MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE COMMISSIONER AND PLAINTIFF'S MOTION TO REVERSE OR REMAND

RICHARD STEARNS, District Judge

On April 7, 2004, George Sicalis filed an application for Social Security Disability Income benefits. Sicalis alleged an inability to work since September 1, 2001, because of Tourrette's Syndrome, symptoms of depression, and complications from hip replacement surgery. On June 1, 2004, the application was administratively denied. On January 3, 2006, Administrative Law Judge (ALJ) Stephen Fulton took evidence on Sicalis' appeal. Sicalis and a vocational examiner (VE) testified at the hearing. On April 27, 2006, the ALJ issued a written decision denying the appeal. The ALJ found that Sicalis retained the capacity to return to his past relevant work as a dispatcher. On August 28, 2006, the Appeals Council denied Sicalis' request for further review, affirming the ALJ's opinion as the final decision of the Commissioner.

On September 14, 2006, Sicalis brought this action in the district court pursuant to 42 U.S.C. § 405(g). Sicalis argues that the ALJ erred in terminating his claim at Step 4 of the required "sequential step analysis" by failing to contact his treating physician to clarify an opinion that Sicalis was totally disabled. On April 6, 2007, the Commissioner filed a cross-motion seeking an affirmance of the ALJ's decision. The court heard oral argument on the motions on May 31, 2007.

BACKGROUND

In evaluating a disability claim, an ALJ is required to follow the sequential step analysis prescribed by 20 C.F.R. § 404.1520. The ALJ must first determine whether a claimant was gainfully employed prior to the onset of the disabling condition. The ALJ must then determine whether the claimant suffers from a severe impairment limiting his ability to work. If the impairment is the same as, or equal in its effect to, an impairment (or combination of impairments) listed in Appendix 1 of Subpart P of the regulations, the claimant is presumptively deemed disabled. If the impairment is not covered by Appendix 1, the fourth step of the analysis requires that the claimant prove that his disability is sufficiently serious to preclude a return to his former occupation. Goodermote v. Sec'y of Health and Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). Only if he meets that burden is the Commissioner at the fifth step obligated to prove that there are other jobs in the national economy that the claimant could nonetheless perform. Gonzalez Perez v. Sec'y of Health, Educ. and Welfare, 572 F.2d 886, 888 (1st Cir. 1978). The findings of the Commissioner are conclusive so long as they are supported by substantial evidence and so long as the Commissioner has applied the correct legal standard. 42 U.S.C. § 405(g); Manso-Pizarro v. Sec'y of Health and Human Servs., 76 F. 3d 15, 16 (1st Cir. 1996).

The ALJ Fulton found at Step 1 and 2 of the sequential step analysis that Sicalis had not been gainfully employed during the applicable insurance period and that he suffered from a combination of impairments that were severe.

[Sicalis] is a forty-eight year old individual with a high school education. His past work experience includes employment as a parking lot shuttle driver, hotel shuttle driver and dispatcher. He alleges that he became disabled on September 1, 2001 due to Tourrette's [S]yndrome, a hip replacement and depression.

. . .

The medical records submitted in support of the application establish that the claimant has Tourrette's [S]yndrome, a left hip replacement and depression. The resulting pain and restrictions caused by the claimant's impairments significantly limit his ability to perform such basic work activities as standing, walking, responding appropriately to supervision, co-workers and usual work situations and dealing with changes in a routine work setting. Accordingly, I find that the claimant has established that he has a combination of medically determinable impairments that are severe within the meaning of the Act and Regulations.

After determining at Step 3 that Sicalis' impairments did not medically equal an impairment listed in Appendix 1 of the regulations, the ALJ moved to Step 4 of the analysis, which requires that the ALJ determine whether a claimant retains the residual functional capacity to perform his or her past relevant work. The ALJ summarized the relevant medical evidence as follows.

