Serrano v. SSA CV-09-332-JL 7/15/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Angel Luis Serrano, J r .
v. Civil N o . 10-cv-394-JL Opinion N o . 2011 DNH 114
Michael J. Astrue, Commissioner, Social Security Administration
MEMORANDUM ORDER
This is an appeal from the denial of a claimant’s
application for Social Security Disability Benefits. See 42
U.S.C. § 405(g). The claimant, Angel Luis Serrano, Jr., contends
that the administrative law judge (“ALJ”) incorrectly found that
although he suffered from a severe impairment due to a “crush
injury” to his left ankle, Admin. R. 10; 1 see 20 C.F.R. §§
404.1520 (a),(c), he retained the residual functional capacity2
1 The court will reference the administrative record (“Admin. R.”) to the extent that it recites facts contained i n , or directly quotes documents from, the record. C f . Lalime v . Astrue, N o . 08-cv-196-PB, 2009 WL 995575, at *1 (D.N.H. Apr. 1 4 , 2009). 2 “Residual Functional Capacity” is defined as “an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR N o . 96-8p, 1996 WL 374184, at *1 (July 2 , 1996). (“RFC”) to perform light work,3 Admin. R. 1 2 ; see 20 C.F.R. §
404.1520(a)(4)(iv), and that given his age, education and work
experience, there were a significant number of job opportunities
available to him. Admin. R. 1 4 ; see 20 C.F.R. §
404.1520(a)(4)(v); p t . 4 0 4 , subpt. P, App. 2 , § 202. Serrano
contends that the ALJ erred in formulating his RFC because:
(1) the ALJ improperly relied on the RFC assessment of a non-treating consulting physician and ignored portions of the medical source statement of Serrano’s treating physician that were inconsistent with a finding that Serrano was not disabled, see C l . B r . 5 , see generally 20 C.F.R. §§ 404.1502, 404.1527(d); SSR N o . 96-2p, 1996 WL 374188 (July 2 , 1996),
(2) the ALJ’s credibility determination was unsupported by the record, see C l . B r . 7-8, and,
(3) the ALJ did not properly consider Serrano’s other non-severe impairments. See id. at 9.
The Commissioner asserts that the ALJ’s findings are supported by
substantial evidence in the record, and moves for an order
affirming his decision. This court has subject-matter
jurisdiction under 28 U.S.C. § 1331 (federal question) and 42
U.S.C. § 405(g) (Social Security). After a review of the
administrative record the court grants Serrano’s motion and
denies the Commissioner’s motion.
3 The ALJ additionally limited Serrano’s ability to stand and walk to a total of four hours per day. He also concluded that Serrano could only push, pull and perform certain postural activities occasionally. Admin. R. 1 2 .
2 I. APPLICABLE LEGAL STANDARD
The court’s review under Section 405(g) is “limited to
determining whether the ALJ deployed the proper legal standards
and found facts upon the proper quantum of evidence.” Nguyen v .
Chater, 172 F.3d 3 1 , 35 (1st Cir. 1999); see Simmons v . Astrue,
736 F. Supp. 2d 3 9 1 , 399 (D.N.H. 2010). If the ALJ’s factual
findings are supported by substantial evidence in the record,
they are conclusive, even if the Court does not agree with the
ALJ’s decision and other evidence supports a contrary conclusion.
See Tsarelka v . Sec’y of Health & Human Servs., 842 F.2d 529, 535
(1st Cir. 1988). The ALJ is responsible for determining issues
of credibility, resolving conflicting evidence, and drawing
inferences from the evidence in the record. See Rodriguez v .
Sec’y of Health & Human Servs., 647 F.2d 2 1 8 , 222 (1st Cir.
1981); Pires v . Astrue, 553 F. Supp. 2d 1 5 , 21 (D. Mass. 2008)
(“resolution of conflicts in the evidence or questions of
credibility is outside the court’s purview, and thus where the
record supports more than one outcome, the ALJ’s view prevails”).
The ALJ’s findings are not conclusive, however, if they were
“derived by ignoring evidence, misapplying the law, or judging
matters entrusted to experts.” Nguyen, 172 F.3d at 3 5 . If the
ALJ made a legal or factual error, the decision may be reversed
and remanded to consider new, material evidence, or to apply the
3 correct legal standard. Manso-Pizarro v . Sec’y of Health & Human
Servs., 76 F.3d 1 5 , 1 6 , 19 (1st Cir. 1996); see 42 U.S.C. §
405(g).
