Maldonado v. Berryhill

Full title: EDDIE ECHEVARRIA MALDONADO, Plaintiff, v. NANCY A. BERRYHILL, Acting…

Court: UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Date published: Sep 4, 2019

CIVIL ACTION NO. 18-11255-ADB (D. Mass. Sep. 4, 2019)

Opinion

CIVIL ACTION NO. 18-11255-ADB

09-04-2019

EDDIE ECHEVARRIA MALDONADO, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

BOWLER, U.S.M.J.

REPORT AND RECOMMENDATION RE: PLAINTIFF'S MOTION TO REVERSE OR REMAND THE DECISION OF THE COMMISSIONER (DOCKET ENTRY # 16); DEFENDANT'S MOTION TO AFFIRM THE COMMISSIONER'S DECISION (DOCKET ENTRY # 18)

BOWLER, U.S.M.J.

Pending before this court are cross motions by the parties, plaintiff Eddie Echevarria Maldonado ("plaintiff") and defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration ("the Commissioner"). Plaintiff seeks to reverse or remand the decision of the Commissioner pursuant to 42 U.S.C. § 405(g). (Docket Entry # 16). The Commissioner moves for an order to affirm the decision. (Docket Entry # 18). On March 4, 2019, this court conducted a hearing and thereafter took both motions (Docket Entry ## 16, 18) under advisement.

PROCEDURAL HISTORY

In early 2013, plaintiff filed an application for disability insurance benefits. (Docket Entry # 13-8, Tr. 529- 30). Plaintiff filed an additional application for supplemental security income ("SSI") in December 2013. (Docket Entry # 13-8, Tr. 538-46). In both applications, plaintiff alleged disability rendering him unable to work as of January 25, 2013. (Docket Entry # 13-8, Tr. 529, 538). The Social Security Administration ("SSA") denied both claims on June 27, 2014. (Docket Entry # 13-7, Tr. 442-55). Plaintiff then filed a request for reconsideration, which was denied on November 18, 2014. (Docket Entry # 13-7, Tr. 461-62, 466-76).

Plaintiff requested a hearing before an Administrative Law Judge ("AJL") on December 1, 2014. (Docket Entry # 13-7, Tr. 477-78). The AJL conducted a hearing on April 29, 2016. (Docket Entry # 13-5, Tr. 294-338). Both plaintiff and a vocational expert ("VE") testified at the hearing (Docket Entry # 13-5, Tr. 294-338). In an August 26, 2016 decision, the ALJ concluded that plaintiff was not disabled under 42 U.S.C. §§ 216(i), 223(d), 1614(a)(3)(A) for the period of January 25, 2013 through the date of the ALJ's decision. (Docket Entry # 13-2, Tr. 15-32).

Plaintiff requested a review of the ALJ's decision by the Appeals Council on October 21, 2016. (Docket Entry # 13-7, Tr. 526-28). The Appeals Council denied the request for review on May 7, 2018, thereby affirming the ALJ's decision as final. (Docket Entry # 13-2, Tr. 1-4). Plaintiff subsequently filed this action against the Commissioner pursuant to 42 U.S.C. § 405(g).

FACTUAL BACKGROUND

I. Plaintiff's Age, Education, and Work History

Plaintiff, born on October 30, 1967, was 45 years old on the date of his application for disability insurance benefits, and 46 years old on the date of his application for supplemental security income. (Docket # 13-8, Tr. 529, 538). He holds a high school diploma and has past relevant work experience as an auto parts salesperson and a handyman. (Docket Entry # 13-5, Tr. 306, 308-10). Plaintiff alleged an inability to work as of January 25, 2013 and claimed that he suffered from both physical and psychological conditions. (Docket Entry # 13-5, Tr. 311-23, 529) (Docket Entry # 13-8, Tr. 538).

II. Plaintiff's Medical History

A. Physical Conditions ¹

1 The record indicates that plaintiff suffers from numerous cardiac conditions, including coronary artery disease and ischemic heart disease. However, because these impairments do not form the basis for plaintiff's claims before this court, they are not addressed in detail.

On February 10, 2013, plaintiff was admitted to the emergency room at St. Luke's Memorial Hospital in Ponce, Puerto Rico for bilateral leg pain. (Docket Entry # 13-23, Tr. 1915-17). The attending physician, Alexandra Vega Lagares, M.D. ("Dr. Vega Lagares") observed no edema in plaintiff's extremities and attributed his discomfort to uncontrolled blood glucose levels. (Docket Entry # 13-23, Tr. 1916). Dr. Vega Lagares subsequently diagnosed plaintiff with peripheral neuropathy.² (Docket Entry # 13-23, Tr. 1916).

2 Peripheral neuropathy is a condition resulting from damage to peripheral nerves (nerves outside of the brain and spinal cord) that can result in symptoms such as numbness, burning or prickling sensations, and muscle weakness, among others. The Mayo Clinic, Peripheral neuropathy (2019), https://www.mayoclinic.org/diseases-conditions/peripheral-neuropathy/symptoms-causes/syc-20352061.

On April 23, 2013, plaintiff completed an adult function report.³ (Docket Entry # 13-9, Tr. 576-84). Therein, he reported that his physical ailments negatively impact his ability to care for himself, indicating that he struggles to raise and lower his legs when dressing and bathing. (Docket Entry # 13-9, Tr. 578). Plaintiff reported that he prepares his own meals, but only spends ten to 15 minutes at a time preparing food, as it is painful for him to spend more than short periods of time on his feet. (Docket Entry # 13-9, Tr. 578). Plaintiff further indicated that he is unable to independently complete tasks around the house, such as washing clothes or cleaning, and depends on his wife to do the shopping. (Docket Entry # 13-9, Tr. 579-80). Plaintiff reported that because of the strong pain in his legs, he leaves the house only when he has medical appointments. (Docket Entry # 13-9, Tr. 580). Plaintiff indicated that he remains capable of managing his own money and paying bills. (Docket Entry # 13-9, Tr. 580).

3 Plaintiff's wife, Brenda Figueroa Torres, completed this form in Spanish on behalf of plaintiff. (Docket Entry # 13-9, Tr. 584). The above summary of the form's content is an unofficial translation.

On July 3, 2013, plaintiff underwent a consultative examination with Nilma E. Rosado Villanueva, M.D. ("Dr. Rosado Villanueva"). (Docket Entry # 13-12, Tr. 858-69). At the examination, plaintiff reported a history of uncontrolled diabetes, high blood pressure, multiple heart attacks, and chest pain. (Docket Entry # 13-12, Tr. 858). Plaintiff reported being hospitalized six times between 1998 and 2013 due to chest pain, coronary artery disease, and uncontrolled diabetes, including a hospitalization for the placement of four stents in his heart. (Docket Entry # 13-12, Tr. 858-59). Plaintiff further reported experiencing frequent cramping, numbness, and spasms in his legs and shortness of breath during moderate physical activity. (Docket Entry # 13-12, Tr. 859). Dr. Rosado Villanueva noted that plaintiff used a cane for gait stability on his right side. (Docket Entry # 13-12, Tr. 858, 860). Upon physical examination, Dr. Rosado Villanueva observed "[p]alpable peripheral pulses" and lack of edema in plaintiff's legs. (Docket Entry # 13-12, Tr. 860). Plaintiff also exhibited a full range of motion and normal muscle strength in the upper and lower extremities. (Docket Entry # 13-12, Tr. 860, 865-66). Dr. Rosado Villanueva ultimately assessed diabetes, diabetic neuropathy, and left ventricular hypertrophy in addition to plaintiff's history of coronary artery disease and high blood pressure. (Docket Entry # 13-12, Tr. 861).

State agency physician Ivan Arzola, M.D. ("Dr. Arzola") completed a physical portion of a "Disability Determination Explanation" at the initial level on September 21, 2013. (Docket Entry # 13-6, Tr. 339-49). He determined that plaintiff suffers from multiple medically determinable impairments, including ischemic heart disease, which Dr. Arzola assessed as severe, as well as essential hypertension, diabetes, and peripheral neuropathy, all of which Dr. Arzola assessed as non-severe. (Docket Entry # 13-6, Tr. 347). Dr. Arzola's physical residual functional capacity ("RFC") assessment reflects that plaintiff is capable of lifting 50 pounds occasionally and 25 pounds frequently. (Docket Entry # 13-6, Tr. 347-48). Dr. Arzola also assessed that plaintiff can stand and/or walk with normal breaks for approximately six hours in an eight-hour workday. (Docket Entry # 13-6, Tr. 348). Dr. Arzola's RFC assessment further notes that plaintiff is capable of sitting with normal breaks for approximately six hours in an eight-hour workday. (Docket Entry # 13-6, Tr. 348).

On September 23, 2013, plaintiff was admitted to the emergency room at Lowell General Hospital. (Docket Entry # 13-12, Tr. 895-929). He complained of persistent bilateral leg pain and estimated that it began in January 2013. (Docket Entry # 13-12, Tr. 898). Emergency Department Nurse Tracey Correia-Mcgowan, RN prescribed plaintiff acetaminophen and tramadol for the pain. (Docket Entry # 13-12, Tr. 909-27). Plaintiff was additionally given educational materials relating to peripheral neuropathy, a diabetic diet, and the health effects of smoking. (Docket Entry # 13-12, Tr. 909-27).

On October 1, 2013, plaintiff established care with Mukund Gupta, M.D. ("Dr. Gupta") at Lowell Community Health Center. (Docket Entry # 13-14, Tr. 1088-90). As part of his medical history, plaintiff reported current tobacco use and estimated smoking between 11 and 19 cigarettes per day. (Docket Entry # 13-14, Tr. 1088). Upon a physical examination, Dr. Gupta observed no edema and noted that despite plaintiff's knees being sensitive to palpitation, plaintiff exhibited a normal range of motion in his extremities. (Docket Entry # 13-14, Tr. 1089). Dr. Gupta assessed plaintiff's diabetes as poorly controlled and referred him to diabetic management for counseling on diet. (Docket Entry # 13-14, Tr. 1089). Dr. Gupta also referred plaintiff to Scott Sigman, M.D. ("Dr. Sigman"), an orthopedist, for possible osteoarthrosis in plaintiff's knees. (Docket Entry # 13-14, Tr. 1089).

