United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.
February 13, 2018, Annie Dias (“Dias”) filed an
appeal of the final decision by the Acting Commissioner of
the Social Security Administration
(“Commissioner”) denying her application for
disability insurance benefits. [ECF No. 1]. Dias claims that
she has mental disabilities, including generalized anxiety
disorder and major depressive disorder, and physical
disabilities, from a stroke, degenerative disc disease, and
carpal tunnel. [ECF No. 19 at 3]. Dias challenges the
Commissioner’s denial of benefits on five grounds: (1)
that the Appeals Council (“Council”) failed to
recognize her anxiety disorder as a severe impairment; (2)
that the administrative law judge (“ALJ”) and
Council decisions failed to consider more recent post-stroke
records; and (3) that the ALJ and Council failed to address a
portion of a 2016 report from the State agency consultant,
Dr. Vladimir Yufit (“2016 Yufit Report”), which
supported her argument for a reduced residual functional
capacity. [Id. at 4–13].
September 3, 2019, Magistrate Judge Cabell filed a Report and
Recommendation (“R&R”), in which he (1) found
no basis to conclude that the Council’s decision erred
in failing to list plaintiff’s anxiety as a severe
impairment and, in the alternative, found that any error was
harmless; (2) determined that the ALJ and Council did have
access to the post-stroke records, as both decisions
summarize or reference them; and (3) found that the ALJ had
failed to indicate the weight given to certain opinions by
Dr. Yufit that would have supported Dias’ argument.
[ECF No. 28 at 17–24]. He therefore recommended that
the Court grant Dias’ motion for an order reversing the
Commissioner, deny the Commissioner’s motion to affirm,
and remand the case for further proceedings on Dias’
third argument. [Id. at 29].
September 12, 2019, the Commissioner filed an objection to
Magistrate Judge Cabell’s conclusion that the ALJ and
Council did not specifically state whether they credited some
functional limitations contained in the 2016 Yufit Report.
[ECF No. 30]. According to the Commissioner, because the ALJ
actually discussed some of the limitations in question, it
should be inferred that she reviewed the 2016 Yufit Report.
[Id. at 1]. Dias responded on September 19, 2019.
[ECF No. 31].
Court presumes familiarity with the evidence and will not
summarize it anew here. The Court is required to make a
de novo determination as to those portions of the
R&R that the Commissioner objects to 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)(C); see
Fed.R.Civ.P. 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 the
Commissioner objects for the reasons explained below.
It would not be “useless formality” to remand for
a discussion of the unaddressed portions of the 2016
Commissioner first argues that, given the compelling evidence
that Dias was not disabled, the Court should not remand in
order to address the portions of the 2016 Yufit Report that
would seem to support Dias’ claim of disability. [ECF
No. 30 at 2–6]. According to the Commissioner, even if
the ALJ failed to consider the relevant portions of the
report, the report is not significantly more favorable to
Dias than the portions that were discussed. [Id. at
R&R takes issue with the ALJ’s decision for two
reasons. First, the ALJ and Council failed to discuss a
portion of the 2016 Yufit Report that supported Dias’
claim of disability. [ECF No. 28 at 22–27].
Specifically, Dr. Yufit determined:
[Dias] can sit no more than 20 minutes, stand no longer than
20 minutes, and can walk no longer than 20 minutes at a time.
She can totally sit during the eight hour day about two
hours. She can stand about two hours and she can walk about
two hours over the eight hour day. Intermittently she can
sit, stand and walk six hours . . . . She has difficulty with
some limitation with reaching overhead, especially with the
right hand, with handling objects, fingering, feeling,
pushing and pulling with both hands. . . . [S]he can climb
stairs and ramps occasionally [but] not  ladders and
scaffolds. She has some problem with balance. She cannot stop
. . . . She cannot work on unprotected heights and cannot
work with moving machinery parts. . . . She occasionally can
operate a motor vehicle. She drives but she takes
painkillers. She has a problem working with humidity and
wetness, cannot work with dust, odors, fumes. . . . She
cannot work in extreme cold, extreme heat, or vibration. She
cannot tolerate noise. She can work in a quiet environment.
[Id. at 25]. The ALJ also did not present the
vocational expert with a hypothetical that corresponded with
the limitations put forth in the 2016 Yufit Report.
[Id. at 27]. Second, the R&R notes that the ALJ
failed to assign weight to certain supportive testimony from
Dr. Sokol, who conducted a psychodiagnostics interview and
subsequent assessments between 2014 and 2016. [Id.
at 6, 27–28].
Commissioner is correct that “an [ALJ] is not required
to address specifically every piece of medical evidence that
accords with or is inconsistent with his or her
conclusions.” Tassel v. Astrue, 882 F.Supp.2d
143, 148 (D. Me. 2012). For example, the ALJ appropriately
explained the determination not to give controlling weight to
the opinions of Dias’ treating physician, because the
opinions that supported Dias’ claim of disability were
“contradictory to [the treating physician’s own]
treating records from 2010–2016.” [ECF No. 16-2
at 27]. Specifically, Dias’ treating physician
determined that Dias could not perform sedentary work,
despite normal or mostly normal physical examinations during
the relevant period. [Id.].
of fact made by State agency medical and psychological
consultants . . . must be treated as expert opinion evidence
of nonexamining sources at the administrative law judge and
Appeals Council levels of administrative review.” SSR
96-6p, 1996 WL 374180, at *1 (July 2, 1996). Therefore,
“[ALJs] and the Appeals Council may not ignore these
opinions and must explain the weight given to these opinions
in their decisions.” Id.
in this case discussed certain findings from the record that
supported a determination that Dias was not disabled,
see [ECF No. 16-2 at 26–27], but did not
explain why those findings were not afforded greater weight
in the Step 4 determination. [Id.]. This included
the 2016 Yufit Report, as well as portions of Dr.
Sokol’s report that would have supported Dias’
claim of disability. “Failing to address such evidence
makes it ‘impossible [for a court] to determine whether
[the ALJ] merely discredited that assessment or, in fact,
overlooked that piece of  evidence most supportive of [the
claimant’s] claim.’” Ross v.
Astrue, No. 09-cv-11392, 2011 WL 2110217, at *8 (D.