II. BACKGROUND
Pursuant to this court’s local rules, the parties filed a
Joint Statement of Material Facts (document n o . 9 ) , which is part
of the record reviewed by the court. See LR 9.1(d). This court
will briefly recount the key facts and otherwise incorporates the
parties’ joint statement by reference.
Briefly, Serrano severely injured his left ankle on April 5 ,
2006 when a heavy piece of equipment fell on his leg. Admin. R.
233-36. Serrano had multiple surgeries to repair the ankle that
month, see id. at 453, 463, 475, 6 2 4 , including skin graft
surgery on his ankle on April 1 1 , 2006. See id. at 475-76.
Serrano reportedly “did quite well until August of 2006 when he
had a syndesmotic4 screw removed” from his ankle. See id. at
624; see also id. at 267 (physical therapist commented that the
outlook for Serrano’s eventual recovery was positive so long as
he followed up with recovery regimen); 964 (ankle surgeon, D r .
4 ”Syndesmotic” refers to connective tissue, “particularly the ligaments.” Dorland’s Illustrated Medical Dictionary, 1845- 46 (31st ed. 2007).
4 Timothy Bhattacharyya, observed in June 2006 that Serrano was
“doing well” with minimal pain).
Surgery to remove screws from Serrano’s ankle was performed
on August 8 , 2006 and reportedly proceeded without incident. See
id. at 5 8 8 , 601. On August, 1 8 , 2006, however, Serrano went to
the emergency room with swelling and “drainage” from the site of
his ankle surgery. See id. at 304. He was diagnosed with having
a possible infection that appeared to respond to antibiotic
treatment, and thus Serrano was released to light duty work by
Dr. Bhattacharyya beginning on September 2 5 , 2006. See id. at
988. Serrano, however, continued to have problems with potential
infections at the wound site, see id. at 3 6 8 , 620-23, 9 6 8 , and he
had further surgery in November 2006 to remove most of the
hardware in his ankle and clean out possible infections. See id.
at 6 2 4 , 8 6 8 , 878-79. Serrano was referred to an infectious
disease specialist, D r . Benjamin Linas, who indicated that the
“removal of hardware and washout” included a surgical “debriding5
down to bone.” See id. at 940-41. Although Serrano was
described at discharge as “ambulating without difficulty,” see
id. at 6 2 4 , he spent many weeks receiving intravenous antibiotics
5 Debridement” is “the removal of foreign material and devitalized or contaminated tissue from or adjacent to a traumatic or infected lesion until surrounding healthy tissue is exposed.” Dorland’s Illustrated Medical Dictionary, 481 (31st ed. 2007).
5 at in an inpatient rehabilitation center. See id. at 637-38,
865. He was finally released from inpatient care on December 1 5 ,
2006. See id. at 636.
Although Serrano subsequently returned to work, see id. at
1054, he went to Eliot Hospital in June 2007 for treatment of an
infection at the site of his skin graft which was diagnosed as
“cellulitis6 of [the] leg.” See id. at 328. Serrano continued
to have difficulty at the wound site, and on June 1 3 , 2007, D r .
Bhattacharyya observed that after Serrano “returned to more
aggressive activities,” he experienced “a lot of serous weeping
from the wound,” and that “clearly the skin graft has not been
durable enough to hand[le] his level of activity.” See id. at
994.
Serrano was eventually referred to D r . John Yost, a
rheumatologist. See id. at 1015. D r . Yost diagnosed Serrano
with “advanced limitation in motion of the left ankle consistent
with post-traumatic osteoarthritis.” See id. at 1016-17. D r .
Yost recommended that Serrano take Prednisone given that he had
6 “Cellulitis” is “an acute, diffuse, spreading, edematous, suppurative inflammation of the deep subcutaneous tissues, . . . usually caused by infection of a wound, burn, or other cutaneous lesion by bacteria.” Dorland’s Illustrated Medical Dictionary, 330 (31st ed. 2007).
6 an “excellent response” to steroid treatments in the past.7 See
id. at 1016. Serrano reportedly responded well to the steroid
treatment and on August 7 , 2007, D r . Yost recommended a “[w]ork
release for light duty, primarily supervisory activities. He
will need to continue to limit prolonged walking, standing, [and]
repetitive motion of the left ankle.” Id. at 1023.
