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Hejazi v. Colvin

United States District Court, District of Massachusetts

July 11, 2014

HASAN ABDELMUNEM HEJAZI, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.

Hasan Hejazi appeals the final decision of the Commissioner of Social Security (the “Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). After consideration of the record before me, which I find provides substantial evidence for the denial, I will affirm the Commissioner’s decision.

I. BACKGROUND

A. Basic Facts

Mr. Hejazi was forty-two years old on September 1, 2008, the date of the onset of his alleged disability. He has completed high school but not attended college. Currently, he lives with his wife and four children and relies on welfare to support himself and his family.

B. Work History

Mr. Hejazi was last employed as a construction worker for his brother in 2008. Prior to his construction work, Mr. Hejazi worked in a butcher shop, until pain in his lower back made it too difficult for him to stand for long periods as required by that occupation. Consequently, he left his job as a butcher and began to help his brother with small construction jobs, such as replacing a window or installing floor tiles, in order to maintain gainful employment.

During his hearing before the administrative law judge, Mr. Hejazi testified that the back pain he was experiencing caused him to cease helping his brother with construction on August 15, 2008. Since then, he has remained unemployed and generally homebound, watching television, sitting on his couch, and lying down throughout the day. Nevertheless, he is able to accompany his wife to the grocery store once a week, assist his children with their nightly homework, and regularly attend religious services. Moreover, Mr. Hejazi was able to travel to Jordan via Frankfurt in December of 2010 and remain there for thirteen months. Although he participated in herbal therapy, he did not seek out professional medical treatment while abroad.

C. Medical History

1. Physical Impairments

a. Evaluations by Dr. Hans Kim

The administrative record includes medical reports authored by Dr. Hans Kim, who has been Mr. Hejazi’s treating physician since June 26, 2002. These reports indicate that Mr. Hejazi has suffered from lumbar and/or thoracic back pain since at least his first meeting with Dr. Kim, and that he currently suffers from lumbar back pain, sciatica, a torn spinal disc, and leg numbness. A lumbar spine MRI conducted on June 23, 2006, at the behest of Dr. Kim, revealed degenerative disc changes at L2-3 and L4-5 levels, with a small right-sided annular tear at L4-5 level. However, there was no evidence of focal disc herniation, spinal stenosis, abnormal enhancement, or intra or parapsinal mass lesions. Nonetheless, to alleviate Mr. Hejazi’s discomfort, Dr. Kim prescribed Vicodin on May 1, 2006, renewing his prescription through 2008. Dr. Kim observed in his progress notes that Mr. Hejazi responded well to the Vicodin treatment with his back pain “improv[ing] considerably.” Indeed, on October 16, 2006, Dr. Kim reported that only an hour after taking Vicodin each morning, Mr. Hejazi’s pain level was reduced by half.

In addition to his prescribing Vicodin, Dr. Kim also recommended to Mr. Hejazi that he begin physical therapy. Mr. Hajezi, however, did not find these sessions particularly helpful, and the physical therapist discharged him for noncompliance in November of 2006.

Throughout the following year, Dr. Kim continued to write in his progress reports that Mr. Hejazi suffered from lower back pain and experienced numbness and weakness in his right leg. Although Mr. Hejazi was able to go grocery shopping and perform other daily chores, lifting anything of moderate weight exacerbated his pain. For example, on June 18, 2007, Mr. Hejazi reported to Dr. Kim that he could not carry his infant son for more than ten minutes and thus found it difficult to care for his children. On April 2, 2008, Mr. Hajezi alerted Dr. Kim to an additional numbness in his left thigh which occurred during sleep and only dissipated once he had rubbed the area and moved around in bed. Dr. Kim wrote that Mr. Hejazi’s symptoms might be due to the compression of the lateral femoral cutaneous nerve or an L5 radiculopathy. Nevertheless, by May 13, 2008, Dr. Kim declared that Mr. Hejazi’s chronic lower back pain was stable and that the numbness in his right and left legs also remained unchanged. Although Mr. Hejazi complained of additional numbness in his hands during sleep, Dr. Kim reassured Mr. Hejazi that such numbness was likely due to compression of the median nerve and could be alleviated by altering his sleep position. On October 14, 2008, Dr. Kim once again documented in his medical report that Mr. Hejazi’s symptoms were stable and being managed well with four Vicodin tablets per day.

