I. A. v. Commissioner of the Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

I.A., )

)

Plaintiff, ) Civil Action No.

) 23-10170-FDS

v. )

)

COMMISSIONER OF THE SOCIAL )

SECURITY ADMINISTRATION, )

)

Defendant. )

_______________________________________)

MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR

JUDGMENT ON THE PLEADINGS AND DEFENDANT’S MOTION FOR ORDER

AFFIRMING THE DECISION OF THE COMMISSIONER

SAYLOR, C.J.

This is an appeal of the final decision of the Commissioner of the Social Security

Administration denying the application of plaintiff I.A. for Social Security Disability benefits.

The Commissioner determined that I.A. was not disabled within the meaning of the Social

Security Act. Plaintiff appeals the Commissioner’s denial of her claim on the ground that the

decision is not supported by substantial evidence as required by 42 U.S.C. § 405(g).

Specifically, I.A. contends that the commissioner erred by improperly evaluating the medical

opinions of the state agency physicians and failing to address the moderate limitations assessed

by one of these physicians.

Plaintiff has moved for judgment on the pleadings and defendant has moved for an order

affirming the decision of the Commissioner. For the reasons stated below, the Commissioner’s

decision will be affirmed and plaintiff’s motion will be denied.

Background

The following is a summary of the evidence as set forth in the administrative record.

A. Educational and Occupational History

I.A. was born on March 14, 1963, and is currently 60 years old. (A.R. 88). She was 55

years old at the alleged onset of her disability on October 20, 2018. (Id. at 312).

I.A. has a college degree. (Id. at 88). She last worked in 2019 as a private caregiver. (Id.

at 357). In 2018, she was a Medicaid specialist. (Id. at 357). From 2017-2018, she worked as a

nursing assistant. (Id.). In 2017, she also worked as an outreach and enrollment specialist for a

health center and a health aide at a senior home. (Id.). From 2015-2016, she worked as a

phlebotomist. (Id.). From 2011-2012 and 2014-2016, she worked as a nursing assistant. (Id.).

B. Medical History

I.A. alleges that she is unable to work due to various physical and mental impairments.

(Id. at 89).

On October 18, 2017, I.A. saw Dr. Bernard J. Durante complaining of ear discomfort.

(Id. at 433). Dr. Durante diagnosed tinnitus in her left ear and sensorineural hearing loss in both

ears. (Id. at 434). He ordered a retrocochlear study. (Id.).

On October 18, 2017, I.A. saw Megan Spriegel, Au.D., for a comprehensive hearing test

and Dr. Eunyoung Won, Au.D., for hearing test analysis. (Id. at 436, 442). Dr. Won identified

“normal hearing sensitivity sloping to an asymmetrical high frequency sensorineural hearing

loss, worse in the left ear.” (Id. at 442). She further noted that I.A. had “excellent” word

recognition in her right ear, but only “fair” recognition in her left ear. (Id.).

On August, 22, 2019, Lauren Dibona, a physician’s assistant, began treating I.A. (Id. at

480). She noted that I.A. reported “some problems with memory and forgetfulness” and

“tinnitus in her left ear.” (Id. at 482). In addition, she noted that I.A. reported mood as “always

a problem,” a “history of depression”, and “not feel[ing] functional.” (Id. at 482).

On September 10, 2019, I.A. saw Dr. Richard S. Hill for her tinnitus. (Id. at 445-46).

I.A. reported that she believed that her hearing was “getting worse especially in the left year,”

and that her tinnitus was negatively impacting her ability to drive. (Id. at 445). Dr. Hill

informed her that the examination was “essentially normal,” but wanted her to receive a new

audiogram. (Id. at 446).

On September 26, 2019, I.A. saw Maria Eden Gianan, a nurse practitioner. (Id. at 532).

She reported feeling depressed, anxious, and “despised” by her family. (Id.). She noted that her

energy is “so-so,” her tinnitus does not allow her to sleep, and she feels ready for bed after 4 p.m.