Serrano’s symptoms returned, however, in September 2007
after he ceased taking steroids. D r . Yost accordingly resumed
Serrano’s steroid therapy. See id. at 1024. D r . Yost later
noted that by October 1 6 , 2007, Serrano’s issues at the wound
site had stabilized even though Serrano had lingering pain and
stiffness in his ankle. See id. at 1027. Serrano continued to
see D r . Yost until February 2008, when D r . Yost noted that
Serrano had “reached a medical end-point, but will need continued
disease-modifying therapy to prevent relapse of psoriasiform skin
lesions and/or increase in ankle or other joint synovitis.” See
id. at 1041. A month later, D r . Yost completed a “Medical Source
Statement” indicating, inter alia, that although Serrano retained
the ability to lift up to twenty pounds occasionally and ten
7 “Prednisone” is a “synthetic glucocorticoid [steroid] . . . administered orally . . . as an antiinflammatory and immunosuppressant.” Dorland’s Illustrated Medical Dictionary, 800, 1531 (31st ed. 2007). Serrano was also prescribed “Plaquenil,” a medicine used to treat Lupus, as it was suspected at that time that he might also suffer from that disease. Id. at 894, 1477.
7 pounds frequently, because of his “left ankle osteoarthritis,” he
retained the maximum ability to sit, stand, and walk for only six
hours per day, and needed to take unscheduled breaks throughout
the workday. See id. at 1168.
Serrano filed an application for Disability Insurance in
April 2008 claiming he became disabled in May 2007 due to a
“crushed [left] ankle, post traumatic osteoarthritis left ankle
with [psoriasiform] ulceration at the skin graft site.” See
Admin. R. 112-116, 131-149. Serrano reported that he was no
longer able to work due to “[l]imited . . . ankle motion” and an
inability to stand for a “prolonged period of time.” Id. at 132.
His application for benefits was denied in August 2008, id. at
4 6 , and Serrano appealed that decision to the ALJ. Id. at 5 5 ;
see generally 20 C.F.R. § 405.301. After a hearing in March
2010, see id. at 20-42, the ALJ concluded that Serrano was not
disabled and thus not entitled to benefits. Admin. R. 8-15; see
generally 20 C.F.R. § 404.1520.
The ALJ found that Serrano was severely impaired due to a
“status post left ankle fracture.” Admin. R. 1 0 ; see generally
20 C.F.R. § 404.1520(a)(4)(ii). He denied benefits, however,
because he concluded that despite his impairments, Serrano
maintained a residual functional capacity “to perform light work
. . . except with the need to limit standing and walking to 4
8 hours total during the day and to limit pushing, pulling and
postural activities to occasional [sic].” Id. at 1 2 ; see
generally, 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1567(b).
The ALJ concluded that Serrano was unable to perform his
past work as a “health club maintenance worker, forklift
operator, painter and painter/supervisor.” Id. at 1 4 .
Nevertheless, the ALJ determined that Serrano was not disabled
because he was capable of performing light work with some
limitations, and thus retains the ability to perform jobs that
exist in the entire light unskilled job base. Id. at 14-15.
After the Decision Review Board affirmed the findings of the
ALJ,8 this appeal followed.
III. ANALYSIS
A five-step process is used to evaluate an application for
social security benefits. 20 C.F.R. § 404.1520(a)(4). The
applicant bears the burden through the first four steps to show
8 On review, the Decision Review Board affirmed the ALJ’s order, Admin. R. 1 ; see generally 20 C.F.R. § 405.405, rendering it a final decision of the Commissioner appealable to this court. See 20 C.F.R. § 405.420(b).
9 he is disabled.9 Freeman v . Barnhart, 274 F.3d 606, 608 (1st
Cir. 2001). At the fifth step, the Commissioner bears the burden
of establishing that a claimant has the residual functional
capacity to perform other work that may exist in the national
economy. Id.; see also 20 C.F.R. § 404.1520(a)(4)(v); Heggarty
v . Sullivan, 947 F.2d 9 9 0 , 995 (1st Cir. 1991). The ALJ’s
conclusions at steps four and five are informed by his assessment
of a claimant’s RFC, which is a description of the kind of work
that the claimant is able to perform despite his impairments. 20
C.F.R. §§ 404.1520(a)(4), 404.1545.
Serrano primarily finds fault with the ALJ’s decision not to
adopt the RFC assessment of his treating rheumatologist, D r .
Yost, and instead rely on the assessment of a state agency
consulting physician, D r . Hugh Fairley. Cl. Br. 5.
On March 1 0 , 2008, D r . Yost completed a “Medical Source
Statement” assessing Serrano’s work capabilities. Admin. R.