Throughout most of 2009, Mr. Hejazi’s symptoms remained unchanged. However, during Mr. Hejazi’s visit to Dr. Kim on October 6, 2009, Dr. Kim noted that Mr. Hejazi had exacerbated “lumbar back pain with persistent deficits of the right leg.” Mr. Hejazi also suffered from “a worsening of the numbness of his right leg in an L5 distribution. In addition, he continue[d] to experience a chronic loss of the right patellar reflex.” In response to deterioration in Mr. Hejazi’s symptoms, Dr. Kim recommended that his patient “avoid prolonged immobilization” and “change his position every 15 to 30 minutes to avoid [the] worsening of his symptoms.” Already using a cane to help with ambulation, Mr. Hejazi was encouraged by Dr. Kim to remain as physically active as possible without aggravating his injuries.

The following April, Mr. Hejazi reported a “severe exacerbation of his symptoms” after entering a store. In addition to taking Vicodin, Dr. Kim proposed a “gentle range of motion exercises and avoidance of prolonged immobilization” in order to alleviate Mr. Hejazi’s discomfort. By May 27, 2010, Mr. Hejazi had improved, with Dr. Kim declaring that he had returned to his “baseline symptoms.” However, after being seated on a long air flight from Jordan, Mr. Hejazi returned to Dr. Kim with exacerbated back pain. Dr. Kim renewed Mr. Hajezi’s Vicodin prescription and also provided crutches for when the pain was most severe. By December 22, 2010, the numbness in Mr. Hajezi’s right leg had gotten worse, and periodic episodes of acute pain confined him to his bed for three or four days at a time. Although Mr. Hejazi reported that the Vicodin tablets alleviated his condition, his wife still had to assist him with his daily activities whenever his symptoms flared up.

Approximately eleven months later, on December 2, 2011, Dr. Kim filled out a physical impairment capacity questionnaire. In this document, he diagnosed Mr. Hejazi with lumbar back pain and sciatica. As a result of these ailments, Dr. Kim stated that Mr. Hejazi could lift less than ten pounds and could stand or sit for less than two hours per work day. In addition, Dr. Kim stated that Mr. Hejazi could only sit for fifteen minutes before having to change position and had to walk around for five minutes at fifteen minute intervals. Dr. Kim estimated that Mr. Hejazi would have to lie down between two and four times per shift and could not be expected to twist, bend, or climb while on the job. Regarding a prognosis, Dr. Kim did not anticipate any improvement. As a result, Dr. Kim concluded that Mr. Hejazi would likely miss more than four days of work per month.

b. Evaluation by Dr. Leslie Caraceni

On January 12, 2010, Dr. Leslie Caraceni, the state agency’s non-examining consultant, filled out an assessment of Mr. Hejazi’s physical and functional capacities. In it, she concluded that Mr. Hejazi could carry up to twenty pounds occasionally and up to ten pounds frequently. She also estimated that Mr. Hejazi could stand or walk for at least two hours and sit for approximately six hours per work day. Additionally, she determined that he had an unlimited ability to push or pull objects, as long as such an activity did not involve lifting anything more than twenty pounds. In contrast to Dr. Kim, she concluded that Mr. Hejazi was occasionally capable of climbing, balancing, stooping, kneeling, crouching, and crawling. Indeed, in Dr. Caraceni’s opinion, Mr. Hejazi’s alleged pain was out of proportion to his MRI and exam findings and consequently only partially credible. On July 14, 2010, Dr. E. Montoya, a state agency reviewing physician, studied the record and agreed with Dr. Caraceni’s set of findings.

D. Administrative Proceedings

On October 22, 2009, Mr. Hejazi filed a Title II application for Disability Insurance Benefits with the Social Security Administration. The following day, October 23, 2009, he filed a Title XVI application for Supplemental Security Income. He claimed to have become disabled on September 1, 2008. Both claims were initially denied, before being denied again upon reconsideration. On August 31, 2010, Mr. Hejazi filed a written request for a hearing.

