Bergeron v . SSA CV-11-395-PB 6/7/12
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Lori Bergeron
v. Case N o . 11-cv-395-PB Opinion N o . 2012 DNH 102 Michael J. Astrue, Commissioner Social Security Administration
MEMORANDUM AND ORDER
Lori Bergeron seeks judicial review of a decision by the
Commissioner of the Social Security Administration denying her
applications for disability insurance and supplemental security
income benefits. Bergeron contends that the Administrative Law
Judge (“ALJ”) who considered her application made a number of
errors in determining that she retained a residual functional
capacity (“RFC”) for sedentary work. For the reasons provided
below, I affirm the Commissioner’s decision.
I. BACKGROUND1
Bergeron applied for disability insurance and supplemental
security income benefits on July 2 8 , 2006, when she was twenty-
eight years old. She alleged a disability onset date of June 1 ,
1 The background information is taken from the parties’ Joint Statement of Material Facts. See L.R. 9.1(b). Citations to the Administrative Transcript are indicated by “Tr.”
1 2006, due to an open compound fracture of her right tibia and
fibula, panic disorder, and bipolar disorder. She finished high
school and attended some college. In the past she worked as a
waitress, a secretary, and a manager/bookkeeper.
A. Administrative Proceedings
After Bergeron’s applications were denied at the initial
levels, she requested a hearing before an ALJ. Following a
hearing, the ALJ issued an unfavorable decision in October 2008.
Bergeron sought judicial review, and in November 2009, this
court reversed and remanded the ALJ’s decision because the ALJ
failed to explain the consideration she gave to the medical
opinion of Bergeron’s primary care provider. See Bergeron v .
Astrue, Civ. N o . 09-cv-070-SM, 2009 WL 3807156 (D.N.H. Nov. 1 0 ,
2009).
A new hearing was held before the same ALJ on March 2 8 ,
2011. The ALJ issued an unfavorable decision on April 1 3 , 2011.
At step two of the sequential analysis, the ALJ found that
Bergeron suffered from “right leg deformity, status post tibia
fracture,” and that the condition was a severe impairment. At
step three, however, the ALJ found that Bergeron did not have an
impairment or combination of impairments that met or medically
equaled a listing. The ALJ went on to find that Bergeron
retained the RFC to perform sedentary work involving only
occasional climbing, balancing, stooping, kneeling, crouching,
2 or crawling. At step four, she concluded that Bergeron was
capable of performing her past relevant work as a secretary.
Accordingly, the ALJ found that she was not disabled from June
1 , 2006, through the date of the decision. Bergeron again filed
for judicial review.
B. Relevant Medical Evidence2
Prior to her alleged onset date, Bergeron’s primary care
physician, D r . John Ford, treated her for chronic pain with
methadone. D r . Ford attempted to have her taper off methadone,
but continued to prescribe it when Bergeron did not tolerate the
attempted wean. D r . Ford referred Bergeron to a physician more
experienced in handling chronic methadone use, but it is not
clear from the record whether Bergeron met with this physician.
On June 1 , 2006, the alleged disability onset date,
Bergeron was involved in a motor vehicle accident as the driver
of a car that went across the midline and struck an oncoming
car. A physician at the Androscoggin Valley Hospital assessed
that Bergeron suffered multiple trauma, including four fractured
ribs, bilateral lung contusions, a fractured left sacrum, a
fractured left anterior pubic ramus, a fractured left L5
transverse process, an open compound fracture of the right tibia
2 Because Bergeron only challenges the ALJ’s physical RFC assessment, I need not recount her mental health treatment records and evaluations.
3 and fibula, and probable renal contusion. The physician noted
that Bergeron had lost consciousness, but that a CT scan of the
head revealed no structural abnormalities.
Bergeron was then transferred to the Dartmouth-Hitchcock
Medical Center, where she underwent surgery to repair the open
compound fracture of her right tibia and fibula and to remove
intra-abdominal fluid. She was discharged from the hospital on
June 5 , 2006, with a splint on her right leg and prescriptions
for oxycodone, methadone, and Neurontin. Bergeron’s discharge
instructions specified that she should use touch-down weight-
bearing only on her right leg.