The medical records provided for review date back to February of 2004, when the claimant was admitted to Brockton Hospital for depression. This treatment note indicates that the claimant was experiencing situational depression due to being homeless and the loss of his job. He was diagnosed with adjustment disorder and, as of the following day, was noted to be feeling better after one night in the hospital. The claimant was evaluated for discharge, at which time he became upset and stated that he would just come back if they discharged him. The claimant was encouraged to seek outpatient treatment and transitional housing and cautioned against using the hospital as a means of escaping shelter life. Thereafter, the claimant was discharged and began outpatient therapy. He reported a history of alcohol and cocaine abuse, but had been clean and sober for the past five years. In March of 2004, the claimant sought help with transitional housing and attended group therapy through May 11, 2004. He reported improvement in his depression with medication management and a physical examination on April 26, 2004 was entirely within normal limits.

There are no further records until November of 2004, when the claimant requested placement at the Chelsea Soldiers' Home though the Veterans' Administration. He eventually achieved placement there and reported feeling much better as of February 25, 2005, as reported to staff psychiatrist Edward Rivera, M.D. The claimant stated that "he no longer feels depressed," was sleeping well and had good concentration, energy and appetite. He continued to maintain his sobriety and Dr. Rivera diagnosed adjustment disorder, depressed type — no longer depressed. The claimant was also evaluated by a counselor at the VA, Luis Norat, to whom he also reported "feeling well . . . [with] a positive outlook." Mr. Norat stated that the claimant "admits that most of the anxiety and depressive features of this disorder were situational." Group therapy records dating from February of 2005 through November of 2005 indicate that the claimant did well, his Tourrette's syndrome was well controlled with medication and his depression had improved since moving to the Soldiers' Home.

The record also contains a report and brief note from Edward Rivera, M.D. dated October 27, 2005 and November 4, 2005. Dr. Rivera states that he feels the claimant is disabled from work due to his depression; specifically due to significant impairments in social and occupational functioning. This opinion is contradicted by the treatment notes from the VA summarized above, which indicate that the claimant has made significant progress since overcoming homelessness, has remained clean and sober, and has reported no difficulties with his Tourrette's [S]yndrome. Moreover, the claimant's depression has improved with medication and regular therapy and he has been compliant and cooperative in his treatment program, including regular attendance and participation in group therapy sessions. Finally, the ultimate determination of disability is reserved to the Commissioner and Dr. Rivera's opinion is not supported by any narrative explanation as to why he feels the claimant is totally disabled from all work; nor does Dr. Rivera explain why his opinion contrasts sharply with the treatment notes through November of 2005, which indicate significant improvement in the claimant's condition.

The ALJ then made an assessment of Sicalis' residual functional capacity, holding that he retained the ability

to lift and carry up to twenty pounds occasionally and up to ten pounds on a more frequent basis; to sit six hours; and to stand and walk up to thirty minutes at a time, for a total of two hours in an average, eight-hour work day. The claimant should limit push-pull movements or operation of foot controls with his left lower extremity to an occasional basis, as well as postural activities, such as climbing, balancing, stooping, kneeling, crouching and crawling due to his left hip replacement. The claimant should also avoid concentrated exposure to extreme cold and workplace hazards. He remains capable of understanding and remembering simple instructions; concentrating for two-hour periods over the course of an eight-hour day; interacting appropriately with co-workers and supervisors; and adapting to routine changes in a work setting. These findings are consistent with the record as a whole. . . . There is no credible objective evidence to contradict their findings, other than the brief note authored by Dr. Rivera, which is not entitled to persuasive weight for the reasons stated above.

Finally, I have also considered the claimant's statements made at the hearing and in disability reports submitted in conjunction with his application. . . . I find the claimant's statements concerning his impairments and their impact on his ability to work are considerably more limited and restricted than is established by the medical evidence. His treatment records indicate that his depression has improved in recent months and his Tourrette's [S]yndrome is well-controlled with medication. Finally, there is no record of any medical treatment sought for left hip or leg pain submitted in support of this claim. He has been able to attend and interact with others in regular group therapy sessions several times a month; he is functioning independently in his activities of daily living; he has had no reported difficulties living at the Soldiers' Home with other veterans; and he has been compliant with his treatment program. Therefore, his statements are inconsistent with the objective evidence which fails to demonstrate the existence of pain and limitations of such severity as to preclude the claimant from performing any work on a regular and continuing basis. It is for these reasons I find that the claimant is not fully credible.