On April 6, 2012, an administrative law judge (ALJ) held a hearing on Mr. Hejazi’s claims. During that hearing, the ALJ heard testimony from Mr. Hejazi and Ms. Baruch, a vocational expert.

1. Mr. Hejazi’s Testimony

Mr. Hejazi testified regarding his work history, including his work as a butcher from 2003 to 2004, and as a construction worker from 1999 until August of 2008. He explained how the owner of the butcher shop was displeased with his having to sit down every fifteen to twenty minutes throughout the work day because of the pain in his lower back. He also described how the owner’s displeasure prompted him to leave the butcher shop and work for his brother as a construction worker instead. He related how he would refer customers to his brother, assist with the requested project, such as replacing a window, and receive a portion of the profit.

Regarding his physical problems, he characterized them as chronic pain in his lower back, akin to a painful nerve in one’s tooth, as well as numbness in his right leg. He described feeling as though there was nothing between the bones or vertebrae in his back, a sensation that has compelled him to lie motionless in bed, sometimes for several days. He also chronicled how his right leg becomes numb after he has been sitting for a period of time, requiring him to stand up and walk around to be rid of it. In addition, he testified that the numbness in his right leg radiates to his right hand during sleep, and that the pain wakes him up several times throughout the night. He reported that Vicodin, prescribed by his primary care physician, Dr. Kim, has eased these symptoms.

With respect to his physical capabilities, Mr. Hejazi reported that he can only stand for thirty to forty minutes before having to sit for ten to fifteen minutes to rest. He also described how he prefers to lie down instead of sit if he is at home. Mr. Hejazi testified that after about twenty minutes of sitting or lying down, he begins to experience pain from remaining stationary. He also stated that his doctor has urged him not to lift more than five pounds and that he cannot bend or squat. Furthermore, he explained that as a result of his medication, he has become more forgetful and suffers from short-term memory loss.

As to his daily activities, Mr. Hejazi detailed how he has remained largely homebound, lying in bed for extended lengths of time and sitting in the living room. He reported that he takes naps periodically, sometimes reads a book, and occasionally walks around the house. He asserted that these activities help to lessen his chronic pain.

2. Ms. Baruch’s Testimony

Ms. Baruch, a vocational expert, first addressed Mr. Hejazi’s work history. Ms. Baruch classified Mr. Hejazi’s employment as a butcher as heavy and skilled work. She defined Mr. Hejazi’s activity as a construction laborer as very heavy but unskilled.

The ALJ then asked Ms. Baruch whether, given Mr. Hejazi’s age, education, and work experience, and assuming that an individual is limited to the sedentary range of work as that term is defined under the Social Security Act, being permitted a sit-stand option so that every thirty minutes he is able to stand up and stretch, occasionally being able to climb ramps or stairs, but never to climb ladders, ropes or scaffolds, occasionally being able to balance, stoop, kneel, or crouch, but never to crawl, and strictly avoiding concentrated exposure to unprotected heights and hazardous machinery, perhaps even requiring a cane for prolonged ambulation, such an individual would be able to perform any of Mr. Hejazi’s past work. Ms. Baruch replied that such a person would not be able to perform any of Mr. Hejazi’s past work. She also testified, however, that such an individual could perform table work, which is unskilled and sedentary. In addition, she stated that such an individual could perform bench hand work or be employed as a surveillance systems operator, which is a sedentary and unskilled occupation.

The ALJ then inquired whether a person limited to simple routine tasks, occasional decision-making, and occasional changes in the work setting, would be qualified for the jobs previously listed by Ms. Baruch. Ms. Baruch answered in the affirmative. Ms. Baruch also reported, in response to a question from the ALJ, that one absenteeism a month by an employee is “kind of borderline” for an employer. She indicated that if there was a pattern and the employee was absent for more than one day per month, the employer would typically let the employee go.

Next, Ms. Ghazi, Mr. Hejazi’s attorney, asked whether, under the previous hypothetical posed by the judge, the jobs would still be available to an individual if the individual also needed unscheduled breaks every fifteen to thirty minutes, needed to lie down two to four times per shift, and would be off task greater than twenty-five percent of the work day. Ms. Baruch responded that no jobs would be available under such conditions.