(Id.). Ms. Gianan prescribed Seroquel. (Id. at 533).

On March 26, 2020, I.A. again saw Ms. Gianan. (Id. at 534-44). She reported visiting

her family and having the flu, which negatively impacted her sleep and anxiety. Nevertheless,

she noted that she was beginning to sleep better and needed a three-month supply of Seroquel for

upcoming travel. (Id. at 534). Ms. Gianan observed that I.A. was “still depressed but not

suicidal.” (Id.). She diagnosed bipolar II disorder and persistent depressive disorder

(dysthymia). (Id. at 544).

On July 24, 2020, I.A. again saw Ms. Dibona. (Id. at 601-07). Ms. Dibona noted that

I.A. was experiencing a “long standing” depressive disorder that had become “worst over the last

2-3 years” as well as tinnitus in the left ear. (Id. at 601). She advised continued self-care and

described I.A.’s recurrent major depressive disorder as “moderate.” (Id.).

On August 20, 2020, I.A. again saw Ms. Dibona. (Id. at 661-63). I.A. reported feeling

“very nervous” about her sister’s breast-cancer diagnosis but stated that she was “otherwise

feeling well.” (Id. at 663).

On October 26 and November 10, 2020, I.A. saw Dr. Angel Johnson reporting nocturia

and overactive bladder. (Id. at 584 and 593). Dr. Johnson ordered a kidney and bladder

ultrasound, and results appeared normal. (Id. at 585).

On November 12, 2020, Martha Root, P.C.N.S., treated I.A. for the first time. (Id. at

563-67). I.A. reported worsening bipolar depression and difficulty “functioning from day to

day.” (Id. at 565). She also reported “increased suicidal ideations about not wanting to live but

denie[d] having a plan.” (Id. at 566). Ms. Root noted that I.A.’s symptoms were consistent with

diagnoses of bipolar disorder and unspecified anxiety disorder. (Id. at 565-66). She prescribed

discontinuing Prozac and starting both Lexapro and Lamotrigine. (Id. at 566.).

On November 25, 2020, I.A. underwent an electrocardiogram with Dr. Andrew Kriegel

after experiencing chest pain. (Id. at 559-61). He noted that her electrocardiogram was normal

and that the chest pain was likely “brought on by emotional stress.” (Id. at 560).

On May 5, 2021, I.A. had a telehealth visit with Dr. Kenneth Grundfast concerning her

tinnitus and associated vertigo. (Id. at 620-23). He confirmed her prior diagnosis of tinnitus in

the left ear and ordered vestibular function and hearing tests to confirm her reported hearing loss.

(Id. at 623). She reported that she “only sleeps 2 hours per night” and is “now so afraid of falling

that she walks with a cane.” (Id. at 620).

C. Additional Medical Examinations or Opinions

On April 15, 2020, Dr. Alice Truong performed a consultative evaluation of I.A. (Id. at

118). Dr. Truong observed that she presented well with “normal thought processes and content”

and “normal speech but flat affect” (Id.). While I.A. did not report hearing issues during her

interview, Dr. Troung noted “high frequency asymmetric sensorineural hearing loss involving

the left ear” and “fair” word discrimination. (Id.). Dr. Troung assessed her as having “no severe

physical impairment.” (Id.).

On May 7, 2020, Dr. Steven Fischer, Psy.D., completed a review of I.A.’s impairments

and performed a mental Residual Functional Capacity (RFC) assessment. (Id. at 118-21). He

concluded that she is mildly limited in her ability to interact with others; mildly limited in her

ability to adapt or manage herself; and moderately limited in her ability to concentrate, persist, or

maintain pace. (Id. at 119). He stated that she has “benign mental status and mild to moderate

depression in the context of psychosocial stressors,” and is “lonely, sad, [and with] no support

system in place.” (Id.). As to her “sustained concentration and persistence,” he assessed that she

is moderately limited in her ability to “complete a normal workday and work-week without

interruptions from psychologically-based symptoms,” but could “carry out instructions in a

normal workday/workweek” (Id. at 121).