The ALJ then determined that Sicalis was not disabled within the meaning of the Social Security Act, referencing the opinion of the VE who testified at the hearing.

At the hearing, the impartial vocational expert testified concerning the claimant's past relevant work. He took into account both the claimant's description of his job duties, as well as information provided by the Dictionary of Occupational Titles regarding how these jobs are generally performed in the national economy. He then classified the claimant's past work as follows: (1) parking lot shuttle driver — light and semi-skilled; (2) hotel shuttle driver — heavy and semi-skilled; and (3) dispatcher — sedentary and semi-skilled. I then asked the vocational expert to consider an individual of the same age, education, work experience and residual functional capacity as the claimant. In so doing, he testified that, based upon the claimant's residual functional capacity and the physical and mental demands of his prior work, the claimant could return to his past relevant work as a dispatcher, both as he performed it in the past and as this job is generally performed in the national economy. Social Security Ruling 82-61 states that, "where the evidence shows that a claimant retains the [residual functional capacity] to perform the functional demands and job duties of a particular past relevant job as he or she actually performed it, the claimant should be found to be `not disabled'."

In accordance with the testimony of the vocational expert, I find that the claimant retains the residual functional capacity to perform his past relevant work as a dispatcher.

Sicalis basically concurs with the ALJ's summary of his medical history, although he gives more emphasis to the following facts. Sicalis was initially admitted to the Brockton Veterans' Administration Hospital (Brockton VA) on February 12, 2004, because of depression with suicidal ideation. He was discharged on February 17, 2004, after being hospitalized for six days. On April 26, 2004, Sicalis was diagnosed as suffering from adjustment disorder with depressed mood and Tourrette's Syndrome, with a level of functioning rated at 48 on the Global Assessment of Functioning (GAF) scale. As a result, he was admitted to the Reach Program at the Brockton VA, a three month inpatient stabilization program for homeless veterans with mental health problems.

After being released from the Reach Program, Sicalis transferred to the VA Medical Center in Boston (Boston VA). The February 25, 2005 transfer note indicated that Sicalis still suffered from the adjustment disorder. The note also indicated a history of substance abuse. The Boston VA prescribed weekly group therapy sessions, which Sicalis attended from February 25, 2005 to November 3, 2005.

On September 8, 2005, Dr. Rivera noted Sicalis was "feeling more depressed lately with poor sleep and concentration; appetite fair and energy level `a little low.'" He assigned Sicalis a somewhat improved GAF score of 55. On October 27, 2005, and again on November 4, 2005, Dr. Rivera opined that Sicalis "is unable to work as he has significant impairment in social/occupational functioning," has a "marked impairment in his ability to maintain attention and concentration," and would be expected to "miss at least three days of work a month." Dr. Rivera also noted that Sicalis suffered from moderate restrictions in fifteen other work-related categories.

During the hearing, the ALJ posed the following questions to the VE.

Q. . . . Let's assume a person of the same age, education, and work history. And let's assume this person could lift 20 pounds occasionally, 10 pounds frequently. This person would stand or walk for 30 minutes at one time up, up to two hours over an eight hour period. This person could sit six hours over an eight hour period. This person could only occasionally push, pull, or use foot controls with the left lower extremity, could only occasionally climb, balance, stoop, kneel, crouch, or crawl. This person would need to avoid concentrated exposure to extreme cold and to hazards. And let's assume this person could understand and remember simple instructions, could concentrate for two hour periods over an eight hour day, could interact with coworkers and supervisors, and could adapt to changes in the work setting. With that with those abilities and limitations, first, could such a person perform Mr. Sicalis' past work?