1168-70. He opined that although Serrano had no limits on his
9 Specifically, the claimant must demonstrate that: (1) he is not engaged in substantial gainful activity; (2) he has a severe impairment; ere i (3) the impairment meets or equals a specific impairment listed in the Social Security regulations; or (4) the impairment prevents or prevented him from performing past relevant work. The Social Security Act defines disability 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 12 months.” 42 U.S.C. § 423(d)(1)(A).
10 ability to sit during a typical workday, he could only stand and
walk less than two hours and had a maximum combined ability to
sit, stand or walk of only six hours per day. See id. at 1168.
Dr. Yost also stated that Serrano would need to shift at will
from sitting to standing or walking and that he would need to
take unscheduled breaks during the day.10 See id. Finally, D r .
Yost stated that if Serrano had a job that required “prolonged
standing or walking,” he would miss work more than three days per
month. See id. at 1170.
Dr. Fairley later completed a residual functional capacity
form11 in August 2008. Admin. R. 1176-83. In that form, D r .
Fairley stated that his opinion did not differ significantly from
those offered by Serrano’s treating physicians. He then cited
Dr. Yost’s August 2007 work release, but not D r . Yost’s March
2008 evaluation, as supporting evidence. See id. at 1182.
Although D r . Fairley made a number of findings similar to D r .
10 Yost also opined that Serrano was limited in his abilityDr. to crouch and squat, and that he would have to limit his exposure to heat, cold, and humidity. See id. at 1169-70. 11 Although D r . Fairley’s form was entitled a “Physical Residual Functional Capacity Assessment,” it is in reality a “medical source statement” as only the adjudicator, not a consulting physician, can make a true RFC determination. See SSR 96-5p, 1996 WL 374183, at *4-*5 (July 2 , 1996).
11 Yost’s, there were some significant variations.12 Compare id. at
1168-70 (Dr. Yost) with id. at 1176-83 (Dr. Fairley). For
example, both physicians opined that Serrano was capable of
lifting twenty pounds occasionally and ten pounds frequently and
that Serrano possessed no manipulative limitations. Notably,
however, D r . Fairley opined that Serrano could sit for a total of
six hours per day and stand or walk for a total of four hours per
day, and thus function for a complete eight hour day. Id. at
1177. D r . Fairley did not state that Serrano needed to be able
to shift at will or take unscheduled breaks. Compare id. at 1177
with id. at 1168. Although there were many similarities in the
physician’s analyses, the differences, and the ALJ’s treatment of
them, form the basis of Serrano’s claim of error.
In a step four analysis, the ALJ, having already determined
that the claimant suffers a severe impairment, makes a
determination of the claimant’s current functional capacity, or
RFC. If the RFC finding is supported by substantial evidence in
12 Some of these variations may be attributed to the different forms completed by each doctor. D r . Yost completed a “Medical Source Statement” evaluating Serrano’s ability to complete work related activities, Admin. R. 1168-70, while D r . Fairley completed a “Physical Residual Functional Capacity Assessment” form. Id. at 1176-83. Although both, in theory, seek to describe the same analysis (Serrano’s ability to work), they vary in content, with the medical source statement requiring a more detailed explanation of a claimant’s functional capacity. Notably, neither physician offered much elaboration in the areas of the report allowing for free form comment.
12 the record, it is conclusive. Nguyen, 172 F.3d at 3 5 . Findings
are not conclusive, however, “when derived by ignoring evidence,
misapplying the law, or judging matters entrusted to experts.”
Id.
Determination of a claimant’s RFC is an administrative
decision that is the responsibility of the Commissioner. See 20
C.F.R. § 404.1527(e)(2), SSR 96-5p, 1996 WL 374183, at * 2 . An
ALJ is prohibited, however, from disregarding relevant medical
source opinions. See SSR 96-5p, 1996 WL 374183, at * 5 . Where an
ALJ’s RFC assessment is at odds with a medical source opinion, he
must explain his reasons for disregarding that opinion. See 20
C.F.R. § 404.1527(d)(2); SSR 96-8p, 1996 WL 374184, at * 7 ;
Marshall v . Astrue, N o . 08-cv-147-JD, 2008 WL 5396295, at *4
(D.N.H. Dec. 2 2 , 2008) (reversing ALJ decision because treating
source opinion was “simply overlooked”).
In evaluating the nature and severity of an impairment, “[a]
treating physician’s opinion is generally afforded 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.” Lopes v .