On August 26, 2020, Carol E. Montgomery, Ph.D., completed a consultative evaluation

of I.A. and performed a mental RFC assessment. (Id. at 167-69, 172-74). Dr. Montgomery

concluded that she is limited in the same activities and to the same degree that Dr. Fischer had

previously identified, with two exceptions: Dr. Montgomery found that she is also moderately

limited in her ability to “maintain attention and concentration for extended periods” and

moderately limited in her “ability to perform activities within a schedule, maintain regular

attendance, and be punctual within customary tolerances.” (Id. at 173).

On November 10, 2020, Dr, Richard Goulding performed a physical RFC assessment of

I.A. (Id. at 149-51). As to her communicative limitations, he concluded that she may be limited

in her ability to “work with the public and on the phone” due to her high frequency hearing loss.

(Id. at 149-50). Dr. Goulding found that her “word discrimination was 80% in the left ear and

92% on the right.” (Id. at 150). As to her environmental limitations, he assessed that she should

“avoid concentrated exposure” to noise. (Id.).

On August 30, 2021, Ms. Root completed a mental RFC assessment of I.A. (Id. at 636-

38). As to her limitations in understanding, Ms. Root concluded that she suffers from

depression. (Id. at 638). Ms. Root reported that “she has problems with recall and [her]

cognitive abilities are slowed.” (Id.). As a result, she “lacks proper memory for working a [full-

time] job.” (Id.). Ms. Root noted that I.A. is “markedly limited” in all categories evaluated

during the mental RFC assessment except for her “ability to maintain socially appropriate

behavior” and “ability to be aware of normal hazards and precautions.” In these two categories,

I.A. was deemed only “moderately limited.” (Id. at 636-37).

D. Hearing Testimony

I.A. testified at a remote hearing before the Administrative Law Judge on September 8,

2021. (Id. at 82-109). She stated that she is unable to work because of her bipolar disorder,

tinnitus, moodiness, difficulty concentrating, and forgetfulness. (Id. at 89). She testified that

she takes several medications for her mental-health impairments, but the side effects of those

medications include sleepiness, dizziness, dry mouth, and constipation. (Id. at 90). She also

testified that she hears ringing “constantly” due to her tinnitus, made worse by “driving[,] any

loud noise like music, [and] people talking loud[ly].” (Id. at 90-91). She stated that she is

“very anxious” and “depressive most of the time.” Once a month she will go without sleep

for three or four days, resulting in weeks of depression. (Id.).

As to her daily activities, I.A. testified that she gets up around 11:00 a.m., drinks

coffee that her roommate has prepared for her, reads her Bible, and eats breakfast. (Id.). She

then normally goes back to bed because she does not feel like “going out of the house or

do[ing] much of anything.” (Id.). After I.A. gets up again, she makes herself lunch, watches

television, and lays on the couch until her roommate makes her dinner. (Id. at 92). She

testified that she feels uncomfortable using the stove because she fears that she will leave it

on. (Id.). She stated that at 9:00 p.m., she usually takes her medication, and then goes to bed.

(Id.).

She explained that she lacks motivation to do household chores, that her room is a

mess, and that she struggles to keep things organized. (Id.). She noted that going to church

keeps her calm, but she otherwise does not have a desire to be out in public. (Id. at 92-93).

I.A. also discussed her past work experience. (Id. at 93-96). She explained that she

worked to help people enroll in MassHealth, but that that work was conducted by telephone,

which was frustrating due to her tinnitus. (Id. at 93). She testified that in 2015, she worked

as a phlebotomist. (Id. at 94). The position was difficult for her due to the night-shift

schedule, and she “made a lot of mistakes.” (Id.). She would hide her mistakes so she would

not get fired. (Id.). In 2014, she provided at-home health-care services. (Id.). She noted that

she also worked as a residential supervisor with disabled kids, but quit because they were

“violent and loud.” (Id. at 95). She also testified that she worked as a medical assistant in a

doctor’s office. (Id. at 95-96).