E. The Decision of the Administrative Law Judge

The ALJ reviewing the case issued a decision on April 19, 2012. She found that Mr. Hejazi had not engaged in gainful activity since September 1, 2008, the alleged onset date of his disability, and that he had met the insured status requirements of the Social Security Act through December 31, 2013. She determined that Mr. Hejazi had remained insured under the Social Security Act through December 31, 2013, but that he had not been under a disability within the meaning of the Social Security Act from September 1, 2008, through the date of her decision.

The ALJ found that Mr. Hejazi’s degenerative disc disease qualified as “severe” because it “causes significant limitation in the claimant’s ability to perform basic work activities.” However, she determined that Mr. Hejazi’s impairment did not meet or medically equal the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

The ALJ found that, based upon the record of Mr. Hejazi’s degenerative disc disease, Mr. Hejazi still had the residual functional capacity to perform sedentary work as defined in 20 C.F.R 404.1567(a) and 416.967(a), except that he requires a sit-stand option with the ability to get up every thirty minutes and stretch. The ALJ concluded that Mr. Hejazi is able to occasionally climb ramps or stairs, but never climb ladders, ropes, or scaffolds, is able to occasionally balance, stoop, kneel, and crouch but never crawl. She determined that he must avoid concentrated exposure to unprotected heights and hazardous machinery and may require a cane for prolonged ambulation. Furthermore, she concluded that he is capable of simple routine tasks with occasional decision-making and occasional changes in the work setting.

The ALJ described Mr. Hejazi’s symptoms and physical activity in accordance with his testimony: that he suffers from degenerative disc disease and that he experiences pain and numbness in his back and right leg. He asserts that after prolonged sitting he needs to stand and walk. He also states that at night his pain radiates to his right hand and leg. He declares that he is able to stand for no more than thirty to forty minutes, before needing to rest for approximately ten to fifteen minutes. Additionally, he had visited Jordan in December of 2010 and stayed there for around thirteen months. He also reports that he watches television during the day and uses public transportation. And yet, he further contends that he is unable to sustain substantial gainful activity.

The ALJ concluded that Mr. Hejazi’s medically determinable impairment could reasonably be expected to cause the alleged symptoms but that Mr. Hejazi’s statements concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent that they are inconsistent with her residual functional capacity assessment.

To justify her determination that Mr. Hejazi’s functioning is not significantly impaired, the ALJ cited Mr. Hejazi’s report that during the period under consideration, he was able to give his children a ride to school, help his children with their homework, walk around the block, go grocery shopping once per week, and attend religious services. Moreover, Mr. Hejazi chose to endure a long flight to Jordan in December of 2010, during which he would have had to be seated for extended periods. Although he remained in Jordan until March of 2012, there are no records that he received treatment of any kind while abroad. The ALJ also noted that Mr. Hejazi’s treatment while home in the United States has been relatively limited. He has not required any surgical procedures and the record does not contain any pain management records. Furthermore, the record contains no treatment evidence since December of 2010. The ALJ also made reference to Dr. Kim’s notes in which the doctor stated that Mr. Hejazi was responding well to treatment. Dr. Kim reported that Mr. Hejazi’s symptoms remained generally stable and that Vicodin was effective. In light of Dr. Kim’s documentation, as well as Mr. Hejazi’s own description of his activities, the ALJ found that Mr. Hejazi’s alleged severity of his symptoms was inconsistent with the record, and thus Mr. Hejazi was not fully credible.

With respect to the opinion evidence, the ALJ granted limited weight to the opinion of Dr. Kim. The ALJ found Dr. Kim’s assessment of Mr. Hejazi’s functional capacity inconsistent with the record as a whole, and more specifically, inconsistent with his own treatment notes, which indicate stability of symptoms and positive response to medication. The ALJ pointed out that Dr. Kim’s determination that Mr. Hejazi cannot be seated for more than two hours is wholly inconsistent with Mr. Hejazi’s long flight to Jordan. In addition, Dr. Kim’s evaluation conflicts with Mr. Hejazi’s ability to drive his children to school, participate in religious services, and assist his children with homework.