Barnhart, 372 F. Supp. 2d 185, 193-94 (D. Mass. 2005) (quotations
and brackets omitted); see also SSR 96-2p, 1996 WL 374188, at * 1 -
* 2 ; 20 C.F.R. § 404.1527(d)(2); c f . Monroe v . Barnhart, 471 F.
13 Supp. 2d 203, 211 (D. Mass. 2007)(“Although opinions from
treating and examining physicians may be considered helpful, and
in many cases controlling, the hearing officer is only required
to make a decision that is supported by substantial evidence.”);
20 C.F.R. § 404.1527(d)(2). Greater weight is given to a
treating source “since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal
picture of [the claimant’s] medical impairment(s).” 20 C.F.R. §
404.1527(d)(2).
The ALJ’s decision must be reversed because his treatment of
Dr. Yost’s medical source opinion was fundamentally flawed.
Specifically, the ALJ only partially addressed D r . Yost’s medical
source statement, ignoring a few key conclusions regarding
Serrano’s functional capabilities contradicting both the ALJ and
Dr. Fairley’s RFC determination. C f . Nguyen v . Callahan, 997 F.
Supp. 179, 182 (D. Mass 1998) (an ALJ may not adopt one view of
the evidence without addressing conflicts in the evidence).
“[T]he First Circuit has held that an ALJ’s written decision need
not directly address every piece of evidence in the
administrative record” if it is cumulative of evidence already
discussed by the ALJ or fails to support the claimant’s position.
Lord v . Apfel, 114 F. Supp. 2d 3 , 13 (D.N.H. 2000). “At the same
time, the First Circuit and district courts within the circuit
14 have [also] held that an ALJ may not simply ignore relevant
evidence, especially when that evidence supports a claimant’s
cause.” Id. (citing cases).
The ALJ did mention that D r . Yost had examined Serrano and
indeed made reference to D r . Yost’s medical source statement.
Admin. R. 1 1 , 1 3 . But the ALJ barely analyzed key findings
standing in direct contradiction to his determination that
Serrano is not disabled. Specifically, the ALJ failed to
adequately discuss how D r . Yost’s conclusion that: (1) Serrano
could only sit/stand/or walk a total of six hours per day, and
(2) needed unscheduled breaks throughout the day, affected his
ability to work on a sustained and continuing basis. Id. at 1 1 ,
13 (ALJ opinion), 1168 (medical source statement).13
These omissions are significant because the ALJ’s decision
was based, in part, on testimony of a vocational expert. See id.
at 15 (decision), 35-38 (testimony). That expert, when given a
hypothetical RFC matching that ultimately adopted by the ALJ,
opined that there existed a number of jobs in the national
economy. See id. at 35-36. The vocational expert was also given
a hypothetical RFC by the ALJ purportedly matching the RFC of D r .
13 The ALJ mentioned Serrano’s inability to sit/stand/walk for a full work day in his Step Two discussion of Serrano’s severe impairments. The ALJ did not, however, address this information in the context of his Step Four and Step Five analysis. See id. at 1 1 , 1 3 .
15 Yost. See id. at 3 7 . Given that scenario, the vocational expert
stated that there would still be jobs available. That
hypothetical, however, was incomplete, as the ALJ never mentioned
that D r . Yost’s RFC included the ability to take unscheduled
breaks and that D r . Yost limited Serrano’s maximum combined
sit/stand/walk capability to six hours total in an eight hour
workday. See id. at 37 (transcript), 1168 (Dr. Yost medical
source statement). Serrano’s counsel later asked the vocational
expert about whether, given a hypothetical similar to that posed
by the ALJ, but including a maximum ability to sit/stand/walk/ of
six hours, Serrano could find a job. See id. at 38-39. The
vocational expert stated there would be no jobs available because
“[t]he six-hour combination of sitting and standing and walking
would be less than a full-time work capacity so there would be no
jobs.” See id. at 39. 14
14 Further, D r . Fairley grounded his RFC determination in part on D r . Yost’s August 2007 notes authorizing Serrano to return to work. Admin. R. 1023 (Dr. Yost), 1182 (Dr. Fairley). Those notes arguably only weakly support D r . Fairley’s RFC assessment, because although D r . Yost released Serrano, it was in a very limited way, namely, “light duty, primarily supervisory activities, he will need to continue to limit prolonged walking, standing, repetitive motion of the ankle.” See id. at 1023. Although not the basis for the court’s decision to reverse the ALJ, such weak support does undermine the ALJ’s decision to give great weight to D r . Fairley’s RFC assessment. Berrios Lopez v . Sec’y of Health & Human Servs., 951 F.2d 4 2 7 , 431 (1st Cir. 1991) (reports of consulting physician that “contain little more than brief conclusory statements or the mere checking of boxes” are entitled to relatively little weight).