The ALJ asked the vocational expert if there were any jobs in the national economy

for someone who can perform work at all exertional levels but who must avoid exposure to

heavy machinery, moving mechanical parts, and unprotected heights; would be able to

understand, remember, and carry out simple and routine instructions for two-hour intervals

during an eight-hour workday in a 40-hour work-week; cannot perform work that requires

communication with the general public or communication by telephone as a function of the

job; and can tolerate moderate exposure to noise. (Id. at 102). The vocational expert testified

that there were the following jobs available in the national economy: commercial cleaner;

office cleaner; hospital cleaner; and hospital food service worker. (Id. at 102-03). However,

the vocational expert did note that these jobs would not be available to such an individual if

they were either “off task” for twenty percent of the day, or absent from work two days per

month. (Id. at 103).

E. Procedural History

On October 8, 2019, I.A. applied for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) benefits, alleging that she became disabled on October

20, 2018. (Id. at 61). The Commissioner denied her claim on May 7, 2020, and upon

reconsideration on February 4, 2021. (Id. at 180-82, 198-200). Thereafter, she filed a written

request for a hearing. (Id. at 204-05). The hearing was held on September 8, 2021. (Id. at 82-

109). She appeared remotely and testified at the hearing. (Id.). James Sarno, a vocational

expert, also testified at the hearing. (Id.).

On October 14, 2021, the ALJ concluded that I.A. was not disabled. (Id. at 58-76). She

requested a review of the ALJ’s decision. (Id. at 309-11). On October 4, 2022, the Appeals

Council declined to review the decision and adopted it as the final decision of the Commissioner.

(Id. at 17-19). This appeal followed.

Analysis

A. Standard of Review

Under the Social Security Act, this Court may affirm, modify, or reverse the final

decision of the Commissioner, with or without remanding the case for a rehearing. 42 U.S.C.

§ 405(g). The Commissioner’s factual findings, “if supported by substantial evidence, shall be

conclusive,” id., because “the responsibility for weighing conflicting evidence, where reasonable

minds could differ as to the outcome, falls on the Commissioner and his designee, the ALJ.”

Seavey v. Barnhart, 276 F.3d 1, 10 (1st Cir. 2001); see Evangelista v. Secretary of Health &

Human Servs., 826 F.2d 136, 143-44 (1st Cir. 1987). Therefore, “[j]udicial review of a Social

Security claim is limited to determining whether the ALJ used the proper legal standards and

found facts upon the proper quantum of evidence.” Ward v. Commissioner of Soc. Sec., 211 F.3d

652, 655 (1st Cir. 2000).

However, the Court may reverse or remand the ALJ’s decision if the ALJ ignored

evidence or made legal or factual errors. See Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)

(“The ALJ’s findings . . . are not conclusive when derived by ignoring evidence, misapplying the

law, or judging matters entrusted to experts.”); Moore v. Astrue, 2013 WL 812486, at *2 (D.

Mass. Mar. 2, 2013) (“[I]f the ALJ made a legal or factual error, the Court may reverse or

remand such decision . . . .”). Accordingly, if the “ALJ failed to record consideration of an

important piece of evidence that supports [the claimant’s] claim and, thereby, left unresolved

conflicts in the evidence, [the] Court can not conclude that there is substantial evidence in the

record to support the Commissioner’s decision.” Nguyen v. Callahan, 997 F. Supp. 179, 183 (D.

Mass. 1998); see also Crosby v. Heckler, 638 F. Supp. 383, 385-86 (D. Mass. 1985) (“Failure to

provide an adequate basis for the reviewing court to determine whether the administrative

decision is based on substantial evidence requires a remand to the ALJ for further explanation.”).

Questions of law are reviewed de novo. Seavey, 276 F.3d at 9.