Following her discharge, Bergeron received treatment for
her fracture from D r . Kenneth J. Koval of the Dartmouth-
Hitchcock Medical Center. An x-ray taken on June 2 1 , 2006,
showed that Bergeron’s fracture lines still were quite apparent
and that there was no evidence of significant union. On July
1 9 , an x-ray showed that Bergeron’s tibia and fibula were
unchanged.
Approximately two weeks later, Bergeron was admitted to the
Dartmouth-Hitchcock Medical Center, where physicians noted that
she had developed inflammation of the bone caused by infection
in her fracture wound and that the skin overlying the fracture
was necrotic, indicating cell death. Bergeron underwent another
surgery for irrigation and debridement of the wound; removal of
4 previously placed intramedullary fixation rod and screws;
application of an external fixator to stabilize the fracture;
irrigation, debridement, and replacement of antibiotic beads;
and plastic surgery to her right leg with spilt skin graft. She
was discharged a week later with instructions not to bear weight
on her right leg and to keep the leg elevated.
At a follow-up visit on August 1 4 , D r . Koval noted that
Bergeron’s external fixator was intact, her pin sites were
clean, her skin graft appeared viable without significant
drainage, and her surgical wounds were well-healed. Bergeron
reported that her pain was relatively well-controlled. Dr.
Christopher P. Demas, the physician who had performed Bergeron’s
skin graft, noted that the graft was 100% “take” and looked
perfect, with no evidence of infection, seroma, or hematoma.
Dr. Koval placed Bergeron’s ankle in a posterior splint and
instructed her to remain non-weight-bearing until her next x-ray
in two weeks. He noted that he had discussed with Bergeron that
she might need a bone graft for the fracture to fully heal.
On August 2 4 , 2006, D r . Patrick R. Olson noted that
clean, her surgical wounds were well-healed, and her skin graft
was intact. Bergeron reported that her main symptom was pain in
her leg. D r . Olson urged Bergeron to quit smoking, as it could
prevent bone healing, and instructed her to continue to remain
5 non-weight-bearing. An x-ray revealed that Bergeron’s fracture
was unchanged. On the same date, D r . Demas noted that
Bergeron’s skin graft was 90% healed. Bergeron requested
narcotics for pain, but D r . Demas felt that she no longer
required narcotics for her skin graft. He advised Bergeron to
apply moisturizer to the area.
The following day, Bergeron met with D r . Gilbert J.
Fanciullo to discuss pain medication. D r . Fanciullo noted
Bergeron’s remote history of heroin abuse and advised her that
he would not prescribe oxycodone. D r . Fanciullo did agree to
prescribe methadone and hydromorphone as needed while the
external fixator remained in Bergeron’s leg, but stated that he
would wean her off of all opioids after removal of the device.
Dr. Fanciullo noted that it would be appropriate for D r . Ford to
continue to prescribe methadone for Bergeron’s lower back pain
after that point.
An x-ray taken on September 5 , 2006, showed that Bergeron’s
fracture lines remained visible and that extensive soft tissue
deformities were present. On September 1 4 , D r . Jose-Mario
Fontanilla noted that Bergeron’s delayed bone healing was
indicative of ongoing infection, and that Bergeron might need a
bone graft. On that same date, D r . Demas noted that Bergeron’s
skin graft was essentially totally healed and released her from
active follow-up.
6 On September 2 9 , D r . Olson noted that Bergeron appeared
obviously distressed. She reported falling and hitting her
external fixator, resulting in severe pain in her tibia. Dr.
Olson determined that the external fixator was intact and
aligned. An x-ray revealed no change in alignment. He
assessed, however, that Bergeron needed a bone graft.
In October, state agency physician D r . Joseph Cataldo
reviewed Bergeron’s medical records and evaluated her tibia
fracture. D r . Cataldo opined that Bergeron could lift and carry
twenty pounds occasionally and ten pounds frequently; stand and
walk for about six hours in an eight-hour workday; sit for about
six hours in an eight-hour workday; and engage in unlimited
pushing and pulling. He further opined that Bergeron could
climb, balance, stoop, kneel, crouch, and crawl only
occasionally.