As to Dr. Caraceni, the ALJ granted some weight to her opinion. The ALJ found that Dr. Caraceni’s assessment of Mr. Hejazi was generally consistent with Mr. Hejazi’s ability to watch television for prolonged periods, take public transportation and go grocery shopping on a regular basis. In addition, the ALJ noted that Dr. Caraceni’s evaluation conforms to Mr. Hejazi’s relatively positive response to pain medication.

Despite the skepticism expressed regarding the purported constraints on Mr. Hejazi’s work-related capacity, the ALJ was willing to give Mr. Hejazi the benefit of the doubt as to his subjective complaints. Therefore, she reduced Mr. Hejazi’s residual functioning capacity to the less than sedentary level. In other words, she found that Mr. Hejazi is able to perform work activities not inconsistent with a reduced range of sedentary work.

Based upon her determination of Mr. Hejazi’s residual functional capacity as well as upon Ms. Baruch’s testimony as a vocational expert, the ALJ concluded that Mr. Hejazi is able to perform the requirements of representative occupations such as table work, D.O.T. 739.687-182 (unskilled work performed at the sedentary level with 6, 960 jobs available in Massachusetts and 410, 750 available nationally), bench hand work, D.O.T. 715.684-026 (unskilled work performed at the sedentary level with 2, 230 jobs available in Massachusetts and 239, 350 jobs available nationally), and bench hand work, D.O.T. 379.367-010 (unskilled work performed at the sedentary level with 1, 080 jobs available in Massachusetts and 81, 410 jobs available nationally). As a consequence, the ALJ found that Mr. Hejazi is capable of making a successful adjustment to other work that exists in significant numbers in the national economy and that a finding of “not disabled” is appropriate.

On March 15, 2013, the Appeals Council of the Office of Disability Adjudication and Review denied Mr. Hejazi’s request for review, which exhausted his administrative remedies and made this case ripe for review by a district court under 42 U.S.C. 405(g) as the decision of the Commissioner. Mr. Hejazi has moved for an order reversing the decision. The defendant has moved for an order affirming.

II. STATUTORY FRAMEWORK

A. Standard of Review

Under the Social Security Act, this court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Review is “limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).

Although I review questions of law de novo, Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001), the Social Security Act specifically provides that the Commissioner’s findings must be treated as conclusive “if supported by substantial evidence.” 42 U.S.C. § 405(g). Substantial evidence exists only “if a reasonable mind, reviewing the evidence in the record as whole, could accept it as adequate to support [the Commissioner’s] conclusion.” Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). Since “it is the responsibility of the [Commissioner] to determine issues of credibility and to draw inferences from the record evidence, ” Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991), I must affirm the Commissioner’s denial “even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence.” Guyton v. Apfel, 20 F.Supp.2d 156, 161 (D. Mass. 1998) (quoting Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987). However, the Commissioner’s factual findings are not conclusive if reached by “ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen, 172 F.3d at 35.

B. Standard for Entitlement to DIB and SSI

The issue before me is whether Mr. Hejazi is “disabled” as defined by the Social Security Act and therefore eligible to receive DIB and SSI benefits. An individual is considered disabled if he is “[unable] to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (defining disability for DIB); 42 U.S.C. § 382c(a)(3)(A)(defining disability for SSI).

For an individual to be considered disabled for purposes of receiving benefits, his impairment must be “of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A) (DIB); 42 U.S.C. §1382c(a)(3)(B) (SSI).

The Commissioner evaluates a claimant’s disability by following a “five-step sequential evaluation process” outlined in 20 C.F.R. §404.1520. 20 C.F.R. §404.1520(a)(1). If the Commissioner determines that the claimant cannot meet his burden of proof at any one of the first four steps, the Commissioner may find the claimant not disabled and terminate the disability determination process at that step. 20 C.F.R. § 404.1520(a)(4). Once the claimant has satisfied the first four steps, the burden shifts to the Commissioner, who must provide evidence of specific jobs in the national economy that the applicant can perform. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner is unable to find specific jobs suited to the capacities of the claimant, he will find the claimant disabled. Id.