B. Standard for Entitlement to SSDI Benefits

In order to qualify for society security disability insurance (“SSDI”) benefits or SSI

benefits, the claimant must demonstrate that he or she is “disabled” within the meaning of the

Social Security Act. See 42 U.S.C. §§ 423(d) (setting forth the definition of “disabled” in the

context of SSDI); 42 U.S.C. §§ 1382c(a)(1), 1382c(a)(3)(A) (same in the context of SSI).

“Disability” is defined, in relevant part, as the inability “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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The impairment must be severe

enough to prevent the claimant from performing not only past work, but any substantial gainful

work existing in the national economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 416.960(c)(1).

The Commissioner uses a sequential five-step process to evaluate whether a claimant is

disabled. See Mills v. Apfel, 244 F.3d 1, 2 (1st Cir. 2001); 20 C.F.R. § 416.920. Those steps are:

1) if the applicant is engaged in substantial gainful work activity, the application

is denied; 2) if the applicant does not have, or has not had . . . a severe impairment

or combination of impairments, the application is denied; 3) if the impairment

meets the conditions for one of the “listed” impairments in the Social Security

regulations, then the application is granted; 4) if the applicant’s “residual

functional capacity” is such that he or she can still perform past relevant work,

then the application is denied; 5) if the applicant, given his or her residual

functional capacity, education, work experience, and age, is unable to do any

other work, the application is granted.

Seavey, 276 F.3d at 5; see 20 C.F.R. § 416.920(a)(4). “The applicant has the burden of

production and proof at the first four steps of the process,” and the burden shifts to the

Commissioner at step five to “com[e] forward with evidence of specific jobs in the national

economy that the applicant can still perform.” Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir.

2001). At that juncture, the ALJ assesses the claimant’s RFC in combination with the vocational

factors of the claimant’s age, education, and work experience, to determine whether he or she

can engage in any kind of substantial gainful work which exists in the national economy. 20

C.F.R. §§ 416.920(g), 416.960(c).

C. The Administrative Law Judge’s Findings

In evaluating the evidence, the ALJ followed the established five-step procedure set forth

in 20 C.F.R. § 416.920(a)(4).

At step one, the ALJ found that I.A. had not engaged in “substantial gainful activity since

October 25, 2019, the alleged onset date.” (A.R. at 64).

At step two, the ALJ addressed the severity of I.A.’s impairments. She concluded that

I.A. had the following severe impairments: hearing loss, depressive disorder, and bipolar

disorder. (Id.). She found that those impairments significantly limited I.A.’s ability to perform

basic work activities as required by SSR 85-28. (Id.).

At step three, the ALJ found that those impairments, or their combination, did not meet or

medically equal the severity of the requirements of a listed impairment under 20 C.F.R. Part 404,

Subpart P, App’x 1. (Id. at 65). She stated that I.A.’s “mental impairments, considered singly

and in combination, do not meet or medically equal the criteria of listing 12.04” and noted that,

“[i]n making [that] finding, the undersigned has considered whether the ‘paragraph B’ criteria

[were] satisfied.” (Id.).

“To satisfy the paragraph B criteria, [the] mental disorder must result in ‘extreme’

limitation of one, or ‘marked’ limitation of two, of the four areas of mental functioning.” 20

C.F.R. Part 404, Subpart P, App’x 1, 12.00 Mental Disorders. Those four areas are:

“[u]nderstand, remember, or apply information; interact with others; concentrate, persist, or

maintain pace; and adapt or manage oneself.” Id.

The ALJ concluded that the “paragraph B” criteria were not met because I.A. had only a

mild limitation in interacting with others and adapting or managing herself, and only a moderate

limitation in concentrating, persisting, or maintaining pace. (A.R. at 65-66). In addition, she

found that she did not satisfy the “paragraph C” criteria because the “evidence fail[ed] to

establish” that criteria. (Id. at 67).