On October 1 2 , D r . Billy W . McGough, J r . noted that
Bergeron was showing signs of tibial nonunion and informed her
that she would receive a bone graft sometime in the following
weeks. The bone graft procedure took place on November 2 9 .
Bergeron was released the following day after an overnight stay
at the hospital for pain control and observation.
At a follow-up appointment on December 1 2 , D r . Koval noted
that Bergeron’s pin sites were clean and dry and that her leg
7 was in good alignment. An x-ray showed that Bergeron’s fracture
and hardware were in adequate position.
On January 2 3 , 2007, D r . Koval again noted that Bergeron’s
pin sites were clean and dry, with a minimal amount of drainage
from her most distal pin site. An x-ray showed increased
opacity around the fracture site, indicating that the bone was
healing. Bergeron’s fracture line was still visible but less so
than in previous x-rays. D r . Koval noted that Bergeron was
bearing weight as tolerated with some pain at the fracture site
and advised her to continue to bear weight as tolerated.
At a follow-up appointment in March 2007, D r . Koval noted
that an x-ray showed that the fracture was healing. Bergeron’s
external fixator was removed and she was placed in a walking
boot. D r . Koval advised her to bear weight on her right leg as
tolerated.
On April 2 6 , D r . Koval noted that Bergeron was walking
without the assistance of any devices but still had a limp.
Bergeron complained of a burning or nerve sensation around the
fracture. She was able to squat (though not fully) and jump up
and down with some pain. Bergeron had no pain when her leg was
stressed. An x-ray revealed that the fracture was healing and
in adequate position. D r . Koval advised Bergeron to increase
her activities and desensitize the fracture area by rubbing it
with lotion.
8 On July 9, state agency orthopedic surgeon D r . Avigdor I .
Niv reviewed Bergeron’s medical records and evaluated her tibia
fracture. D r . Niv noted that the medical evidence showed that
Bergeron’s fracture was well on its way to healing nine months
after the injury, and that he expected Bergeron to recuperate to
her pre-injury level of functioning by one year from the date of
the injury. D r . Niv further noted that Bergeron’s other
fractures were non-severe, as evidenced by the lack of
treatment.
On July 2 6 , 2007, D r . Koval noted that Bergeron was
ambulating and bearing full weight. She complained of numbness
and pain in her leg. D r . Koval noted that the pain seemed
mostly muscular in origin, except for around the medial aspect
of her wound, where there seemed to be a possible tumor growing
from a nerve. He noted excellent motion to both plantar and
dorsiflexion, with some tenderness in the medial aspect of the
wound to percussion. She experienced no pain when the leg was
stressed. An x-ray showed that the fracture had healed with
bridging bone present, though the fracture line was still
visible. D r . Koval advised Bergeron to continue to bear weight
as tolerated. He suggested a revision soft tissue surgery, but
Bergeron did not want to consider it at that point.
One year later, in July 2008, Bergeron’s primary care
physician, D r . Glen Adams, completed a medical source statement.
9 Dr. Adams stated that he had seen Bergeron only three times
since he became her primary care provider in May 2008, and thus
could not fully assess her functional capacity. He noted,
however, that she ambulated without difficulty and without
assisted devices in his office. He also opined that Bergeron
could perform the following activities of daily living:
shopping, traveling without a companion, ambulating without
assistance, using standard public transportation, preparing
simple meals, feeding herself, caring for her personal hygiene,
and handling paper/files.
On July 1 0 , 2008, Bergeron broke her controlled substance
agreement with the Dartmouth-Hitchcock Medical Center, as
evidenced by cocaine in her urine. She was on a tapering dose
of methadone at that time. On exam, her gait was normal. It
was noted that she was taking care of her grandmother.
On September 1 9 , 2008, Bergeron sought treatment at the
Coos County Family Health Services, complaining that she felt
weak and dizzy. She also reported back and right leg pain.
Results of neurological and psychological objective exams were
normal. Bergeron was informed that the facility could not
provide treatment with controlled substances until Bergeron
cancelled her controlled substance agreement with the Dartmouth-
Hitchcock Medical Center.