Under the first step, a claimant is not disabled if he is engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). The second step provides that the claimant is not disabled if he lacks “a severe medically determinable physical or mental impairment that meets the duration requirement . . . or a combination of impairments that is severe and meets the duration requirement.” 20 C.F.R. § 404.1520(a)(4)(ii). As to the third step, the claimant is considered disabled if his impairment not only “meets or equals” one specifically listed in the regulations but also the duration requirement. 20 C.F.R. § 404.1520(a)(4)(iii). To be deemed disabled under the fourth step, the claimant must demonstrate that he cannot perform his past relevant work under the Commissioner’s residual functional capacity determination. 20 C.F.R. § 404.1520(a)(4)(iv). Once the burden shifts to the Commissioner in the fifth step, the Commissioner considers the claimant’s residual functional capacity, as well as his age, education, and work experience, in order to see if he can adjust to other work. If the claimant cannot adjust to other work, the Commissioner will find him disabled for purposes of the Social Security Act. 20 C.F.R. § 404.1520(a)(4)(v).

III. ANALYSIS

Mr. Hejazi claims that the Social Security Commissioner made a series of errors in evaluating his claim, and therefore that the denial of DIB and SSI should be reversed and remanded for further consideration. First, Mr. Hejazi claims that the ALJ erred by not according significant weight to the opinion of his treating physician, Dr. Hans Kim. Second, Mr. Hejazi claims that the ALJ’s residual functional capacity assessment is not supported by substantial evidence. Third, Mr. Hejazi claims that the ALJ failed to properly consider the so-called “Avery factors” in her credibility assessment. Fourth, Mr. Hejazi claims that the ALJ improperly weighed the medical evidence regarding his physical impairments. Each of these claims will be addressed in turn.

A. Inappropriate Weight Given to Opinion of Treating Physician

Mr. Hejazi claims that the ALJ erred by not according Dr. Kim’s opinion significant weight; specifically, he claims that the ALJ should not have granted greater weight to the opinion of Dr. Caraceni, a non-examining physician, than to the opinion of Dr. Kim, a treating physician.

The ALJ should generally give the opinion testimony of a treating physician more weight than that of a non-treating physician, since treating physicians are the “medical professionals most able to provide a detailed, longitudinal picture [of the claimant’s] medical impairments.” 20 C.F.R. §404.1527(c)(2). Indeed, the opinion of the treating physician is entitled to controlling weight, but only if “well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence” in the case. Id. “The ALJ is not required automatically to give controlling weight to any ‘treating’ doctor’s report, denominated as such . . . . ‘Controlling weight’ may be assigned if the report meets the specified qualifications [listed in the C.F.R.] and is not inconsistent with other substantial evidence.” Rohrberg v. Apfel, 26 F.Supp.2d 303, 311 (D. Mass. 1998) (quoting Rivera v. Sec’y of Health & Human Servs., 986 F.2d 1407, No. 912-1896, 1993 WL 40850, at *3 (1st Cir.) (table decision)).

In this case, the ALJ granted little weight to the opinion of Dr. Kim because she reasonably found it inconsistent with other substantive evidence in the record. In particular, the ALJ referred to Mr. Hejazi’s lumbar spine MRI, which, although exposing disc degenerative changes and a right-sided annular tear, did not reveal any focal disc herniation, spinal stenosis, abnormal enhancement, or intra or paraspinal mass lesions. The ALJ also noted that Dr. Kim’s medical reports indicated that the pain from Mr. Hejazi’s degenerative disc disease was managed well with Vicodin and that his symptoms were stable. Furthermore, the ALJ questioned how Mr. Hejazi could endure the long flight to Jordan in December of 2010, as well as drive his children to school, help his children with their homework, and attend religious services, if he was as debilitated as Dr. Kim claimed. Dr. Kim opined that Mr. Hejazi could sit for less than two hours per day and must walk around every fifteen minutes. And yet, Mr. Hejazi was obligated to sit for perhaps as much as seven hours on his flight to Frankfurt from Boston on the way to Jordan. In light of the foregoing, it was reasonable of the ALJ to find that Dr. Kim’s opinion was disputed by substantial evidence and thus not entitled to significant, much less controlling, weight.