After consideration of the record, the ALJ concluded that I.A. has the residual functional

capacity to perform work subject to certain nonexertional limitations. (Id.). The ALJ found that

she cannot perform work that requires communication with the public or communication by

telephone as a function of the job. (Id.). She also must avoid exposure to hazards such as heavy

machinery, moving mechanical parts, and unprotected heights. (Id.). The ALJ concluded that

she can tolerate moderate exposure to noise, and that she can understand, remember, and carry

out simple and routine instructions for two-hour intervals during an eight-hour workday in a 40-

hour work-week. (Id.).

In making that finding, the ALJ followed a two-step process. (Id. at 67-68). First, she

considered whether there were underlying medically determinable physical or mental

impairments—that is, impairments that could be shown by medically acceptable clinical or

laboratory diagnostic techniques—that could reasonably be expected to produce I.A.’s pain or

other symptoms. (Id. at 68). Second, she evaluated the intensity, persistence, and limiting

effects of those symptoms to determine the extent they limited her work-related activities. (Id.).

For that purpose, whenever statements about those symptoms were not substantiated by objective

medical evidence, she considered other evidence in the record to determine if the symptoms

limited her ability to perform work-related activities. (Id. at 68-73).

At the first step of the two-step process, the ALJ determined that I.A.’s medically

determinable impairments could reasonably be expected to cause the alleged symptoms. (Id. at

68). However, at the second step, she found that I.A.’s statements about the intensity,

persistence, and limiting effects of her symptoms were not consistent with the medical evidence

and other evidence in the record. (Id. at 68-73). Specifically, she found that her statements were

inconsistent with medical evidence showing that her anxiety and depression are exacerbated

“during times of situational stress.” (Id. at 71). She further found that medical evaluations show

that she is psychiatrically stable when taking her prescribed medication. (Id.). She further noted

that the evidence does not suggest limitations in her ability to ambulate or perform other physical

activities. (Id.). Finally, she observed that she has not undergone a recent hearing test, and there

is no MRI in the record to support her testimony as to the severity of her hearing loss. (Id.).

In making those determinations, the ALJ stated that she did not defer or give any specific

evidentiary weight, including controlling weight, to any prior administrative medical findings or

medical opinions. (Id. at 72). She found the limitations given by the state agency consultants

persuasive overall because they “are not inconsistent with the medical evidence as a whole.”

(Id.). She concluded that the mental RFC assessment of Ms. Root, which reported slowed recall

and cognition abilities due to depression and anxiety, was of “little persuasive value” because it

“does not provide a sufficient function-by-function analysis to justify these severe limitations.”

(Id. at 72-73).

The ALJ determined that I.A. is unable to perform past relevant work under 20 C.F.R.

§§ 404.1565, 416.965. (Id. at 73). She noted that according to the vocational expert, “[an]

individual with [her] limitations would be unable to perform [her] past relevant work as actually

or generally performed.” (Id.).

At step five, the ALJ considered I.A.’s age, education, work experience, and RFC.

Taking all of those factors into account, she found that a significant number of jobs existed in the

national economy that I.A. could perform. (Id.); see also 20 C.F.R. §§ 416.969, 416.969a. To

determine the extent that her limitations impede her ability to perform unskilled work at all

exertional levels, the ALJ asked the vocational expert whether jobs existed in the national

economy for an individual with the claimant’s age, education, work experience, and RFC. (A.R.

at 74). The vocational expert testified that a person with her characteristics could work in

representative occupations such as commercial cleaner; office cleaner; hospital cleaner; and

hospital food service worker. (Id.). The ALJ concluded that after considering her

characteristics, she could make a successful adjustment to work that exists in significant numbers

in the national economy, and that therefore she was not disabled within the meaning of the Social

Security Act. (Id.).

D. Plaintiff’s Objections

Plaintiff raises two principal objections to the ALJ’s determination that she is not

disabled: (1) that the ALJ failed to adequately evaluate the opinions of Dr. Montgomery and Dr.

Fischer and (2) that the ALJ failed to include an adequate assessment of I.A.’s moderate

limitations as reported by Dr. Montgomery in her RFC findings.