On November 13, 2013, plaintiff saw Dr. Sigman at Merrimack Valley Spine Center. (Docket Entry # 13-13, Tr. 1040-42). Dr. Sigman observed that plaintiff ambulated with a normal gait and did not walk with any assistive device. (Docket Entry # 13-13, Tr. 1041). Upon a physical examination, Dr. Sigman noted that plaintiff had a small open wound on his left calf. (Docket Entry # 13-13, Tr. 1041). Dr. Sigman further observed normal range of motion in both knees, despite tenderness when palpitated, and general atrophy in both right and left quadriceps. (Docket Entry # 13-13, Tr. 1041). Plaintiff underwent x-rays in both knees on the same day and Dr. Sigman assessed patellofemoral chondromalacia. (Docket Entry # 13-13, Tr. 1041-42). Dr. Sigman recommended "outpatient physical therapy and bilateral knee braces," and noted that he would not recommend or consider cortisone injections until plaintiff's blood sugars were under control and the wound on his left leg had healed. (Docket Entry # 13-13, Tr. 1041-42).

Beginning on November 20, 2013, plaintiff attended six sessions of outpatient physical therapy at Northeast Rehabilitation Hospital Network ("Northeast"), which was ultimately halted at the direction of plaintiff's physician.⁴ (Docket Entry # 13-13, Tr. 999-1007). Plaintiff attended a second round of physical therapy sessions at Northeast the following year from June 20 to August 13, with no change in plaintiff's overall level of pain. (Docket Entry # 13-15, Tr. 1182-96).

4 The record does not specify which of plaintiff's doctors halted the physical therapy treatment.

On December 8, 2013, plaintiff was admitted to the emergency room at Lowell General Hospital complaining of numbness in his right leg from his knee down to his toes. (Docket Entry # 13-13, Tr. 965-94). The attending physician, Barry Fisher, M.D. ordered and subsequently reviewed the results of a CT scan of plaintiff's brain. (Docket Entry # 13-14, Tr. 1096). The CT scan noted no intracranial hemorrhaging and ultimately found that no intracranial pathology could be identified based on the scan. (Docket Entry # 13-14, Tr. 1096). He ultimately diagnosed plaintiff with paresthesia. (Docket Entry # 13-13, Tr. 968).

Plaintiff saw his primary care provider, Dr. Gupta, for a follow-up visit several days later on December 9, 2013. (Docket Entry # 13-14, Tr. 1083-85). Dr. Gupta examined plaintiff and observed no edema in his extremities, but noted that plaintiff appeared to be experiencing decreased sensation to light touch in his right leg, and referred plaintiff to a neurologist for electromyography⁵ ("EMG"). (Docket Entry # 13-14, Tr. 1085). On December 13, 2013, plaintiff saw Vladan Milosavljevic, M.D. ("Dr. Milosavljevic") at New England Neurological Associates, P.C. (Docket Entry # 13-14, Tr. 1125). Dr. Milosavljevic performed the EMG and found the results to be abnormal "showing mostly axonal sensory polyneuropathy." (Docket Entry # 13-14, Tr. 1125-26).

5 Electromyography is performed to assess the health and functioning of muscles and motor neurons. Results from the procedure can reveal nerve and muscle defects and/or disfunction in nerve to muscle signal transmission. The Mayo Clinic, Electromyography, (2019), https://www.mayoclinic.org/tests-procedures/emg/about/pac-20393913.

On January 8, 2014, plaintiff saw his orthopedist, Dr. Sigman. (Docket Entry # 13-13, Tr. 1037-39). Plaintiff underwent x-rays of his lumbar spine and pelvis. (Docket Entry # 13-13, Tr. 1038). Dr. Sigman reviewed the results and observed "no significant degenerative change." (Docket Entry # 13-13, Tr. 1039). He also reviewed plaintiff's EMG results from a month prior and opined there was clear evidence of axonal sensory polyneuropathy in plaintiff's right leg consistent with diabetic neuropathy. (Docket Entry # 13-13, Tr. 1039). Dr. Sigman ordered an MRI of plaintiff's right knee to assess any intra-articular pathology and noted that if no obvious surgical pathology was found to be present, conservative pain management with a regular exercise program would be appropriate treatment. (Docket Entry # 13-13, Tr. 1039). Dr. Sigman further noted that due to plaintiff's poor diabetic control, he was unwilling to consider a cortisone injection at that time. (Docket Entry # 13-13, Tr. 1039).

Plaintiff saw Dr. Sigman again on February 3, 2014. (Docket Entry # 13-13, Tr. 1034-36). At the appointment, plaintiff reported continued pain and discomfort in his right knee, as well as anterior thigh and leg pain radiating down into his ankles. (Docket Entry # 13-13, Tr. 1034). Dr. Sigman reviewed the results of an MRI of plaintiff's right knee and observed "articular cartilage fissuring over the patella consistent with patellofemoral chondromalacia." (Docket Entry # 13-13, Tr. 1035). Dr. Sigman ordered an arterial ultrasound on plaintiff's right lower leg to test for peripheral vascular disease before evaluating further treatment. (Docket Entry # 13-13, Tr. 1035).

On February 19, 2014, plaintiff's primary care provider, Dr. Gupta, completed an EAEDC⁶ Medical Report in support of an application by plaintiff to the Massachusetts Department of Transitional Assistance ("DTA") for state disability benefits. (Docket Entry # 13-13, Tr. 1008-16). In the report, Dr. Gupta assessed only plaintiff's physical health. (Docket Entry # 13-13, Tr. 1011-16). Under the "[c]onclusions" section of the report, Dr. Gupta checked a box indicating that plaintiff suffers from "a physical, mental health, or cognitive impairment(s) that does not meet or equal the Department's Medical Standards or the SSI Listing of Impairments but does affect his or her ability to work." (Docket Entry # 13-13, Tr. 1015). Under the same section of the report, Dr. Gupta indicated that plaintiff's impairment was expected to last six to 12 months. (Docket Entry # 13-13, Tr. 1015).

6 EAEDC is an acronym for Emergency Aid to the Elderly, Disabled, and Children.

On February 20, 2014, plaintiff began meeting with Pamela Smith, RN ("Smith") for regular counseling on diabetes management. (Docket Entry # 13-14, Tr. 1079-80). A random blood sugar test administered by Smith during the visit revealed that plaintiff's glucose levels were very high at 332 mg/dl. (Docket Entry # 13-14, Tr. 1079). Smith discussed with plaintiff the importance of adhering to a diabetic diet and testing his blood sugar levels regularly. (Docket Entry # 13-14, Tr. 1079). Smith further advised plaintiff that an increase or change in medication might be necessary to obtain better control of his glucose levels. (Docket Entry # 13-14, Tr. 1079).

On February 24, 2014, plaintiff returned to Merrimack Valley Spine Center to see Dr. Sigman. (Docket Entry # 13-13, Tr. 1031-33). Plaintiff underwent an arterial ultrasound to gauge the possibility of peripheral vascular disease. (Docket Entry # 13-13, Tr. 1031). Dr. Sigman assessed the results of the vascular study as "unremarkable." (Docket Entry # 13-13, Tr. 1032). Plaintiff received a cortisone injection in his right knee in an effort to keep treatment conservative. (Docket Entry # 13-13, Tr. 1032-33). Dr. Sigman noted that he also reviewed a patellofemoral home exercise program with plaintiff. (Docket Entry # 13-13, Tr. 1033).

On April 2, 2014, plaintiff saw Dr. Gupta at Lowell Community Health Center for a follow-up appointment. (Docket Entry # 13-14, Tr. 1077-78). Plaintiff reported that while the pain in his right knee had improved after the cortisone injection by Dr. Sigman in February, he continued to experience persistent pain in his right thigh and leg. (Docket Entry # 13-14, 1077). Dr. Gupta noted that plaintiff's diabetes was poorly controlled, with a random blood sugar draw measuring plaintiff's glucose levels at 310 mg/dl. (Docket Entry # 13-14, Tr. 1077). Dr. Gupta counseled plaintiff on the importance of compliance with treatment, directed him to increase his Lantus insulin dosage and instructed him to follow up with Smith for further counseling on diabetes management. (Docket Entry # 13-14, Tr. 1077). At the conclusion of the visit, Dr. Gupta provided plaintiff with a letter recommending accommodations in the form of a first-floor apartment due to plaintiff's ambulatory difficulties. (Docket Entry # 13-13, Tr. 1029).

On April 21, 2014, plaintiff underwent a consultative examination by Asha Saxena, M.D. ("Dr. Saxena") at University of Massachusetts Disability Evaluation Services. (Docket Entry # 13-14, Tr. 1070-72). At the examination, plaintiff reported a history of bilateral knee pain, hand and leg pain and cramping, diabetes, chondromalacia, and depression. (Docket Entry # 13-14, Tr. 1070-71). Plaintiff also reported smoking approximately half a pack of cigarettes per day. (Docket Entry # 13-14, Tr. 1071). When questioned, plaintiff admitted to being able to perform activities of daily living normally. (Docket Entry # 13-14, Tr. 1072). Dr. Saxena observed that plaintiff's gait was slow and that he appeared to walk with a slight limp. (Docket Entry # 13-14, Tr. 1071). Dr. Saxena further noted that plaintiff struggled to rise to his feet from a seated or reclined position, was unable to walk on his heels or toes, and could not perform a squat. (Docket Entry # 13-14, Tr. 1071). Additionally, Dr. Saxena observed a restricted range of movement in plaintiff's knees, and noted that plaintiff experienced moderate pain upon extension and rotation of his knees. (Docket Entry # 13-14, Tr. 1071). Plaintiff reported to Dr. Saxena that his knees occasionally lock up and that he wears knee braces for added stability. (Docket Entry # 13-14, Tr. 1071). Dr. Saxena observed slightly weakened motor strength in both legs. (Docket Entry # 13-14, Tr. 1071). Plaintiff self-reported "feeling tired" when "he stands or walks for more than 10-15 minutes" at a time and being unable to walk for more than half a block. (Docket Entry # 13-14, Tr. 1072).