Additionally, “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 the courts, ” to decide. Rodriguez, 647 F.2d at 222. Dr. Caraceni, in contrast to Dr. Kim, estimated that Mr. Hejazi could sit for about six hours in an eight-hour workday. Her evaluation is consistent with not only with Mr. Hejazi’s 2006 lumbar MRI, his positive response to medication, and his symptoms’ stability, but also his ability to travel to Jordan, attend religious services, and take care of his children. It is also consistent with Mr. Hejazi’s admission that he watches television for prolonged periods, takes public transportation, and goes grocery shopping on a regular basis. Consequently, the ALJ did not act improperly by according Dr. Caraceni’s opinion more weight than Dr. Kim’s. In contrast to Nguyen v. Carter, where the First Circuit faulted the ALJ for “ignor[ing] medical evidence or substitut[ing] his own views for uncontroverted medical opinion, ” the ALJ in this case relied upon Dr. Caraceni’s evaluation, in addition to other evidence, to generally discount Dr. Kim’s opinion. Nguyen, 172 F.3d at 35.

Moreover, the ALJ gave “good reasons” for according little weight to Dr. Kim’s opinion, as is required in 20 C.F.R. §404.1527(c)(2). Guyton, 20 F.Supp.2d at 167 (quoting 20 C.F.R. §404.1527(d)(2)[20 C.F.R. §404.1527(c)(2)]). As discussed above, the ALJ noted the lumbar MRI, Dr. Kim’s medical notes, Mr. Hejazi’s testimony regarding his daily activities, including his trip to Jordan, as well as Dr. Caraceni’s medical opinion, as reasons why she refused to grant Dr. Kim’s opinion anything greater than little weight.

Mr. Hejazi, however, still maintains that the ALJ’s assessment of Dr. Kim’s opinion is improper, insofar as it allegedly fails to take note of the six factors outlined in 20 C.F.R. §404.1527(c). 20 C.F.R. §404.1527(c). Under these six factors, the ALJ must consider: “1) the length of the treatment relationship and the frequency of examination; 2) the nature and extent of the treatment relationship; 3) the relevant evidence in support of the medical opinion; 4) the consistency of the medical opinions reflected in the record as a whole; 5) whether the medical provider is a specialist in the area in which he renders his opinion; and 6) other factors which tend to support or contradict the opinion.” Guyton, 20 F.Supp.2d at 167. Although the ALJ did not explicitly address these factors in that form, it is clear from her decision that they were properly considered. She recounts the particular dates establishing the length and frequency of Dr. Kim’s treatment of Mr. Hejazi, acknowledges that there is no evidence of Dr. Kim treating Mr. Hejazi since December of 2010, and discusses the inconsistencies of Dr. Kim’s opinion with Dr. Caraceni’s. Accordingly, there is no error in the ALJ’s decision to grant Dr. Kim’s opinion little weight.

B. Lack of Substantial Support for ALJ’s Residual Functional Capacity Determination

Mr. Hejazi claims that the ALJ’s residual functional capacity determination is not supported by substantial evidence. He claims that the ALJ improperly came to her residual functional capacity determination by relying on her own lay opinion, rather than that of a medical expert.

As discussed earlier, this case is distinguishable from Nguyen v. Carter, in which the First Circuit criticized the ALJ for “ignor[ing] medical or substitute[ing] his own views for uncontroverted medical opinion.” Nguyen, 172 F.3d at 35. In Nguyen, the First Circuit vacated the judgment of the district court and remanded the case to the ALJ, reasoning that “the ALJ was simply not qualified to interpret raw medical data in functional terms and no medical opinion supported the determination.” Id. In contrast to the circumstances of Nguyen, the ALJ reviewing Mr. Hejazi’s claims relied upon the medical opinion of Dr. Caraceni, who concluded, in contrast to Dr. Kim, that Mr. Hejazi’s claims of disability were not fully credible. Even if the ALJ did not fully embrace Dr. Caraceni’s opinion, the First Circuit has held that the ALJ may “piece together the relevant medical facts from the findings and opinions of multiple physicians.” Evangelista v. Sec’y of Health & Human Servs., 826 F.2d 136, 144 (1st Cir. 1987). Indeed, the First Circuit has explicitly rejected “an ironclad rule” that “there must always be some super-evaluator, a single physician who gives the factfinder an overview of the entire case.” Id. Consequently, I decline to vacate the ALJ’s judgment on these grounds.