16 A court must be able to determine whether the ALJ considered
contrary evidence and chose to discredit i t , or whether it was
“simply ignored.” Lord, 114 F. Supp. 2d at 14 (quotations
omitted). “For a reviewing court to be satisfied that an ALJ’s
decision was supported by substantial evidence, that decision
must take into account whatever in the record fairly detracts
from its weight.” Id. (quotations omitted). Although the ALJ
discussed potions of D r . Yost’s assessment supporting
determination that Serrano was severely impaired, he ignored key
conclusions regarding Serrano’s functionality.15 This was
15 Further, the ALJ noted that he “afford[ed] the opinion of State Agency reviewing physician D r . Fairley great weight in this case.” Admin. R. 1 3 . He only inferentially gave less weight to Dr. Yost’s medical source statement, stating “Dr. Yost did release the claimant to work and has not treated him for more than a year.“ Id. An ALJ is required to “always give good reasons in the notice of determination or decision for the weight given to a treating source’s medical opinion(s) . . . .” SSR 96- 2 p , 1996 WL 374188, at * 5 , see generally 20 C.F.R. § 404.1527(d)(2). The ALJ’s reasoning “must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source’s medical opinion . . . .” SSR 96-2p, 1996 WL 374188, at * 5 . The court concludes that the ALJ’s recitation was not sufficient to satisfy the requirement that an ALJ always give “good reasons” for refusing to adopt contrary treating physician opinions. Indeed, one cannot even discern from the face of the order that D r . Yost limited Serrano’s work capabilities to six hours per day, or that he take unscheduled breaks, and why the ALJ chose to disregard those conclusions. See SSR 96-2p, 1996 WL 374188, at * 5 .
17 error.16 C f . Brunel v . Barnhardt, N o . Civ.00-402-B, 2002 WL
24311, at *8-*9 (D.N.H. Jan. 7 , 2002) (ALJ cannot parse medical
evidence, accepting favorable evidence and ignoring unfavorable
evidence “without offering a principled reason”). The court
accordingly reverses the ALJ’s decision. Serrano’s remaining
claims of error will not be addressed at this time, as it is
unclear the extent to which they will arise on remand.17
16 The Commissioner argues that it is irrelevant that D r . Yost opined that Serrano could only sit/stand/walk for six hours per day because that finding directly contradicts D r . Yost’s opinion that Serrano had an unlimited ability to sit. From the face of the ALJ’s order, however, the court cannot discern the basis of the ALJ’s decision to ignore the functional significance of D r . Yost’s opinion. As such, remand is proper. See Lord, 114 F. Supp. 2d at 1 4 . 17 Serrano attempts to argue that an ALJ is per se prohibited from relying on a state agency consulting physician to formulate an RFC. There is precedent, however, allowing an ALJ to rely both exclusively on the assessments of non-testifying, non- examining physicians, see Berrios Lopez, 951 F.2d at 431-32, and on the assessment of a non-treating physician in lieu of a treating physician. See Tremblay v . Sec’y of Health & Human Servs., 676 F.2d 1 1 , 13 (1st Cir. 1982); Reeves v . Barnhart, 263 F. F Supp. 2d 1 5 4 , 161-62 (D. Mass. 2003). Conflicts between treating and non-treating, non-examining doctors are for the ALJ to resolve. Tremblay, 676 F.2d at 1 2 . The decision to resolve that conflict against the claimant should be affirmed if “that conclusion has substantial support in the record . . . .“ Id.; see Berrios Lopez, 951 F.2d at 431; c f . DiVirgilio v . Apfel, 21 F. Supp. 2d 7 6 , 77 (D. Mass. 1998).
18 IV. CONCLUSION
Pursuant to sentence four of 42 U.S.C. § 405(g), Serrano’s
motion to reverse and remand the Commissioner’s decision18 is
granted. The Commissioner’s motion to affirm the decision19 is
denied. The Clerk of Court is directed to enter judgment in
accordance with this order and close the case.
SO ORDERED.
Jo/eph N . Laplante U s ited States District Judge
Dated: July 1 5 , 2011
cc: Davis S.V. Shirley, Esq. T. David Plourde, Esq.
18 Document n o . 7. 19 Document n o . 1 0 .