10 On November 5 , an x-ray of Bergeron’s right leg showed old
healed fractures of the right tibia and fibula and moderate soft
tissue deformity. D r . Paul Kamins noted that Bergeron’s right
tibia fracture was fully healed and looked very solid. He also
noted that when Bergeron found out that the x-rays of her leg
showed normal results, she immediately turned her attention to
her lower back pain. A week later, Bergeron reported ongoing
pain and weakness in her leg. She ambulated on her own,
however, with no gait disturbance.
On February 4 , 2009, Bergeron reported chronic leg and back
pain to D r . Adams. She complained that her pain was worse when
she went “snow machining.” On exam, she had a normal gait. Her
medications were continued.
On February 8 , 2010, Bergeron was examined by D r . Gary P.
Francke regarding her leg and back pain. On exam, Bergeron was
in no active distress or obvious pain, stood normally, had
normal sitting posture, and was able to ambulate in the exam
room. Slight weakness of the right calf muscle was noted.
Bergeron displayed a full range of motion in her spine, though
mild soreness was noted with palpation to the back. Bergeron
was also able to bend over and touch her toes and to demonstrate
full flexion, extension, tilling, and twisting of the spine
without any apparent discomfort. D r . Francke opined that
Bergeron had good function in her right leg and back and that
11 she had the ability to do basic work-related activities such as
sitting, standing, walking, lifting, carrying, and bending.
On February 2 3 , 2010, state agency physician D r . Jonathan
Jaffe reviewed Bergeron’s medical records and evaluated her
tibia fracture and chronic lower back pain. D r . Jaffe opined
that Bergeron could lift and carry twenty pounds occasionally
and ten pounds frequently; stand and walk for about six hours in
an eight-hour workday; sit for about six hours in an eight-hour
workday; and engage in unlimited pushing and pulling. He
further opined that Bergeron could climb, balance, stoop, kneel,
crouch, and crawl only occasionally.
On April 2 , 2010, Bergeron presented to the Dartmouth-
Hitchcock Spine Center at D r . Ford’s request. On exam, Bergeron
ambulated with a mild limp on her right side. She displayed
lumbar pain with palpation. From a standing position, Bergeron
could flex forward from her waist to her calf, though the
movement increased her lower back pain. Bergeron also had back
pain with extension. Decreased sensation in her right lateral
calf was noted, and the straight-leg-raise test resulted in pain
in her posterior calf. It was noted that Bergeron was not a
surgical candidate.
On April 3 0 , Bergeron had an appointment with D r . Ford
regarding her chronic pain syndrome. She reported that she felt
12 great and that her pain, though present, was controlled. At a
follow-up visit on May 2 7 , Bergeron displayed a normal gait.
On September 1 7 , 2010, D r . Ford completed a Lumbar Spine
RFC Questionnaire. D r . Ford noted that Bergeron suffered from
chronic back and lower right extremity pain that caused reduced
range of motion, abnormal gait, sensory loss, lower back
tenderness, and right lower extremity weakness. D r . Ford stated
that emotional factors contributed to the severity of Bergeron’s
impairments and that her symptoms frequently interfered with
concentration and attention. D r . Ford opined that Bergeron
could only walk one block without rest or severe pain; could
sit, stand, or walk for about two hours total in an eight-hour
workday; would require an at-will sit/stand option; would need
to sit with her legs elevated throughout the day; would need
unscheduled breaks every one-to-two hours; could never lift ten
pounds or more; could only occasionally lift less than ten
pounds; could never crouch, squat, or climb ladders; and could
rarely twist, stoop, or climb stairs. He also opined that
Bergeron would miss more than four days of work per month due to
her impairments, which he noted had existed since June 1 , 2006.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the transcript of the
13 administrative record and enter a judgment affirming, modifying,
or reversing the “final decision” of the Commissioner. My
review is limited to determining whether the ALJ used “the
proper legal standards and found facts [based] upon the proper
quantum of evidence.” Ward v . Comm’r of Soc. Sec., 211 F.3d
652, 655 (1st Cir. 2000).
