United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
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].
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
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.
The ALJ Did Not Err in Giving Treating Source Opinions Little
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.
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].
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.,