A. He would be able, in my opinion, not be able to do any of the jobs that involve the driving, but that he would be able to do the dispatching type work and some security type jobs, certainly would be able to perform from his past jobs.

Q. All right. Now, let me just take that same question and instead of being able to concentrate for two hour periods over eight hours, let's assume this person had a marked or serious limitation in the ability to maintain attention and concentration, and that this person would require, over the course of eight hours, unscheduled breaks that could total two or more hours. With those changes or additional limitations, could such a person perform Mr. Sicalis' past work?

A. In my opinion, Your Honor, he would not be able to perform any of his past employment.

Q. With, with those changes could that person perform any other jobs in the national or regional economy?

A. In my opinion, Your Honor, he would not be able to perform any jobs in the national or regional economy.

Sicalis' attorney then asked the VE the following questions.

Q. Hypothetical one and three, the jobs that you have listed are basically entry level positions?

A. Yes, they are entry level positions.

Q. Okay. His treating physician said that he would expect him to miss at least three days of work a month. Would that be, would that be, would that be relevant to him keeping that, a position, those positions?

A. In my opinion, he would not be able to keep those positions.

Q. So that'd be an absenteeism, right, that would be unacceptable?

A. Way beyond what's acceptable, right.

DISCUSSION

[g]enerally, . . . give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.

Sicalis argues that, having perceived a conflict between Dr. Rivera's treatment notes and his disability diagnosis, the ALJ was obligated by 20 C.F.R. §§ 404.1512(e) to seek clarification. The regulation reads as follows.

(e) Recontacting medical sources. When the evidence we receive from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled, we will need additional information to reach a determination or a decision. To obtain the information, we will take the following actions.

(1) We will first recontact your treating physician or psychologist or other medical source to determine whether the additional information we need is readily available. We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. We may do this by requesting copies of your medical source's records, a new report, or a more detailed report from your medical source, including your treating source, or by telephoning your medical source. In every instance where medical evidence is obtained over the telephone, the telephone report will be sent to the source for review, signature and return.

The Commissioner argues that the ALJ's decision is supported by substantial evidence and that the regulations cited by Sicalis do not apply in his case. The Commissioner argues that 20 C.F.R. § 404.1527(d)(2) specifically states that a treating physician's opinion will be credited only if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and [is] . . . not inconsistent with the other substantial evidence in [a claimant's] case record." The ALJ specifically found that Dr. Rivera's disability opinion was not supported by his own treatment notes, by the records of the VA counselor, or by the group therapy session notes. Similarly, the Commissioner argues that 20 C.F.R. §§ 404.1512(e) applies only when there are critical gaps in the record that the treating physician can fill. The Commissioner argues that the ALJ disregarded Dr. Rivera's opinion not because of a gap in the records, but because Dr. Rivera's opinion regarding Sicalis' disability was contradicted by his own treatment notes.

As the Commissioner correctly points out, "[i]f a treating physician's opinion is inconsistent with other authoritative evidence in the record, the conflict is for the Commissioner — and not the court — to resolve." See August v. Astrue, 2007 WL 737766 at *6 (D. Mass. March 8, 2007), citing Rodríguez v. Sec'y of Health and Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). Had the ALJ based his opinion solely on the inconsistency between Dr. Rivera's treatment notes and his opinion, the court would be inclined to think that it would have been desirable, even necessary, for the ALJ to seek clarification. The ALJ's opinion, however, goes much further. He based his decision on the record as a whole, including the notes of Sicalis' VA counselor and the records of Sicalis' group therapy sessions. Moreover, he gave appropriate weight to his evaluation of Sicalis' testimony, which he found less than credible in some material aspects. The weight of the evidence taken as a whole provides substantial support for the ALJ's ultimate decision. It will therefore be affirmed.

ORDER

For the foregoing reasons, Sicalis' motion to reverse or remand the Commissioner's decision is DENIED. The Commissioner's motion for an order of affirmance is ALLOWED.

SO ORDERED.