On May 12, 2014, plaintiff saw Dr. Gupta at Lowell Community Health Center for a follow-up appointment. (Docket Entry # 13-14, Tr. 1075-76). Plaintiff complained of persistent pain in both his right and left knees. (Docket Entry # 13-14, Tr. 1075). Dr. Gupta noted that plaintiff's diabetes was poorly controlled and opined that the pain plaintiff was experiencing in his extremities was linked to diabetic neuropathy. (Docket Entry # 13-14, Tr. 1075-76).

On May 19, 2014, state agency physician Jane McInerny, M.D. ("Dr. McInerny") completed a physical RFC at the initial level (Docket Entry # 13-6, Tr. 382-83). Dr. McInerny's physical RFC reflects that plaintiff is capable of lifting 50 pounds occasionally, and 20 pounds frequently. (Docket Entry # 13-6, Tr. 382). Dr. McInerny further assessed that plaintiff could stand or walk, with normal breaks, for approximately six hours in an eight-hour workday and could sit, with normal breaks, for the same length of time. (Docket Entry # 13-6, Tr. 382-83). Additionally, Dr. McInerny indicated that plaintiff has postural limitations allowing him to climb stairs frequently, climb ladders or scaffolds occasionally, stoop frequently, and kneel, crouch, and crawl occasionally. (Docket Entry # 13-6, Tr. 383). Dr. McInerny did not find that plaintiff had any manipulative, visual, communicative, or environmental limitations. (Docket Entry # 13-6, Tr. 383).

On May 30, 2014, plaintiff saw Smith for diabetes counseling at Lowell Community Health Center. (Docket Entry # 13-14, Tr. 1146-47). Smith noted that plaintiff's diabetes was poorly controlled, and that he was not using his insulin injections properly. (Docket Entry # 13-14, Tr. 1146). Smith provided plaintiff with written instructions in Spanish on the correct order, time, and dosage of insulin. (Docket Entry # 13-14, Tr. 1146). During a follow-up appointment on June 11, 2014, Smith noted that plaintiff's blood glucose levels had improved with the correction in plaintiff's use of insulin. (Docket Entry # 13-14, Tr. 1143-44). Plaintiff continued to go to the Lowell Community Health Center for diabetes counseling for the next six months. (Docket Entry # 13-14, Tr. 1139-40) (Docket Entry # 13-24, Tr. 1933-49).

On June 16, 2014, plaintiff saw Dr. Gupta at Lowell Community Health Center for a follow-up appointment. (Docket Entry # 13-14, Tr. 1141-42). Dr. Gupta noted that plaintiff's glucose levels had improved since beginning diabetes counseling. (Docket Entry # 13-14, Tr. 1141-42). Dr. Gupta further noted that plaintiff was continuing to struggle with pain in his right inner thigh, and referred him to Dr. Milosavljevic for further testing. (Docket Entry # 13-14, Tr. 1141-42). Dr. Milosavljevic subsequently performed an EMG on July 16, 2014 and observed no change since plaintiff's prior test. (Docket Entry # 13-14, Tr. 1127).

On August 1, 2014, plaintiff saw Dr. Gupta at Lowell Community Health Center for a routine follow-up appointment. (Docket Entry # 13-14, Tr. 1137-38). Dr. Gupta assessed plaintiff's diabetes as once again poorly controlled, at least in part due to poor adherence to treatment. (Docket Entry # 13-14, Tr. 1137).

On August 4, 2014, Dr. Sigman of Merrimack Valley Spine Center reviewed the results of plaintiff's recent EMG and noted no major changes from plaintiff's previous test. (Docket Entry # 13-14, Tr. 1173-74). Dr. Sigman further observed that plaintiff had experienced excellent results with the cortisone injection in his right knee and recommended that plaintiff "continue physical therapy and use of a brace." (Docket Entry # 13-14, Tr. 1173-74). At a follow-up appointment on October 6, 2014, Dr. Sigman administered a cortisone injection to plaintiff's left knee following plaintiff's complaints of pain and discomfort. (Docket Entry # 13-18, Tr. 1526-28).

On September 2, 2014, plaintiff completed another adult function report. (Docket Entry # 13-10, Tr. 654-57). He reported his daily activities as consisting of taking his medication, watching television, preparing meals, and bathing. (Docket Entry # 13-10, Tr. 654). He indicated that the constant pain in his legs interferes with his ability to sleep, and that he struggles to bend his knees, which makes dressing and bathing difficult. (Docket Entry # 13-10, Tr. 655). He also indicated that the pain in his legs causes him significant mental stress and has contributed to his depression. (Docket Entry # 13-10, Tr. 655). Plaintiff indicated that he occasionally forgets to take his medication. (Docket Entry # 13-10, Tr. 656). Plaintiff wrote that he prepares his own meals daily, often eating cereal for breakfast and sandwiches for lunch and dinner. (Docket Entry # 13-10, Tr. 656). Plaintiff further reported that he is able to do his own laundry and perform "basic" cleaning and other chores around the house. (Docket Entry # 13-10, Tr. 656). Plaintiff noted that he does these "things with difficulty" and at his own pace. (Docket Entry # 13-10, Tr. 656). Plaintiff reported going outside only when he feels well enough to do so or when he has "an appointment." (Docket Entry # 13-10, Tr. 657). Plaintiff also noted that he shops for groceries every two weeks and is able to pay his own bills and manage a checking account. (Docket Entry # 13-10, Tr. 657)

On November 11, 2014, state agency physician K. Malin Weeratne, M.D. ("Dr. Weeratne") completed a physical RFC at the reconsideration level. (Docket Entry # 13-6, Tr. 408-09). Dr. Weeratne offered an opinion of plaintiff's physical RFC matching that previously given by Dr. McInerny in May 2014. (Docket Entry # 13-6, 382-83, 408-09).

On March 9, 2015, plaintiff underwent a diabetic eye examination by John Capino, M.D. ("Dr. Capino"). (Docket Entry # 13-17, Tr. 1444-45). Dr. Capino assessed bilateral diabetic macular edema, noting that it was "[c]linically significant" and at "[h]igh risk of progression." (Docket Entry # 13-17, Tr. 1445). Dr. Capino further assessed "non-proliferative diabetic retinopathy" and "hypertensive retinopathy." (Docket Entry # 13-17, Tr. 1445).

On April 13, 2015, plaintiff saw Dr. Gupta at Lowell Community Health Center for a follow-up appointment. (Docket Entry # 13-24, Tr. 1922-23). Dr. Gupta observed continued ulcers on plaintiff's left leg and prescribed a topical antibacterial ointment. (Docket Entry # 13-24, Tr. 1922). Dr. Gupta further observed that plaintiff's diabetes was "poorly controlled." (Docket Entry # 13-24, Tr. 1923). During this appointment, plaintiff admitted to missing his most recent diabetes counseling appointment. (Docket Entry # 13-24, Tr. 1922). At a subsequent appointment on April 27, 2015, Dr. Gupta noted that the ulcer on plaintiff's left leg had improved somewhat, but that plaintiff's blood glucose levels continued to be "poorly controlled." (Docket Entry # 13-24, Tr. 1921). Dr. Gupta discussed with plaintiff at length the "need for improved compliance" with treatment. (Docket Entry # 13-24, Tr. 1921).

On May 4, 2015, plaintiff underwent a doppler ultrasound and waveform analysis on both of his lower legs to determine the root cause of his chronic ulcers. (Docket Entry # 13-17, Tr. 1449). Paul Burke, M.D. ("Dr. Burke") performed the examination at Non-Invasive Vascular Diagnostics located in North Chelmsford, Massachusetts. (Docket Entry # 13-17, Tr. 1449). He noted that the study was ultimately inconclusive, as he observed normal circulation in both extremities. (Docket Entry # 13-17, Tr. 1449). A subsequent ultrasound performed by Calin Vasiliu, M.D. ("Dr. Vasiliu") on June 25, 2015 at Non-Invasive Vascular Diagnostics revealed "chronic venous insufficiency" in plaintiff's right leg. (Docket Entry # 13-17, Tr. 1452). Dr. Vasiliu assessed plaintiff as failing conservative therapy with conservative measures, resulting in lifestyle-limiting symptoms. (Docket Entry # 13-17, Tr. 1452).

On June 30, 2015, plaintiff established care with Miguel Ariza, M.D. ("Dr. Ariza") at the Lowell Diabetes & Endocrine Center in North Chelmsford. (Docket Entry # 13-18, Tr. 1458-61). Plaintiff reported poor glycemic control and admitted to missing insulin injections once per day. (Docket Entry # 13-18, Tr. 1458). Dr. Ariza agreed that plaintiff's glycemic control was very poor and assessed major barriers to improvement due to lack of diabetes education and plaintiff's longstanding non-compliance with treatment. (Docket Entry # 13-18, Tr. 1459). Dr. Ariza recommended that plaintiff follow up with the diabetes center to receive further education and assistance with management of his condition. (Docket Entry # 13-18, Tr. 1459).

On August 29, 2015, plaintiff was admitted to the emergency room at Lowell General Hospital for chronic ulcers on his left leg that had recently become infected. (Docket Entry # 13-21, Tr. 1681-1755). Plaintiff reported recently having returned from a visit to Puerto Rico "and the infection worsened during that time." (Docket Entry # 13-21, Tr. 1692). Doris Pliskin, M.D. performed an incision and drainage of plaintiff's wound. (Docket Entry # 13-21, Tr. 1691). The infectious disease unit noted "significant improvement in the infection" following the procedure, and plaintiff was discharged shortly thereafter. (Docket Entry # 13-21, Tr. 1692).

On September 15, 2015, plaintiff underwent an ultrasound on his right leg at Non-Invasive Vascular Diagnostics. (Docket Entry # 13-17, Tr. 1450). Dr. Vasiliu reviewed the results of the ultrasound and met with plaintiff again on October 8, 2015. (Docket Entry # 13-17, Tr. 1452). Dr. Vasiliu stated that she was unwilling to "recommend an ablation" at this stage, and noted that gaining control over plaintiff's diabetes was of greater immediate concern. (Docket Entry # 13-17, Tr. 1452).

