When a treating physician’s opinion is not entitled to

controlling weight, the ALJ determines the amount of weight

based on factors that include the nature and extent of the

physician’s relationship with the applicant, whether the

physician provided evidence in support of the opinion, whether

the opinion is consistent with the record as a whole, and

whether the physician is a specialist in the field.

(c)(1-6). In addition, the ALJ must give “good” reasons

for the weight given to treating physician’s opinions. Id.; see

also Soto-Cedeño v . Astrue,

, 4 (1st Cir. 2010).

Here, the ALJ gave no weight to D r . Ford’s opinion that

Bergeron was limited to a less than sedentary RFC. The ALJ

reasoned that D r . Ford’s assessment was inconsistent with

22 Bergeron’s own statements about her functional capacity and D r .

Francke’s opinion. Specifically, the ALJ noted that D r . Ford

opined that Bergeron was only capable of occasionally lifting

less than ten pounds, whereas the record demonstrated that

Bergeron was “capable of far more,” given that for a short

period of time she was able to do work involving lifting a man

who weighed 150 pounds. As the ALJ noted, moreover, D r . Ford’s

assessment was inconsistent with D r . Francke’s observations and

relatively normal exam findings. Accordingly, the ALJ was

justified in giving no weight to D r . Ford’s opinion.

IV. CONCLUSION

For the foregoing reasons, Bergeron’s motion to reverse the

decision of the Commissioner (Doc. N o . 7 ) is denied. The

Commissioner’s motion to affirm (Doc. N o . 8 ) is granted. The

clerk shall enter judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

June 7 , 2012

cc: D. Lance Tillinghast, Esq. Gretchen Leah Witt, AUSA

23