The findings of fact made by the ALJ are accorded deference
as long as they are supported by substantial evidence. Id.
Substantial evidence to support factual findings exists “‘if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion.’”
Irlanda Ortiz v . Sec’y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991) (per curiam) (quoting Rodriguez v . Sec’y of
Health & Human Servs., 647 F.2d 2 1 8 , 222 (1st Cir. 1981)). If
the substantial evidence standard is met, factual findings are
conclusive even if the record “arguably could support a
different conclusion.” Id. at 770.
Findings are not conclusive, however, if they are derived
by “ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v . Chater, 172 F.3d 3 1 , 35 (1st
Cir. 1999). The ALJ is responsible for determining issues of
credibility and for drawing inferences from evidence on the
record. Ortiz, 955 F.2d at 769. It is the role of the ALJ, not
the court, to resolve conflicts in the evidence. Id.
14 The ALJ follows a five-step sequential analysis for
determining whether an applicant is disabled. 20 C.F.R. §
404.1520; 20 C.F.R. § 416.920. The applicant bears the burden,
through the first four steps, of proving that his impairments
preclude him from working. Freeman v . Barnhart, 274 F.3d 606,
608 (1st Cir. 2001). At the fifth step, the ALJ determines
whether work that the claimant can d o , despite his impairments,
exists in significant numbers in the national economy and must
produce substantial evidence to support that finding. Seavey v .
Barnhart, 276 F.3d 1 , 5 (1st Cir. 2001).
III. ANALYSIS
Bergeron moves to reverse and remand the Commissioner’s
decision denying her disability claims on three grounds. First,
she argues that the ALJ’s RFC assessment is not supported by
substantial evidence in the record. Second, she contends that
the ALJ erred by determining an RFC that deviated from the state
agency consultant’s RFC without reference to his assessment.
Lastly, she appears to argue that the ALJ gave improper weight
to the opinion of D r . Ford, her treating provider. I address
each challenge below.
A. The ALJ’s RFC Assessment
The ALJ determined that Bergeron was capable of sedentary
work involving only occasional climbing, balancing, stooping,
15 kneeling, crouching, or crawling. Bergeron argues that the
ALJ’s RFC assessment is not supported by the record. I
disagree.
Determination of a claimant’s RFC is an administrative
decision reserved for the Commissioner. See 20 C.F.R. §
404.1527(d); SSR 96-5p, 1996 WL 374183, at *2 (July 2 , 1996).
Bergeron is correct that no medical opinion in the record
exactly mirrors the ALJ’s RFC assessment. She fails to
recognize, however, that an ALJ is entitled to “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). Social Security
regulations make it clear that an RFC assessment need not be
based solely on medical opinions in the record; indeed, the ALJ
must consider “all of the relevant medical and other evidence.”
20 C.F.R. § 404.1545(a)(3); see SSR 96-5p, 1996 WL 374183, at *4
(“Even though the adjudicator’s RFC assessment may adopt the
opinions in a medical source statement, they are not the same
thing: A medical source statement is evidence that is submitted
to SSA by an individual’s medical source reflecting the source’s
opinion based on his or her own knowledge, while an RFC
assessment is the adjudicator’s ultimate finding based on a
consideration of this opinion and all the other evidence in the
case record about what an individual can do despite his or her
16 impairment(s).”). As long as the ALJ does not overstep the
bounds of lay competence, she can “render[] common-sense
judgments about functional capacity based on medical findings.”
Gordils v . Sec’y of Health & Human Servs., 921 F.2d 3 2 7 , 329
(1st Cir. 1990). Here, ample evidence in the record supports
the ALJ’s conclusion that Bergeron was capable of sedentary
work.
The ALJ gave significant weight to the opinion of D r .
Francke, the orthopedic consultant who examined Bergeron. Dr.
Francke opined that Bergeron had good function in her right leg
and back and that she had the ability to do basic work-related
activities such as sitting, standing, walking, lifting,
carrying, and bending. D r . Francke based his opinion on
clinical findings and observations, including that Bergeron was
normal sitting posture, was able to ambulate in the exam room,
demonstrated only slight weakness of the right calf muscle and
mild soreness with palpation to the back, and displayed a full
range of motion in her spine without any apparent discomfort.