On December 29, 2015, plaintiff saw Dr. Ariza at Lowell Diabetes & Endocrine Center for a follow-up appointment. (Docket Entry # 13-18, Tr. 1466-68). Plaintiff reported poor glycemic control and recounted several hyperglycemic episodes that had occurred while he was visiting family in Puerto Rico. (Docket Entry # 13-18, Tr. 1466). Plaintiff reported suffering from low blood glucose levels three times per week on average. (Docket Entry # 13-18, Tr. 1466). Dr. Ariza noted that plaintiff was not compliant with a diabetic diet and had never followed up with the diabetes center. (Docket Entry # 13-18, Tr. 1466). Dr. Ariza ordered diagnostic labs to be completed by the following week at the latest. (Docket Entry # 13-18, Tr. 1468).

On February 2, 2016, Dr. Ariza reviewed the results of the labs and noted that plaintiff's blood glucose control was "very poor." (Docket Entry # 13-18, Tr. 1470-71). Dr. Ariza further noted that plaintiff should bring his glucose meter to his next appointment, as the blood glucose readings that plaintiff had self-reported to Dr. Ariza's office did not match the lab results. (Docket Entry # 13-18, Tr. 1472). On February 3, 2016, plaintiff spoke to a representative from Dr. Ariza's office by phone and informed her that he had not yet scheduled a follow-up appointment with the diabetes center. (Docket Entry # 13-18, Tr. 1471). Plaintiff further reported to the representative that he had been complying with treatment for his high cholesterol levels, but a subsequent phone call to plaintiff's pharmacy revealed that his cholesterol medication had not been refilled since July 2015. (Docket Entry # 13-18, Tr. 1471).

On February 25, 2016, plaintiff saw Damian Folch, M.D. ("Dr. Folch"). (Docket Entry # 13-23, Tr. 1882). Plaintiff complained of pain in his left arm, and Dr. Folch ordered an x-ray. (Docket Entry # 13-23, Tr. 1882). The x-ray was taken the same day by Bruce Hall, M.D. ("Dr. Hall"), who noted "no fracture or dislocation." (Docket Entry # 13-23, Tr. 1894-95). Dr. Hall did observe moderate degenerative change in the acromioclavicular joint "without significant hypertrophy" and noted that it was an otherwise normal exam. (Docket Entry # 13-23, Tr. 1895).

Approximately one month later, on March 21, 2016, plaintiff saw Benjamin Henkle, M.D. ("Dr. Henkle") at the Lowell General Hospital Pain Center. (Docket Entry # 13-5, Tr. 283-87). Plaintiff complained of neck and left arm pain that he rated a seven on a scale out of ten. (Docket Entry # 13-5, Tr. 283). Dr. Henkle assessed "left cervical radiculopathy" and suggested physical therapy two to three times per week for a minimum of six weeks, with a transition to a home exercise program. (Docket Entry # 13-5, Tr. 287). Dr. Henkle noted that he would consider a cervical epidural steroid injection if plaintiff's pain did not improve with physical therapy. (Docket Entry # 13-5, Tr. 287). B. Mental Conditions

On May 20, 2014, state agency consultant Daniel Morocco, Ed.D ("Morocco"), a psychologist, conducted a clinical diagnostic interview with plaintiff at University of Massachusetts Disability Evaluation Services. (Docket Entry # 13-14, Tr. 1098-1101). Plaintiff reported to Morocco that his daily activities consist of cleaning, cooking, doing laundry, and watching television. (Docket Entry # 13-14, Tr. 1099). He further reported difficulty dressing and bathing independently due to his knee problems. (Docket Entry # 13-14, Tr. 1099). Plaintiff described feeling "depressed almost all the time," but denied having any homicidal or suicidal ideations or experiencing any auditory or visual hallucinations. (Docket Entry # 13-14, Tr. 1100). Plaintiff admitted to engaging in self harm at some time in the past, but could not recall exactly when this occurred. (Docket Entry # 13-14, Tr. 1100).

Morocco observed some impairment in plaintiff's judgment, insight, and memory, noting that plaintiff struggled to remember some "personal historical facts." (Docket Entry # 13-14, Tr. 1099-1100). While plaintiff had some difficulty with retention and at times needed questions repeated, plaintiff nonetheless appeared to understand all of Dr. Morocco's questions and did not ultimately have any difficulty with comprehension. (Docket Entry # 13-14, Tr. 1099). Morocco noted that plaintiff appeared agitated and had some difficult relating throughout the interview. (Docket entry # 13-14, Tr. 1099). Dr. Morocco observed that plaintiff appeared uncomfortable in this type of interpersonal situation. (Docket Entry # 13-14, Tr. 1099). With respect to plaintiff's ability to adapt to work-like activities, Morocco opined that plaintiff would have "difficulty following multistep directions," "completing multistep tasks," and "relating to many different individuals." (Docket Entry # 13-14, Tr. 1099). However, Morocco assessed that plaintiff is capable of following "short and simple" directions and completing simple tasks in a work environment. (Docket Entry # 13-14, Tr. 1099). On the basis of the interview, Morocco diagnosed plaintiff with major depressive disorder moderate with anxious distress. (Docket Entry # 13-14, Tr. 1100).

On June 23, 2014, plaintiff underwent a consultative examination with David Husson, Psy.D ("Dr. Husson") of Disability Determination Services. (Docket Entry # 13-14, Tr. 1119-24). Plaintiff primarily reported suffering from physical health problems, including diabetes and neuropathy. (Docket Entry # 13-14, Tr. 1119-20). When questioned by Dr. Husson, plaintiff reported feeling "sad and somewhat helpless" about his current medical problems and anxious about his health. (Docket Entry # 13-14, Tr. 1119). Plaintiff explicitly denied experiencing suicidal thoughts, hallucinations, or delusions. (Docket Entry # 13-14, Tr. 1119). Dr. Husson noted that plaintiff's affect was "mildly constricted" and that his mood throughout the interview was mildly dysphoric. (Docket Entry # 13-14, Tr. 1121). However, Dr. Husson also assessed plaintiff's thought processing as coherent, and his insight and judgment as adequate. (Docket Entry # 13-14, Tr. 1121). Dr. Husson further assessed normal cognitive functioning and found no evidence of major social impairments. (Docket Entry # 13-14, Tr. 1122). With respect to plaintiff's functional capacity, Dr. Hussson opined that plaintiff is able to follow short, basic instructions. (Docket Entry # 13-14, Tr. 1122). Dr. Husson acknowledged that plaintiff has some limitations involving pace, persistence, and concentration from an emotional perspective, but that these limitations "seem to be caused by his reported physical health problems." (Docket Entry # 13-14, Tr. 1122).

On June 26, 2014, state agency consultant Julie Cohen, Ph.D ("Dr. Cohen") reviewed the records and completed a psychiatric review technique form and a mental RFC at the initial level. (Docket Entry # 13-6, Tr. 361-62, 364-66). Dr. Cohen found that plaintiff's affective and anxiety-related disorders mildly restrict plaintiff's social functioning and ability to partake in activities of daily living, and moderately restrict his ability to maintain concentration, persistence, or pace. (Docket Entry # 13-6, Tr. 362). Dr. Cohen further assessed moderate limitations in plaintiff's "ability to maintain attention and concentration for extended periods" of time, "ability to carry out detailed instructions," and "ability to complete a normal workday . . . without interruptions from psychologically based symptoms." (Docket Entry # 13-6, Tr. 365). Dr. Cohen opined that while plaintiff's psychological symptoms moderately limit his "ability to sustain focus and pace for detailed tasks," he remains capable of successfully completing simple tasks. (Docket Entry # 13-6, Tr. 365-66). Dr. Cohen noted that plaintiff's primary difficulties appear to be medical, and that "he is experiencing some low-level down mood and anxiety secondary to his physical ailments." (Docket Entry # 13-6, Tr. 366). Dr. Cohen emphasized that plaintiff remains "[a]ble to understand and recall simple information," "sustain attention and pace"⁷ for simple tasks, "relate adequately" to others, and "understand and respond to simple change(s)." (Docket Entry # 13-6, Tr. 366).

7 Dr. Cohen indicated that plaintiff is capable of sustaining pace and attention for up to two hours at a time, eight hours per day, and 40 hours per week. (Docket Entry # 13-6, Tr. 366).

On July 23, 2014, plaintiff underwent an initial screening for mental health counseling with Ester Lam, M.Ed ("Lam") at Lowell Community Health Center. (Docket Entry # 13-32, Tr. 2122). Plaintiff reported feeling depressed and nervous, and complained of difficulty sleeping and racing thoughts. (Docket Entry # 13-32, Tr. 2122). Lam noted that plaintiff appeared teary eyed throughout the visit, but exhibited a coherent thought process and displayed "[n]o signs of psychosis." (Docket Entry # 13-32, Tr. 2122). Lam ultimately assessed depression and referred plaintiff to therapist Olga Madrid for individual therapy. (Docket Entry # 13-32, Tr. 2122).

On September 15, 2014, plaintiff saw Olga Madrid ("Madrid")⁸ for an initial therapy session at Lowell Community Health Center. (Docket Entry # 13-17, Tr. 1382-85). Plaintiff reported anxiety and constant sadness, crying spells, and difficulty sleeping at night. (Docket Entry # 13-17, Tr. 1382). Additionally, plaintiff reported some auditory and visual hallucinations beginning approximately six months prior. (Docket Entry # 13-17, Tr. 1382). Plaintiff also admitted to having some suicidal thoughts, but expressed that he was able to control them by concentrating on a different activity or by telephoning a friend or family member. (Docket Entry # 13-17, Tr. 1382). Madrid assessed "[s]evere recurrent major depression with psychotic behavior." (Docket Entry # 13-17, Tr. 1383).

