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Davila v. Berryhill

United States District Court, D. Massachusetts

December 11, 2018

ISRAEL LOPEZ DAVILA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.

         On November 9, 2017, Israel Lopez Davila (“Lopez”) filed an appeal of the final decision by the Acting Commissioner of the Social Security Administration (“Commissioner”) denying his application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits. [ECF No. 1]. Lopez claims that he is disabled as a result of cardiomyopathy, chronic heart failure, obesity, knee osteoarthritis, sleep apnea, anxiety and depression. [ECF No. 1 ¶ 7]. He challenged the Commissioner's denial of benefits on five grounds: (1) that the administrative law judge (“ALJ”) failed to give appropriate weight to the treating source opinions; (2) that the ALJ erred in finding that Lopez's knee pain and sleep apnea were not severe impairments; (3) that the ALJ failed to properly consider the effects of his obesity; (4) that the ALJ failed to provide an adequate explanation for finding that Lopez did not meet a listing; and (5) that the Appeals Council committed egregious error when declining to consider new evidence. [ECF No. 17 at 12-20].

         On November 6, 2018, Magistrate Judge Boal filed a Report and Recommendation (“R&R”), in which she found that the ALJ erred in finding that Lopez's cardiac condition was not a listed impairment because some of the evidence indicated that Lopez may have met a listed impairment for chronic heart failure and the ALJ did not explain his conclusion that the listing was not met. [ECF No. 28 at 26-30]. In light of that finding, she recommended that the Court grant Lopez's motion for an order reversing the Commissioner, deny the Commissioner's motion to affirm, and remand the case pursuant to 42 U.S.C. § 405(g) for further findings and/or proceedings. [ECF No. 28 at 33-34]. Judge Boal rejected Lopez's four other grounds for appeal.

         On November 20, 2018, Lopez filed an objection to Judge Boal's conclusions that there was no error in the weight that the ALJ gave the treating source opinions and that the ALJ adequately supported his conclusion that Lopez's osteoarthritis was not a severe impairment. Lopez has not specifically challenged the R&R's summary of the evidence, which the Court has reviewed and concludes is accurate. [ECF No. 29]. The Court presumes familiarity with the evidence and will forgo summarizing it anew here. The Court is required to make a de novo determination as to those portions of the R&R to which Lopez has objected and may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see Fed. R. Civ. 72(b)(3). The Court adopts the R&R to the extent that neither party has objected to it, and, following de novo review, accepts the conclusions to which Lopez objects for the reasons explained below.

         I. DISCUSSION

         A. The ALJ Did Not Err in Giving Treating Source Opinions Little Weight

         Lopez challenges the ALJ's decision to give the opinions of two of his treating physicians, Dr. Kumar and Dr. Quintero, little weight. The ALJ found:

Dr. Kumar, in May 2016, indicated the claimant could lift/carry less than ten pounds. He could stand and/or walk for less than two hours in an eight-hour day.
He could sit for less than about six hours in an eight-hour day. The claimant was limited in the use of his upper extremities with pushing and pulling. Dr. Kumar stated that the claimant had severe cardiomyopathy, hypertension and implantable cardioverter defibrillator placement and could not exert without having symptoms of shortness of breath and chest pain. The doctor indicated the claimant did not experience environmental limitations. Further, Dr. Kumar stated that the claimant could not perform activities of daily living without his wife's assistance due to his severe cardiomyopathy. Although the claimant would have this lifelong condition, his prognosis could not be established with accuracy. (Ex. l1F)
. . . Dr. Quintero, assessed heart failure systolic and obesity. The claimant was estimated to lift/carry ten pounds. He could stand and/or walk at least two hours in an eight-hour day and sit less than about six hours in an eight-hour day. He was unlimited in the ability to push/pull, other than any limitations for lift/carry. The clinician wrote that any heavy lifting, pushing and pulling could increase blood pressure impairing efficient pumping from the heart. The claimant could occasionally climb, balance, stoop, kneel, crouch and crawl. (Ex. 12F)
After careful consideration of Dr. Kumar's and Dr. Quintero's opinions assessing the claimant at a less than sedentary exertion, I give them little weight, as they are inconsistent with other substantial evidence in the record, and not well-supported by the medical evidence which demonstrates that the claimant is limited only to the extent outlined in the residual functional capacity assessment above. Specifically, I find that these opinions are inconsistent with the claimant's activities of daily living, including working at the medium to heavy exertions, taking public transportation regularly, going to the gym and visiting with his brothers as well as his positive response to treatment. In addition, Dr. Kumar's opinions are outside her area of expertise, as a primary care provider and not a cardiologist.

ECF No. 13 (“Record”) at 102.

         Lopez challenges the ALJ's decision to give Dr. Kumar and Dr. Quintero's opinions little weight, claiming that the length, nature, and extent of his treatment relationships with them and Dr. Quintero's specialization as a cardiologist support more than “little weight.” [ECF No. 17 at 19].

         The First Circuit has explained that “a treating source's opinion on the question of the severity of an impairment will be given controlling weight so long as it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.'” Polanco-Quinones v. Astrue, 477 Fed.Appx. 745, 746 (1st Cir. 2012) (quoting 20 C.F.R. § 404.1527(d)(2)). An ALJ is “not required to accept the conclusions of claimant's treating physicians on the ultimate issue of disability, ” and may rely on other substantial evidence in the record to discount treating physicians' conclusions. See Arroyo v. Secretary of Health & Human Servs., 932 F.2d 82, 89 (1st Cir. 1991); see also Tremblay v. Secretary of Health & Human Servs., 676 F.2d 11, 13 (1st Cir. 1982) (“We have repeatedly refused to adopt any per se rule” that “the treating physician's opinion should have been given greater weight than the consulting physician's.”). “It is within the Secretary's domain to give greater weight to the testimony and reports of medical experts who are commissioned by the Secretary.” Keating v. Secretary of Health & Human Servs., ...


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