1. Medical Opinions of Dr. Montgomery and Dr. Fischer

Plaintiff first contends that the ALJ's finding is not supported by substantial evidence

because she did not expressly address the limitations noted by Dr. Montgomery and Dr. Fischer

despite finding those opinions persuasive. She asserts that the ALJ incorrectly stated that the

state agency consultants’ opinions were consistent with each other. She further contends that

that error is not harmless because a proper evaluation of the medical opinions might have

resulted in a different finding.

An ALJ “will not defer or give any specific evidentiary weight, including controlling

weight, to any medical opinion(s) or prior administrative medical finding(s), including those

from [the claimant's] medical sources.” 20 C.F.R. § 404.1520c. When determining what weight

to assign to a medical source opinion, the ALJ must consider the opinion's “supportability,

consistency, relationship, specialization, and other factors.” Harrison v. Saul, 2021 WL

1153028, at *5 (D. Mass. Mar. 26, 2021). “The most important factors to be considered when

the Commissioner evaluates persuasiveness are supportability and consistency; these are usually

the only factors the ALJ is required to articulate.” Id. “ALJs must consider the persuasiveness

of all medical opinions in a claimant's case record and need not defer to the medical opinions of a

claimant's treating physicians.” Id. This means that “[a] medical opinion without supporting

evidence, or one that is inconsistent with evidence from other sources, [is] not . . . persuasive

regardless of who made the medical opinion.” Id. (quoting REVISIONS TO RULES REGARDING

THE EVALUATION OF MEDICAL EVIDENCE, 82 Fed. Reg. 5844, 5854 (Jan. 18, 2017)). “An ALJ's

decision to accord a treating physician's opinion with little weight will be sustained on review so

long as one of the reasons given by the ALJ is proper and adequately supported.” Id. at *6.

Here, Dr. Fischer and Dr. Montgomery both found I.A.’s bipolar disorder to be a severe

impairment that moderately limited her ability to concentrate. (A.R. at 118-21, 152, 167-68).

The ALJ noted that she found all of the state agency consultants persuasive in part because their

“finding of insufficient evidence to determine a severe impairment [is] consistent with the

longitudinal treatment record.” (Id. at 72). However, both doctors clearly did find a severe

impairment. (Id. at 119, 167). Plaintiff contends that the ALJ’s error shows that she failed to

adequately analyze the persuasiveness of the state agency medical reports. See Harrison, 2021

WL 1153028, at *5.

While the ALJ incorrectly noted that the state agency consultants did not find a severe

impairment, she nonetheless found bipolar disorder and depression to be severe impairments at

step two. (A.R. at 64, 72-73). That finding is consistent with the reports of Dr. Fischer and Dr.

Mongomery, and is favorable to I.A. (Id.); Harrison, 2021 WL 1153028, at *5. Her conclusion

as to the severity of her bipolar disorder is therefore accurately based on the medical reports of

the state agency consultants. See Harrison, 2021 WL 1153028, at *6.

Thus, the ALJ’s evaluation of the persuasiveness of the state agency consultants does not

support remand, because it would only serve to correct one sentence in the ALJ opinion that

(while incorrect) was not dispositive against I.A. Perez Torres v. Secretary of Health & Human

Servs., 890 F.2d 1251, 1255 (1st Cir. 1989) (holding ALJ’s error harmless where the record

supports ALJ’s conclusion); see also Ward, 211 F.3d at 656 (noting remand not essential where

it will amount to empty explanatory exercise for the ALJ). Despite the favorable finding of a

severe impairment, the ALJ nonetheless found that I.A. retained the residual functional capacity

to perform many basic activities associated with work. (A.R. at 74).

2. Evidence Concerning Plaintiff’s Mental-Health Limitations

Plaintiff also contends that the ALJ ignored evidence concerning her mental-health

limitations. She asserts that the ALJ did not discuss medical findings of a moderate limitation in

her ability to maintain regular attendance. Specifically, she asserts that she neglected to address

absenteeism related to her moderate limitation in her “ability to perform activities within a

schedule, maintain regular attendance, and be punctual within customary tolerances,” as noted by

Dr. Montgomery. (Id. at 173). 1 The Commissioner contends that that apparent oversight is not

cause for remand and that the ALJ offered multiple reasons for finding that her symptoms were

not disabling.