8 Madrid holds a master's degree. (Docket Entry # 13-17, Tr. 1383) (Docket Entry # 13-30, Tr. 1974, 1979). The parties agree that beginning in September 2014, Madrid was plaintiff's therapist. (Docket Entry # 17, p. 4) (Docket Entry # 19, p. 5).

Plaintiff saw Madrid again on September 29, 2014 at Lowell Community Health Center. (Docket Entry # 13-24, Tr. 1959-61). Plaintiff reported persistence of the same symptoms as in the previous session. Plaintiff additionally reported a prior hospitalization in 2012 in Puerto Rico due to suicidal ideation and incidents of intentionally burning himself with cigarettes. (Docket Entry # 13-24, Tr. 1959-60). Madrid opined that plaintiff could "benefit from [i]ndividual therapy" to address issues underlying his depression and help him develop coping skills. (Docket Entry # 13-24, Tr. 1960). Madrid additionally recommended medication to assist in stabilizing plaintiff's mood and sleep patterns. (Docket Entry # 13-24, Tr. 1960). Overall, Madrid assessed plaintiff's prognosis as good, given his insight and strong familial support system. (Docket Entry # 13-24, Tr. 1960).

On October 7, 2014, plaintiff saw David Patterson, MS, APRN,⁹ NP ("Patterson") at Lowell Community Health Center. (Docket Entry # 13-24, Tr. 1962-63). Plaintiff complained of persistent feelings of depression, frequent crying episodes, and some suicidal thoughts. (Docket Entry # 13-24, Tr. 1962). Patterson assessed plaintiff's mood as depressed and noted that his appearance was tearful during the visit. (Docket Entry #13-24, Tr. 1962). Patterson "[r]estarted plaintiff on reported medications." (Docket Entry # 13-24, Tr. 1962-63). Patterson also recommended that plaintiff continue therapy with Madrid. (Docket Entry # 13-24, Tr. 1963).

9 An APRN is an advanced practice registered nurse who has earned a graduate level degree in nursing and has been trained to perform one of the following specialized roles: certified nurse midwife, certified registered nurse anesthetist, clinical nurse specialist, or nurse practitioner ("NP"). Advanced Practice Registered Nurse (APRN), Registered Nursing (2019), https://www.registerednursing.org/aprn.

On November 10, 2014, plaintiff saw Madrid again at Lowell Community Health Center for continued therapy. (Docket Entry # 13-31, Tr. 2090). Plaintiff reported feeling better with the medication and noted that his ability to sleep had improved. (Docket Entry # 13-31, Tr. 2090). Plaintiff reported feeling well enough to travel to see his son and grandchildren over the weekend. (Docket Entry # 13-31, Tr. 2090). Plaintiff also noted a marked decrease in suicidal thoughts and ideations. (Docket Entry # 13-31, Tr. 2090). Plaintiff continued to attend regular therapy sessions with Madrid over the next six months. (Docket Entry # 13-31, Tr. 2036-84).

On November 11, 2014, state agency consultant Joseph A. Whitehorn, Ph.D ("Dr. Whitehorn") completed a psychiatric review technique form and a mental RFC at the reconsideration level. (Docket Entry # 13-6, Tr. 406-07, 409-11). Upon examining the record, Dr. Whitehorn concurred with Dr. Cohen's assessment that plaintiff's affective and anxiety related disorders mildly restrict plaintiff's social functioning and ability to partake in activities of daily living, and moderately restrict his ability to maintain concentration, persistence, or pace. (Docket Entry # 13-6, Tr. 362, 407). Dr. Whitehorn also offered an assessment of plaintiff's sustained concentration and persistence limitations identical to that of Dr. Cohen. (Docket Entry # 13-6, Tr. 365-66, 410-11). The only area in which Dr. Whitehorn's opinion differed from Dr. Cohen's was with regard to plaintiff's adaptational limitations. (Docket Entry # 13-6, Tr. 365, 410-11). Dr. Whitehorn found that plaintiff is moderately limited in his ability to respond appropriately to changes in work setting, clarifying that plaintiff remains capable of responding to changes in simple work routines. (Docket Entry # 13-6, Tr. 410-11).

Dr. Whitehorn further opined that while the new data from Lowell Community Health Center suggested an "upsurge of dramatic depressive [symptoms]," plaintiff's credibility as to his reported symptoms was lacking. (Docket Entry # 13-6, Tr. 411). Dr. Whitehorn specifically noted that while at his appointments at Lowell Community Health Center plaintiff claimed to have been experiencing auditory and visual hallucinations for the past six months, plaintiff had explicitly denied experiencing any such symptoms in his evaluations with medical "contacts" (Dr. Morocco and Dr. Husson) that took place within the same time frame. (Docket Entry # 13-6, Tr. 411).

On May 12, 2015, plaintiff saw Martha Root, PMHNP-BC¹⁰ ("Root") at Lowell Community Health Center for medication management. (Docket Entry # 13-31, Tr. 2037). Plaintiff reported feeling "tense with stress and depression," but informed Root that he tries to manage these feelings by keeping "busy doing word searches and listening to music." (Docket Entry # 13-31, Tr. 2037). Plaintiff further reported some hallucinations and paranoia five to nine months prior, but noted that he had not experienced either of these symptoms recently. (Docket Entry # 13-31, Tr. 2037).

10 A psychiatric-mental health nurse practitioner ("PMHNP-BC") is an APRN who has specialized in psychiatric - mental health. See Alphabet Soup: LPN, RN, APRN, NP - Making Sense of Nursing Roles & Scope of Practice, Nurse Practitioner Schools (2019), https://www.nursepractitionerschools.com/blog/nursing-roles-by-scope-of-practice/.

On June 5, 2015, plaintiff saw Madrid and reported that his mother had recently been hospitalized for health issues in Puerto Rico. (Docket Entry # 13-31, Tr. 2033). Though plaintiff reported feeling stressed, he noted that he had been able to manage his stress in positive ways by keeping in close contact with family and using techniques he had learned in therapy. (Docket Entry # 13-31, Tr. 2033). Plaintiff further reported his intention to travel to Puerto Rico to visit his wife and mother "from July to [the] end of August." (Docket Entry # 13-31, Tr. 2033). At subsequent appointments in late June and early July, Madrid and Root noted that plaintiff's mood continued to improve, and he continued to exhibit intact memory and fair judgment. (Docket Entry # 13-31, Tr. 2028-30).

On November 24, 2015, plaintiff saw Madrid for mental health counseling at Lowell Community Health Center. (Docket Entry # 13-31, Tr. 2018). Plaintiff reported feeling happy and excited about having recently moved out of his brother's home and into his own apartment. (Docket Entry # 13-31, Tr. 2018). Madrid noted that control over plaintiff's depression had improved and that his control over fleeting suicidal thoughts was much improved with medication. (Docket Entry # 13-31, Tr. 2018). At a December 11, 2015 appointment with Root, plaintiff similarly noted an improved mood. (Docket Entry # 13-31, Tr. 2011).

At a January 20, 2016 appointment with Root, plaintiff reported increased sadness and suicidal thoughts. (Docket Entry # 13-31, Tr. 2005). In response, Root adjusted the dosage of plaintiff's medications. (Docket Entry # 13-31, Tr. 2005). At a follow-up appointment with Madrid on January 25, 2016, plaintiff reported improvement in his anxiety and ability to manage suicidal thoughts after the increase in his medication dosage. (Docket Entry # 13-31, Tr. 2004).

On March 7, 2016, plaintiff saw Madrid for mental health counseling at Lowell Community Health Center. (Docket Entry # 13-31, Tr. 1993). Plaintiff reported stress and anxiety caused by his mother's recent hospitalization and his brother's ongoing health problems. (Docket Entry # 13-31, Tr. 1993). Madrid discussed coping strategies with plaintiff, and he agreed to try to focus on positive thoughts and use relaxation and breathing techniques to better manage his anxiety. (Docket Entry # 13-31, Tr. 1993).

On March 22, 2016, plaintiff saw Root at Lowell Community Health Center for a follow-up appointment regarding his medication. (Docket Entry # 13-24, Tr. 1965-66). Plaintiff reported feeling "pretty good" on the medication, and Root observed that plaintiff's affect was congruent and his memory was intact. (Docket Entry # 13-24, Tr. 1965-66).

On April 14, 2016, Madrid and Dr. Neelam Sihag, M.D. ("Dr. Sihag") co-signed a "Mental Impairment Questionnaire" in which they diagnosed plaintiff with schizoaffective disorder, depressive type, and expressed the opinion that plaintiff is "unable to meet competitive standards" in almost every category of mental ability needed to complete unskilled work.¹¹ (Docket Entry # 13-30, Tr. 1973-79). They further suggested that plaintiff is "[s]eriously limited, but not precluded" in his ability to understand, remember, and carry out short and simple instructions, and has marked difficulties in social functioning and maintaining concentration, persistence, and pace. (Docket Entry # 13-31, Tr. 1976, 1978). Various therapy notes by Madrid and Root reference the schizoaffective disorder assessment whereas others by Madrid reference the major depressive disorder. (Docket Entry ## 13-24, 13-31, Tr. 1960, 1966, 1980-2113).

11 The questionnaire specifies that "[u]nable to meet competitive standards" means that the plaintiff "cannot satisfactorily perform" the activity "independently, appropriately, effectively and on a sustained basis in a regular work setting." (Docket Entry # 13-30, Tr. 1976).

III. ALJ Hearing

As previously noted, plaintiff and a VE testified at the April 29, 2016 hearing before the ALJ. (Docket Entry # 13-5, Tr. 294-338). Plaintiff testified that he last worked as plumber's assistant for a company that performed maintenance work at Hospital San Lucas in Puerto Rico. (Docket Entry # 13-5, Tr. 310). Plaintiff stated that his responsibilities as a plumber's assistant primarily consisted of handling tools, cutting pipes, and sometimes painting. (Docket Entry # 13-5, Tr. 310). Plaintiff estimated that the heaviest object he carried in his role as a plumber's assistant was a sink faucet that weighed approximately two pounds. (Docket Entry # 13-5, Tr. 310). Plaintiff reported that prior to his job as a plumber's assistant, he worked as an auto parts salesman at Western Auto in Puerto Rico for approximately seven to eight years. (Docket Entry # 13-5, Tr. 308-309). Plaintiff explained that he worked behind the counter as a salesperson and also helped to stock the shelves. (Docket Entry # 13-5, Tr. 308-309). Plaintiff estimated that the heaviest object he lifted in his capacity as a salesperson was a car starter weighing anywhere between five and 15 pounds. (Docket Entry # 13-5, Tr. 308-309).