Bergeron faults the ALJ for relying upon D r . Francke’s
opinion because D r . Francke did not articulate his findings in
specific functional terms. Even s o , the ALJ was justified in
treating D r . Francke’s opinion as evidence for the conclusion
that Bergeron retained the capacity to do sedentary work. The
17 regulations define sedentary work as work performed primarily in
a seated position while lifting no more than ten pounds, with
occasional walking and standing. 20 C.F.R. § 404.1567(a).
Although D r . Francke did not indicate whether Bergeron could
perform such work for eight hours at a time, his opinion that
she could engage in work activities involving sitting, standing,
walking, lifting, carrying, and bending is indicative of her
ability to do sedentary work. Accordingly, the ALJ was entitled
to conclude that D r . Francke’s observations and opinion
supported her RFC assessment.
I need not decide whether D r . Francke’s opinion was
sufficient evidence of Bergeron’s ability to engage in sedentary
work, as Bergeron urges, because the ALJ did not rely solely
upon that opinion in assessing Bergeron’s RFC. She also
considered Bergeron’s treatment records indicating that she made
a steady progress toward recovery. Specifically, the ALJ cited
records indicating that as of July 2007, Bergeron’s tibia
fracture had healed and she was able to ambulate, stand, squat,
jump up and down, and bear full weight on her right leg with
minimal pain. Contrary to Bergeron’s suggestion, the ALJ’s
consideration of the medical evidence did not amount to
interpretation of raw data from the medical record. It was
reasonable for the ALJ to make a common-sense determination as
to Bergeron’s RFC based on relatively normal x-ray results and
18 physical examinations. See Gordils, 921 F.2d at 329 (“[I]f the
only medical findings in the record suggested that a claimant
exhibited little in the way of physical impairments, but nowhere
in the record did any physician state in functional terms that
the claimant had the exertional capacity to meet the
requirements of sedentary work, the ALJ would be permitted to
reach that functional conclusion himself.”); Laflamme v . Comm’r
of Soc. Sec., 07-CV-122-PB, 2007 WL 4208550, at *5 (D.N.H. Nov.
2 7 , 2007) (“Because the medical evidence in the record
demonstrates relatively little physical impairment, the ALJ did
not err by drawing his own conclusion about how [the claimant’s]
medical impairments impact her functional capacity.”).
Lastly, the ALJ considered Bergeron’s testimony that was
consistent with the assessment that she retained the RFC for
sedentary work. Specifically, the ALJ noted that Bergeron
admitted that she had performed work in September 2007 involving
lifting a man who weighed 150 pounds. Although Bergeron
resigned from the position due to pain in her leg, the ALJ
reasonably concluded that “the fact that she was able to perform
such physically demanding tasks, even for a short time, shows
that she retains some ability to perform less physically
demanding work.” T r . 419. In fact, Bergeron admitted in her
testimony that she could perform secretarial work but complained
that she could not find a position in her geographical area.
19 The ALJ was permitted to consider Bergeron’s statement in
assessing her RFC. See Graham v . Barnhart, 02-CV-243-PB, 2006
WL 1236837, at *7 (D.N.H. May 9, 2006) (“[The claimant’s]
testimony that she cared for her granddaughter several days a
week supports [the ALJ’s] determination that she retained the
RFC to stand or walk for six hours in an eight-hour day.”).
Because D r . Francke’s opinion, medical evidence, and
Bergeron’s own statement about her functional abilities support
the ALJ’s RFC assessment, the ALJ’s finding that Bergeron could
perform sedentary work is supported by substantial evidence.
B. The ALJ’s Failure to Discuss Dr. Jaffe’s Opinion
Bergeron also argues that the ALJ erroneously failed to
indicate that she had considered the opinion of D r . Jaffe, a
state agency consultant who completed an RFC assessment based on
a review of Bergeron’s medical records. D r . Jaffe opined that
Bergeron was capable of light work with occasional postural
limitations.