C. Failure to Consider Appropriate Factors When Making Credibility Determination

An ALJ makes a proper credibility determination when such a determination is “supported by substantial evidence and the ALJ . . . makes[s] specific findings as to the relevant evidence [s]he considered in determining to disbelieve the applicant.” Da Rosa v. Sec’y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir. 1986). “The credibility determination by the ALJ, who observed the claimant, evaluated his demeanor, and considered how that testimony fit in with the rest of the evidence, is entitled to deference, especially when supported by specific findings.” Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987). If the ALJ finds that a claimant’s allegations of disability are not credible, the ALJ must gather “detailed descriptions of claimant’s daily activities, functional restrictions, medication and other treatment for pain, frequency and duration of pain, and precipitating and aggravating factors.” Baez Velez v. Sec’y of Health & Human Servs., 993 F.2d 1530, 1993 WL 177139 at *6 (1st Cir. 1993). Known as the “Avery factors, ” these descriptions must be carefully considered by the ALJ before she declares the claimant not to be credible. See Avery v. Sec’y of Health & Human Servs., 797 F.2d 19, 23 (1st Cir. 1986).

The record here demonstrates that Mr. Hejazi’s complaint alleging the ALJ’s failure to consider the “Avery factors” is without foundation. The transcript from the oral hearing clearly shows the ALJ asking Mr. Hejazi about his daily activities, the severity of his pain, what medication he takes, his functional limitations, and factors which aggravate his symptoms. Relying upon the resulting testimony, the ALJ found that although Mr. Hejazi’s medically determinable impairment could reasonably be expected to cause the alleged symptoms, his statements concerning the intensity, persistence and limiting effects of these symptoms were not credible.

To explain why Mr. Hejazi was not credible, the ALJ cited Mr. Hejazi’s daily activities of giving his children a ride to school, assisting his children with their homework, walking around the block, attending religious services, and going grocery shopping. She also referenced Mr. Hejazi’s long flight to Jordan, as well as his lack of medical treatment while abroad, as factors undermining his credibility. These specific findings stand in sharp contrast to the complete lack of support criticized in Rohrberg v. Apfel. There, the court held the credibility determination to be improper because the ALJ “[had] made no reference to . . . demeanor, evasiveness, or combativeness, nor to any other observations indicating a basis for discrediting . . . testimony, such as contrary medical evidence or observation of activities which might reflect negatively on . . . credibility.” Rohrberg, 26 F.Supp.2d at 310 (emphasis added). Here, the ALJ, far from committing the same error, cited several of Mr. Hejazi’s activities which led her to determine that he was not credible. Moreover, she noted Dr. Kim’s medical reports which indicated that Mr. Hejazi was responding well to treatment and that Vicodin was effective. Accordingly, I find the ALJ’s credibility determination to be supported by substantial evidence and entitled to deference by this court.

D. Improper Weighing of the Medical Evidence Relating to Mr. Hejazi’s Physical Impairments

Mr. Hejazi claims that the ALJ wrongly failed to classify the Modified Oswestry Disability Index (MODI) as a medical opinion. As a result, Mr. Hejazi claims that the MODI was not given proper weight in the ALJ’s disability determination.

The problem with this argument is that the MODI is not a medical opinion at all. Rather, it is a questionnaire which the patient himself fills out regarding his pain intensity, as well as his ability to walk, sit, stand, and lift items, among other things. J.C. Fairbank & P.B. Pynsent, Oswestry Low Back Pain Disability Questionnaire, 25(22) Spine 2940-2953 (2000), www.workcover.com/documents.ashx?id=1295. No more than a vehicle for patients to self-report their symptoms, the MODI was properly excluded from being classified as a medical opinion. The ALJ had only an obligation to consider the MODI questionnaire as one part of the evidentiary record and she did so. The treatment of the MODI questionnaire does not provide grounds to reverse the Commissioner’s decision.

IV. CONCLUSION

For the reasons set forth above, I GRANT the Commissioner’s motion to affirm (Dkt. 18) and DENY the claimant’s motion for an order reversing that decision (Dkt. 14).


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