Plaintiff identified his physical impairments as including diabetes, diabetic neuropathy and chronic pain, and blisters, i.e. ulcers, in both his upper and lower extremities. (Docket Entry # 13-5, Tr. 311-12, 314-15). Plaintiff explained that his diabetes went uncontrolled for some time, which resulted in nerve damage to his legs. (Docket Entry # 13-5, Tr. 311). Plaintiff stated that his legs are prone to swelling and that some days he struggles to get out of bed. (Docket Entry # 13-5, Tr. 311). Plaintiff explained that the pain is constant and radiates up and down his legs. (Docket Entry # 13-5, Tr. 315- 16). Plaintiff noted that he also occasionally experiences numbness in his legs. (Docket Entry # 13-5, Tr. 316). He further testified that walking for more than five to ten minutes at a time exacerbates the pain in his legs. (Docket Entry # 13-5, Tr. 316.). He also noted that he suffers from chronic blisters, i.e., ulcers. (Docket Entry # 13-5, Tr. 318). Plaintiff estimated that he gets new blisters [ulcers] on his legs every 15 days or so, and noted that they can at times be very painful. (Docket Entry # 13-5, Tr. 318). Plaintiff explained that when he is at home, he tries to keep his feet and legs elevated to minimize the discomfort from the blisters. (Docket Entry # 13-5, Tr. 318). Plaintiff further noted that he can only remain seated for short periods of time due to pain in his back. (Docket Entry # 13-5, Tr. 317). Plaintiff testified, "I can sit for 40 or 50 minutes, but when I get up my back hurts a lot." (Docket Entry # 13-5, Tr. 317).

When questioned by the ALJ about why he continued to struggle with his diabetes and compliance with treatment, plaintiff testified that he continues to struggle to control his diabetes and sometimes takes his morning dose of insulin late, around 10:00 a.m., instead of at 8:00 a.m. as recommended by his doctor. (Docket Entry # 13-5, Tr. 312). Plaintiff testified that he used to smoke, but stopped in August 2015. (Docket Entry # 13-5, Tr. 313-14). Plaintiff further explained that he had recently begun to have problems with his left hand and shoulder. (Docket Entry # 13-5, Tr. 314). He stated that he cannot grip or lift things with his left hand, and that he expected to begin physical therapy after his next medical appointment. (Docket Entry # 13-5, Tr. 314). Plaintiff elaborated that the fingers on his left hand are prone to cramping and numbness. (Docket Entry # 13-5, Tr. 317). Plaintiff estimated that the most weight he could lift at the time of the ALJ hearing was ten to 12 pounds. (Docket Entry # 13-5, Tr. 317).

After describing his physical ailments, plaintiff began to describe his psychological impairments. (Docket Entry # 13-5, Tr. 319). Plaintiff testified that he was first diagnosed with depression in 2010 after he was hospitalized for a failed suicide attempt. (Docket Entry # 13-5, Tr. 319-20). Plaintiff stated that he was not currently experiencing suicidal thoughts, but that he has continued to suffer from other symptoms of depression, such as crying spells, negative thoughts, and feelings of wanting to run away. (Docket Entry # 13-5, Tr. 320-21). Plaintiff testified that his depression makes him feel tired and weak, and that he often feels like he wants to "sleep and sleep and never get up." (Docket Entry # 13-5, Tr. 323). Plaintiff also testified that he experiences auditory and visual hallucinations several times per week, including seeing shadows and hearing someone call his name or knock on his apartment door. (Docket Entry # 13-5, Tr. 321). Plaintiff explained that when he experiences these hallucinations, he tries to distract himself by listening to music. (Docket Entry # 13-5, Tr. 321). Finally, plaintiff testified that he has trouble remembering things and struggles with concentration. (Docket Entry # 13-5, Tr. 323).

After plaintiff, the VE then testified regarding plaintiff's previous employment. (Docket Entry # 13-5, Tr. 324). The VE described plaintiff's work as an auto parts salesperson, see DOT 279.357-062, and as a construction worker one,¹² see DOT 869.664-014. (Docket Entry # 13-5, Tr. 324-25). The VE characterized the level of exertion for an auto parts salesperson as "light" and described the work as "skilled." (Docket Entry # 13-5, Tr. 324). The VE characterized the level of exertion of a construction worker as normally being "heavy," but "light work as performed" by plaintiff. (Docket Entry # 13-5, Tr. 325). The VE described the position of a construction worker as a semi-skilled job. (Docket Entry # 13-5, Tr. 325-26).

12 While the record reflects that plaintiff's actual job title was plumber's assistant, the VE testified that this type of work corresponds to construction work, which is functionally equivalent to the type of work that plaintiff was performing as a plumber's assistant. (Docket Entry # 13-5, Tr. 310, 324).

Next, the ALJ posed the following hypothetical question to the VE:

[H]ere's an individual who can perform medium work. So, [lifting] 50 pounds occasionally, 25 pounds frequently, stand, walk and sit six hours. Frequently climb stairs and ramps. Frequently stoop. Occasionally climb ladders, ropes, and scaffolds. Occasionally kneel, crouch, and crawl. It's only physical limitations, so with those limitations, would the individual be able to do either of the claimant's past work?

(Docket Entry # 13-5, Tr. 326). The VE responded in the affirmative, noting that the work as an auto parts salesperson as well as a construction worker one operating at the "light" level would fit the hypothetical. (Docket Entry # 13-5, Tr. 326). The ALJ then asked the VE whether an individual typically accumulates transferrable skills in either of those positions that could translate to sedentary occupations. (Docket Entry # 13-5, Tr. 326). The VE again responded in the affirmative, noting that there would be some "limited" transferrable skills "considering the semi-skill[ed] or skill[ed] nature of the work." (Docket Entry # 13-5, Tr. 326). The VE provided the examples of "following spoken instructions, following written instructions, handling customer complaints, [and] following written work orders." (Docket Entry # 13-5, Tr. 326).

The ALJ then adjusted the hypothetical and added that the same individual is capable of "sustain[ing] focus and pace well enough to complete simple instructions in an environment with minor changes to tasks." (Docket Entry # 13-5, Tr. 327). The ALJ proceeded to ask the VE whether, with the addition to the hypothetical, the individual would be able to do the claimant's past work. (Docket Entry # 13-5, Tr. 327). The VE responded that the individual would not, as such an "individual would be limited to unskilled work," while the claimant's past work was performed at the skilled and semi-skilled levels. (Docket Entry # 13-5, Tr. 327). The VE then identified jobs in the national economy that such an individual could perform, such as laundry worker one, see DOT 361.684-014, laundry worker two, see DOT 361.685-018, and storage laborer, see DOT 922.687-058. (Docket Entry # 13-5, Tr. 328). The VE estimated that in the national economy there are approximately 67,000 jobs available as a laundry worker one, 198,000 jobs available as a laundry worker two, and 22,000 jobs available as a storage laborer. (Docket Entry # 13-5, Tr. 328).

The ALJ then posed a second hypothetical question to the VE:

Let's put out an individual who is limited to light work. So this individual can lift 20 pounds occasionally, 10 pounds frequently. Sit, stand, or walk six hours per day. The individual can frequently push and pull with the left upper extremity. Occasionally climb stairs and ramps. Never climb ladders[,] ropes[,] and scaffolds. Occasionally balance, stoop, kneel, crouch[,] and crawl . . . Can frequently reach over head with the left upper extremity . . . Needs to avoid concentrated exposure to unprotected heights and machinery with external moving parts.

(Docket Entry # 13-5, Tr. 328). The VE testified that there were jobs in the national economy that such an individual could perform, such as marker two, see DOT 920.687-126, mail clerk, see DOT 209.687-026, and school bus monitor, see DOT 372.667-042. (Docket Entry # 13-5, Tr. 328-29). The VE estimated that in the national economy there are approximately 26,000 jobs available as a marker 2, 16,000 jobs available as a mail clerk, and 96,000 jobs available as a school bus monitor. (Docket Entry # 13-5, Tr. 328-29). The ALJ then asked the VE whether or not the individual described in the second hypothetical would be able to perform any of the claimant's past work. (Docket Entry # 13-5, Tr. 329). The VE responded that the individual could not perform the duties of a construction worker, but could perform the work of an auto parts salesperson. (Docket Entry # 13-5, Tr. 329). The ALJ then modified the second hypothetical, adding that the individual has to sit down to rest for four to five minutes per hour due to chronic pain. (Docket Entry # 13-5, Tr. 329-330). The ALJ then asked the VE whether, with the modification, this individual could perform any of the claimant's past work. (Docket Entry # 13-5, Tr. 330). The VE responded in the affirmative, noting that as long as the total amount of time that the individual was off task did not exceed ten percent of the work day, the individual would probably be able to perform the claimant's past work, dependent on the particular employer. (Docket Entry # 13-5, Tr. 330).

Following the ALJ's questions, plaintiff's attorney began to question the VE. (Docket Entry # 13-5, Tr. 330). Plaintiff's attorney first asked the VE whether, if he were to add non-English speaking as a factor to the first hypothetical, the VE's testimony would change. (Docket Entry # 13-5, Tr. 331). The VE responded that it would largely depend on the particular employer. (Docket Entry # 13-5, Tr. 331). Plaintiff's attorney then asked whether the individual in first hypothetical being a non-English speaker would alter the VE's testimony as to the number of jobs available in the national economy for such a person to perform. (Docket Entry # 13-5, Tr. 331). The VE responded that he could not give an exact number, but that he would estimate that being a non-English speaker would reduce the number of available jobs by three fourths. (Docket Entry # 13-5, Tr. 332). The VE based this assessment solely on his prior professional experience, and not on census data or statistics from the Department of Labor. (Docket Entry # 13-5, Tr. 333). With respect again to the first hypothetical, plaintiff's attorney asked if lowering the frequent lifting from 25 pounds to 20 pounds would change the VE's testimony. (Docket Entry # 13-5, Tr. 334). The VE testified that it would not. (Docket Entry # 13-5, Tr. 334).