The “substantial evidence” standard is one where “a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate to support [her] conclusion.”

Miranda v. Secretary of Health, Ed. & Welfare, 514 F.2d 996, 998 (1st Cir. 1975); Sousa v.

Astrue, 783 F. Supp. 2d 226, 232 (D. Mass. 2011). Accordingly, the ALJ must review all the

relevant evidence. See Sousa, 783 F. Supp. 2d at 232; SSR 16-3p. However, the ALJ is not

required to discuss every piece of evidence in the record when making his or her decision.

Santiago v. Secretary of Health & Human Servs., 1995 WL 30568, at *4 (1st Cir. Jan. 25, 1995);

Sousa, 783 F. Supp. 2d at 234 (“The hearing officer is not required to—nor could [she]

reasonably—discuss every piece of evidence in the record.”). Moreover, even if one could come

to a different conclusion than the ALJ, the question on judicial review is whether substantial

evidence supports the ALJ’s decision. Robles v. Barnhart, 2005 WL 1773963, at *4 (D. Mass.

2005) (“If substantial evidence exists to support the ALJ’s determination, the Court must accept

[her] findings as conclusive even if the record arguably could justify a different conclusion.”). A

reviewing court may reverse or remand the ALJ’s decision when the ALJ ignored evidence or

made legal or factual errors. Moore, 2013 WL 812486, at *2; Robles, 2005 WL 1773963, at *4.

Here, the ALJ noted that I.A.’s depression was consistently found to be mild or moderate,

and correlates strongly with external stressors such as a poor night’s sleep, becoming sick with

1 In addition, I.A. contends that the ALJ inappropriately interpreted raw medical data as a layperson when

finding that she can follow simple instructions for two-hour intervals during an eight-hour workday in a 40-hour

work-week. (A.R. at 67). The ALJ’s finding, however, appropriately reflects the limitations reported by Dr. Fischer

and Dr. Montgomery. Following simple instructions for two-hour spans is consistent with their conclusion that I.A.

can follow instructions during a typical workday. (A.R. at 121, 173).

the flu, or her sister’s cancer diagnosis. (A.R. at 69). She further noted a history of mental status

exams within normal limits. (Id. at 69-71). She also found that “treatment notes reflect mild to

moderate symptoms of psychiatric impairment, but they do not reflect symptoms on a disabling

level.” (Id. at 71). While Dr. Montgomery found that I.A. had a moderate limitation in keeping

regular attendance, Dr. Fischer found that she was not significantly limited in that area. (Id. at

152, 121).

While the ALJ did not specifically address issues related to absenteeism, or note that two

doctors reached conflicting conclusions concerning I.A.’s limitations in maintaining regular

attendance, those omissions need not result in remand where the record as a whole supports her

determination. See Ortiz v. Secretary of Health and Hum. Servs., 955 F.2d 765, 770 (1st Cir.

1991) (affirming ALJ’s determination despite noting record could arguably support different

conclusion); see also Sousa, 783 F. Supp. 2d at 234 (“The fact that the hearing officer

‘generally’ agreed with the assessment of [the physician] did not mean that he was required to

accept every statement in that assessment.”).

The ALJ considered evidence from multiple sources, evaluated the record, and rendered a

decision that was consistent with the evidence, and the RFC assessment by Dr. Fischer. Thus,

the ALJ's determination is supported by substantial evidence and will be affirmed.

Conclusion

For the foregoing reasons, I.A.’s motion for judgment on the pleadings is DENIED, and

defendant’s motion to affirm the action of the Commissioner is GRANTED.

So Ordered.

/s/ F. Dennis Saylor IV

F. Dennis Saylor IV

Dated: January 3, 2024 Chief Judge, United States District Court