Bergeron is correct that an ALJ “must consider and evaluate
any assessment of the [claimant’s] RFC by a State Agency medical
or psychological consultant.” SSR 96-6p, 1996 WL 374180, at *4
(July 2 , 1996). Here, the ALJ failed to indicate that she
considered D r . Jaffe’s RFC assessment, as she was required to
do. An ALJ’s error, however, does not warrant a remand “if it
will amount to no more than an empty exercise.” Ward v . Comm’r
20 of Soc. Sec., 211 F.3d 6 5 2 , 656 (1st Cir. 2000). Because D r .
Jaffe opined that Bergeron was not disabled, the outcome of the
ALJ’s disability determination would have been the same even if
the ALJ had afforded his opinion significant weight. In fact,
the only difference would have been a finding that Bergeron was
capable of a greater range of work activity than the ALJ
assessed. Accordingly, no actual harm stemmed from the ALJ’s
failure to consider D r . Jaffe’s opinion and a remand is not
warranted on this basis. 3
C. The ALJ’s Treatment of Dr. Ford’s Opinion
Although Bergeron does not fully develop the argument, she
also contends that the ALJ improperly rejected the opinion of
Dr. Ford, her treating provider. D r . Ford opined that Bergeron
could lift less than ten pounds only occasionally, could sit for
about two hours in an eight-hour workday, and could stand or
walk for two hours in an eight-hour workday. The ALJ gave no
weight to D r . Ford’s opinion. Substantial evidence supports the
ALJ’s decision.
3 Bergeron’s reliance on Fortin v . Astrue, N o . 10-cv-441-JL, 2011 WL 2295171 (D.N.H. May 1 8 , 2011), is misguided. In Fortin, the ALJ’s consideration of the unaddressed state agency opinion could have changed the outcome of the disability determination because the consultant opined that the claimant’s functional abilities were more restricted than the ALJ had found. See id. Accordingly, a remand of the case to the Commissioner was not necessarily an empty exercise. See id.
21 A treatment provider’s opinion must be given controlling
weight if it is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in [the] case record.” 20
C.F.R. § 404.1527(c)(2). The ALJ “may reject a treating
physician’s opinion as controlling if it is inconsistent with
other substantial evidence in the record, even if that evidence
consists of reports from non-treating doctors.” Coggon v .
Barnhart, 354 F.Supp.2d 4 0 , 52 (D. Mass. 2005) (internal
quotation marks and citations omitted); see 20 C.F.R. §
404.1527(c)(2).
When a treating physician’s opinion is not entitled to
controlling weight, the ALJ determines the amount of weight
based on factors that include the nature and extent of the
physician’s relationship with the applicant, whether the
physician provided evidence in support of the opinion, whether
the opinion is consistent with the record as a whole, and
whether the physician is a specialist in the field. 20 C.F.R. §
404.1527(c)(1-6). In addition, the ALJ must give “good” reasons
for the weight given to treating physician’s opinions. Id.; see
also Soto-Cedeño v . Astrue, 380 Fed. Appx. 1 , 4 (1st Cir. 2010).
Here, the ALJ gave no weight to D r . Ford’s opinion that
Bergeron was limited to a less than sedentary RFC. The ALJ
reasoned that D r . Ford’s assessment was inconsistent with
22 Bergeron’s own statements about her functional capacity and D r .
Francke’s opinion. Specifically, the ALJ noted that D r . Ford
opined that Bergeron was only capable of occasionally lifting
less than ten pounds, whereas the record demonstrated that
Bergeron was “capable of far more,” given that for a short
period of time she was able to do work involving lifting a man
who weighed 150 pounds. As the ALJ noted, moreover, D r . Ford’s
assessment was inconsistent with D r . Francke’s observations and
relatively normal exam findings. Accordingly, the ALJ was
justified in giving no weight to D r . Ford’s opinion.
IV. CONCLUSION
For the foregoing reasons, Bergeron’s motion to reverse the
decision of the Commissioner (Doc. N o . 7 ) is denied. The
Commissioner’s motion to affirm (Doc. N o . 8 ) is granted. The
clerk shall enter judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
June 7 , 2012
cc: D. Lance Tillinghast, Esq. Gretchen Leah Witt, AUSA