Plaintiff's attorney then modified the second hypothetical, adding that the individual is a non-English speaker and can only perform light, "sedentary and simple unskilled work." (Docket Entry # 13-5, Tr. 334). Plaintiff's attorney then asked the VE whether, with the new facts, he could identify any jobs that such an individual could perform that are available in the national economy. (Docket Entry # 13-5, Tr. 334). The VE identified surveillance system monitor, see DOT 379.367-010, table worker, see DOT 739.687-182, and assembler, see DOT 734.687-018, as jobs that such an individual could perform. (Docket Entry # 13-5, Tr. 334). The VE estimated that there are 14,000 jobs available as a surveillance system monitor, 23,000 jobs available as a table worker, and 206,000 jobs available as an assembler in the national economy. (Docket Entry # 13-5, Tr. 334). The VE noted that these numbers would be reduced by approximately 75% for a non-English speaker. (Docket Entry # 13-5, Tr. 334-35).

Plaintiff's attorney then further modified the hypothetical, specifying that individual could not reach overhead and was limited to "frequent fingering, handling, and grasping" with his upper extremities. (Docket Entry # 13-5, Tr. 335). Plaintiff's attorney then asked the VE whether, with the new facts, the individual could still perform any of the jobs that the VE had listed previously. (Docket Entry # 13-5, Tr. 335). The VE responded that the individual would still be able to perform the job functions of a surveillance system monitor and a table worker. (Docket Entry # 13-5, Tr. 335). Plaintiff's attorney then asked whether, if the individual could only occasionally finger, handle, and grasp objects, the VE's testimony would change. (Docket Entry # 13-5, Tr. 335). The VE responded that an individual who could only occasionally finger, handle, and grasp objects could perform the duties of surveillance system monitor, but not those of a table worker. (Docket Entry # 13-5, Tr. 335).

DISCUSSION

I. Jurisdiction and Standard of Review

This court has the power to affirm, modify, or reverse the ALJ's decision with or without remanding the case for a hearing. 42 U.S.C § 405(g). Findings of fact by the ALJ are conclusive if they are supported by substantial evidence. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Seavey v. Barnhart, 276 F.3d 1, 9-10 (1st Cir. 2001); Manso-Pizarro v. Sec'y of Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). The ALJ's findings of fact are not conclusive if the ALJ has derived such facts by "ignoring evidence, misapplying the law, or judging matters entrusted to experts." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). It is the court's task to determine "whether the final decision is supported by substantial evidence and whether the correct legal standard was used." Seavey v. Barnhart, 276 F.3d at 9.

Substantial evidence review is "more deferential than it might sound to the lay ear: though certainly 'more than a scintilla' of evidence is required to meet the benchmark, a preponderance of evidence is not" required. Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (quoting Bath Iron Work Corp. v. United States Dep't of Labor, 336 F.3d 51, 56 (1st Cir. 2003)) (internal quotation marks omitted); Bath Iron Work Corp. v. United States Dep't of Labor, 336 F.3d at 56 (the substantial evidence standard "is notoriously difficult to overcome" and, while "'more than a scintilla,' it certainly does not approach the preponderance-of-the-evidence standard normally found in civil cases") (emphasis added and internal citation omitted). Thus, this court must affirm the ALJ's conclusion if it is supported by substantial evidence, "even if the record arguably could justify a different conclusion." Rodriguez Pagan v. Sec'y of Health and Human Servs., 819 F.2d 1, 3 (1st Cir. 1987); accord Musto v. Halter, 135 F. Supp. 2d 220, 225 (D. Mass. 2001).

Substantial evidence exists where, "'reviewing the evidence in the record as a whole,'" a reasonable mind "'could accept it as adequate to support the Commissioner's conclusion.'" Purdy v. Berryhill, 887 F.3d at 13 (quoting Rodriguez v. Sec'y of Health and Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). Finally, credibility issues are the "'prime responsibility'" of the Commissioner, and conflicts in the evidence as well as the "determination of the ultimate question of disability" are for the Commissioner, "not for the doctors or for the courts," to decide. Rodriguez v. Sec'y of Health and Human Servs., 647 F.2d at 222 (internal citation omitted).

II. Disability Determination

To receive SSI and disability insurance benefits, plaintiff "must show that [he] had a disability" which began before or during the period between the date of his application for benefits and the date of the ALJ's decision and "which lasted or was likely to last at least twelve months." Johnson v. Colvin, 204 F. Supp. 3d 396, 401 (D. Mass. 2016). The Social Security Act defines a 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 twelve months.

42 U.S.C. § 1382c(a)(3); see 42 U.S.C. § 423(d)(1)(A). Impairments must be of such a severity that the claimant is not only unable to do his previous work but, in consideration of his or her "age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3); see 42 U.S.C. § 423(d)(2)(A).

To determine whether a claimant is disabled within the meaning of the statute, the ALJ applies a sequential, five-step evaluation process and considers all of the evidence in the record. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see Goodermote v. Sec'y of Health and Human Servs., 690 F.2d 5, 6 (1st Cir. 1982). At the first step, the claimant is not disabled if he or she is currently employed. See id. If the claimant is not employed, the ALJ proceeds to the second step to evaluate whether or not the claimant has a severe impairment or combination of impairments. See id. A severe impairment or combination of impairments must meet a durational requirement of "a continuous period of at least 12 months" and must significantly limit the claimant's "physical or mental ability to do basic work activities." 20 C.F.R §§ 404.1509, 404.1520(c), 416.909, 416.920(c).

If the claimant is not found to have a severe impairment or combination of impairments, he or she is not disabled. See Goodermote v. Sec'y of Health and Human Servs., 690 F.2d at 6. If the claimant has a severe impairment or combination of impairments, then the analysis proceeds to the third step, in which the ALJ must determine whether the claimant's severe impairment or combination of impairments meets or is medically equivalent to one of the impairments listed in Appendix 1, Subpart P, Part 404 of the Code of Federal Regulations. 20 C.F.R. §§ 404.1520(d), 416.920(d); see Goodermote v. Sec'y of Health and Human Servs., 690 F.2d at 6. If the impairment or combination of impairments meets or is medically equivalent to a listed impairment, then the claimant is disabled. If not, the analysis proceeds to step four. See id. at 6-7.

At step four, the ALJ must determine whether the claimant is capable of performing any of his or her past relevant work by comparing the claimant's current RFC with the mental and physical demands of the claimant's past work. See 20 C.F.R. §§ 404.1520(a)(4), 404.1520(e), 916.920(a)(4), 916.920(e); Manso-Pizarro v. Sec'y of Health and Human Servs., 76 F.3d at 17. If the claimant can perform any of his or her past relevant work, the claimant is not disabled. See Goodermote v. Sec'y of Health and Human Servs., 690 F.2d at 7. In the first four steps, the burden to provide evidence and to prove an inability to perform past work rests with the claimant. See Manso-Pizzaro v. Sec'y of Health and Human Servs., 76 F.3d at 17; Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001) ("applicant has the burden of production and proof at the first four steps of the process").

If the claimant successfully satisfies his burden by showing he can no longer perform his past work, the burden shifts to the Commissioner to show the existence of other jobs in the national economy that the claimant could perform. 20 C.F.R. §§ 404.1520(g), 416.920(g), 404.1560(c), 416.960(c); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote v. Sec'y of Health and Human Servs., 690 F.2d at 7; Rosado v. Sec'y of Health and Human Servs., 807 F.2d 292, 294 (1st Cir. 1986). In making this determination at step five, the ALJ must consider the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g), 404.1560(c), 416.960(c). The claimant is not disabled if jobs that the claimant can perform exist in significant numbers in the national economy. 20 C.F.R. §§ 404.1560(c), 416.960(c), 404.1512(g), 416.912(g).

I. ALJ's Decision

At step one of the five-step sequential evaluation process, the ALJ found that plaintiff had "not engaged in substantial gainful activity since January 25, 2013, the alleged onset date" of plaintiff's disability. (Docket Entry # 13-2, Tr. 17) (emphasis omitted). At step two, the ALJ found that plaintiff had the following severe impairments: "ischemic heart disease, degenerative joint disease of the left shoulder, history of patella-femoral chondromalacia, diabetic neuropathy, and depressive disorders." (Docket Entry # 13-2, Tr. 17) (emphasis omitted). The ALJ noted that while she was mindful of the fact that plaintiff also suffers from uncontrolled diabetes, "hypertension, dyslipidemia, high cholesterol, bursitis of the right elbow, cellulitis, diabetic retinopathy, and scattered degenerative changes" in his spine, the record failed to show that any of these conditions, "considered singly or in combination, have more than a minimal impact on the claimant's ability to perform even minimal basic work-related tasks." (Docket Entry # 13-2, Tr. 18).

At step three, the ALJ determined that plaintiff's impairments did not meet or medically equal the severity of any of the listed impairments in Appendix 1, Subpart P, Part 404 of Title 20 of the Code of Federal Regulations. (Docket Entry # 13-2, Tr. 18). In making this determination, the ALJ first considered whether plaintiff's physical impairments, considered singly or in combination, met or medically equaled the criteria for a listed impairment. (Docket Entry # 13-2, Tr. 18-19). The ALJ noted that, "[t]here is no listing for diabetes. Pursuant to SSR 14-2p, the claimant's diabetes mellitus Type II was considered as a factor in meeting or equaling one of the [l]istings." (Docket Entry # 13-2, Tr. 18). The ALJ ultimately found that, "[e]ven accounting for this impairment, however, the claimant fails to meet or equal the thresholds required by the listings related to diabetes." (Docket Entry # 13-2, Tr. 18). The ALJ likewise found that plaintiff's "ischemic heart disease, degenerative joint disease of the left shoulder, history of patella-femoral chondromalacia, and diabetic neuropathy" did not meet or medically equal the criteria for a listed impairment. (Docket Entry # 13-2, Tr. 19).

The ALJ then considered whether plaintiff's mental impairments, considered singly or in combination, met or medically equaled the criteria for a listed impairment. (Docket Entry # 13-2, Tr. 19). In doing so, the ALJ considered whether the "'paragraph B'" criteria had been satisfied, namely, whether plaintiff's mental conditions had resulted in at least two of the following:

[M]arked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence or pace; or repeated episodes of decompensation, each of extended duration.¹³

(Docket Entry # 13-2, Tr. 19). First, with respect to activities of daily living, the ALJ found that plaintiff had only mild restrictions. (Docket Entry # 13-2, Tr. 20). The ALJ noted that while plaintiff "complained of several issues in this area," including "postural limitations" and difficulty walking and standing, these constraints were attributable almost entirely to plaintiff's physical conditions. (Docket Entry # 13-2, Tr. 20). With respect to plaintiff's mental conditions, the ALJ noted that although plaintiff reported struggling with depression, "anxiety, decreased concentration, and some self-harm behaviors," the record reflected "grossly conservative mental health treatment with what appears to be a relatively stable prescription medication regimen." (Docket Entry # 13-2, Tr. 20). Citing the adult function reports completed by plaintiff, the ALJ further noted that even with this minimal mental health treatment, plaintiff reported being able to prepare meals, perform some household chores, "watch television, and maintain some semblance of daily routine." (Docket Entry # 13-2, Tr. 20). The ALJ opined that "[s]uch behavior, particularly in combination with the conservative treatment in the record, persuasively indicates that the claimant remains substantially capable in this area." (Docket Entry # 13-2, Tr. 20).

13 The ALJ clarified that a marked limitation is one that is "more than moderate, but less than extreme," and that "[r]epeated episodes of decompensation, each of extended duration, means three episodes within one year, or an average of once every four months, each lasting for at least two weeks." (Docket Entry # 13-2, Tr. 19).

Second, with respect to social functioning, the ALJ found that plaintiff again had only mild difficulties. (Docket Entry # 13-2, Tr. 20). The ALJ again cited the relatively conservative mental health treatment plaintiff received, and noted that despite plaintiff's reported suicidal ideations, "the record at no time suggests that he exhibited any issues interacting normally with his various medical providers." (Docket Entry # 13-2, Tr. 20).

Third, with respect to concentration, persistence, and pace, the ALJ found that plaintiff had moderate difficulties. (Docket Entry # 13-2, Tr. 20). The ALJ noted that despite conservative treatment, the record reflected that plaintiff had "consistently alleged general deficits in concentration and distractibility." (Docket Entry # 13-2, Tr. 20). The ALJ concluded that, "[c]rediting such consistent reports," plaintiff was moderately limited in this area. (Docket Entry # 13-2, Tr. 20).

Finally, with respect to repeated episodes of decompensation, the ALJ found there was no evidence in the record that plaintiff had experienced any such episodes as defined in the regulations. (Docket Entry # 13-2, Tr. 20). The ALJ concluded that because plaintiff's mental impairments had not resulted in "at least two 'marked' limitations or one 'marked' limitation and 'repeated' episodes of decompensation, each of extended duration," the "'paragraph B'" criteria had not been satisfied. (Docket Entry # 13-2, Tr. 21). The ALJ further considered whether the "'paragraph C'" criteria had been satisfied, ultimately concluding they had not. (Docket Entry # 13-2, Tr. 21).

In performing this analysis at step three, the ALJ gave "significant weight" to the opinions of Dr. Cohen and Dr. Whitehorn, the state agency psychological consultants at the initial and reconsideration levels, both of whom assessed only "mild restriction" in social function and activities of daily living, and "moderate difficulties in concentration." (Docket Entry # 13-2, Tr. 21). The ALJ explained that she did so for several reasons: first, as state agency consultants, Drs. Cohen and Whitehorn were "familiar with the disability program and its evidentiary requirements"; and second, while neither independently examined plaintiff, both were able to review the majority of plaintiff's mental health treatment records, including the consultative psychiatric examinations from 2014. (Docket Entry # 13-2, Tr. 21).

Proceeding to step four, the ALJ found that plaintiff had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b) as well as the following:

[T]he claimant can frequently push, pull, and reach with the left upper extremity. The claimant can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. The claimant cannot climb ladders. The claimant must avoid concentrated exposure to hazards such as heights and dangerous, moving machinery. The claimant can also sustain focus and pace to complete simple instructions in environments with minor changes to tasks.

(Docket Entry # 13-2, Tr. 22) (emphasis omitted). In arriving at the RFC, the ALJ made the following credibility finding:

After careful consideration of the evidence, I find that claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these

symptoms are not entirely consistent with the medical evidence and other evidence in the record[.]

(Docket Entry # 13-2, Tr. 23). In making this finding, the ALJ extensively examined plaintiff's physical and mental health treatment records and ultimately determined that plaintiff's claims of "disabling limitations" were "generally inconsistent with the available medical evidence of record." (Docket Entry # 13-2, Tr. 29). The ALJ noted that despite plaintiff's lengthy history of physical and mental health complaints, the record nonetheless reflected "largely intact physical, cognitive, and emotional functioning" for the relevant period. (Docket Entry # 13-2, Tr. 29). The ALJ further noted that plaintiff maintained such stability with "broadly conservative set of physical and mental health treatment," and emphasized that she was "particularly mindful" that plaintiff's treating physicians had not "recommended or prescribed more aggressive treatment modalities such as surgical intervention or inpatient therapy." (Docket Entry # 13-2, Tr. 29). The ALJ also observed that, "while not dispositive behavior," the record reflected "some noncompliance with prescribed treatment, particularly, with respect to [plaintiff's] diabetic neuropathy." (Docket Entry # 13-2, Tr. 29). Finally, the ALJ pointed out that plaintiff reported traveling for an extended period outside of the contiguous United States to visit family. (Docket Entry # 13, Tr. 29).

In her analysis at step four, the ALJ gave no probative weight to records of prior work excuses, reports that plaintiff was restricted to a first floor living area, and a prior finding by DTA that plaintiff was disabled. (Docket Entry # 13-2, Tr. 23). The ALJ explained that "the authors of these documents are not State agency consultants familiar with the disability program or its evidentiary requirements." (Docket Entry # 13-2, Tr. 23). Further, she explained that "the standards by which an individual may be found to be disabled" for the purposes of these documents "are not the same as those applied in the realm of disability benefits and are thus of highly limited relevance in this analysis." (Docket Entry # 13-2, Tr. 23). The ALJ further noted that plaintiff was previously assessed for the purposes of state-sponsored disability benefits. (Docket Entry # 13-2, Tr. 23). The ALJ emphasized that any findings of physical disability in these evaluations were "not based in the Social Security disability program" and were thus not binding on the ALJ. (Docket Entry # 13-2, Tr. 23). Nonetheless, the ALJ indicated that to the extent that portions of these evaluations suggested that plaintiff had "severe medical conditions resulting in some physical deficits," they were consistent with the entirety of the record and were thus accorded "good weight." (Docket Entry # 13-2, Tr. 23).

The ALJ considered the opinions proffered by Dr. Rosado Villanueva and Dr. Saxena as "general observational evidence," noting that neither physician had proposed any specific restrictions in plaintiff's "overall ability to perform even minimal work activities." (Docket Entry # 13-2, Tr. 26). The ALJ specifically noted that Dr. Saxena's note that plaintiff "is incapable of standing for even ten to 15 minutes at a time" was "highly inconsistent with the other medical evidence of record." (Docket Entry # 13-2, Tr. 26). In particular, the ALJ pointed to numerous medical findings in the record establishing that plaintiff presented with a largely normal gait during the relevant time period. (Docket Entry # 13-2, Tr. 27) (Docket Entry # 13-14, Tr. 1075-97, 1137-72) (Docket Entry # 13-17, Tr. 1393-1443, 1449-54) (Docket Entry # 13-18, Tr. 1455-1524) (Docket Entry # 13-24, Tr. 1920-54) (Docket Entry # 13-32, Tr. 2158).

The ALJ accorded "limited weight" to the opinions of state agency physicians Dr. Arzola, Dr. McInerny, and Dr. Weeratne. (Docket Entry # 13-2, Tr. 28). The ALJ explained that while all three physicians were state agency consultants familiar with the requirements of the disability program and had reviewed all available medical evidence before them, their shared opinion that plaintiff was capable of a medium exertional level of work nonetheless "overexaggerate[s] the extent of the claimant's actual physical capabilities." (Docket Entry # 13-2, Tr. 28-29). In making such a finding, the ALJ emphasized the following:

[T]he assorted clinical examinations have repeatedly confirmed the presence of degenerative changes of the left shoulder, diabetic neuropathy, []ischemic heart disease, and his newly diagnosed condition of venous insufficiency. Such changes are further underscored by the claimant's overall history of various physical impairments as well.

(Docket Entry # 13-2, Tr. 29) (internal exhibit citations omitted). The ALJ concluded that plaintiff was in fact "more limited" than the medium level of work proposed by the state agency physicians, and thus gave limited weight to their shared opinions. (Docket Entry # 13-2, Tr. 29).

With respect to plaintiff's mental functioning, the ALJ gave "great weight" to the opinion of state agency consultant Dr. Morocco. (Docket Entry # 13-2, Tr. 27). The ALJ cited Dr. Morocco's familiarity with the disability program and the fact that he had independently examined plaintiff as significant. (Docket Entry # 13-2, Tr. 27). The ALJ further noted that Dr. Morocco's finding that plaintiff was capable of following at least simple instructions was "an accurate characterization of the totality of the evidence of record" and cited plaintiff's "stable and conservative mental health treatment" in support. (Docket Entry # 13-2, Tr. 27). The ALJ also cited the opinion of Dr. Husson, another state agency consultant who offered an opinion almost identical to that of Dr. Morocco. (Docket Entry # 13-2, Tr. 27). Dr. Husson, like Dr. Morocco, opined that plaintiff was capable of "following basic instructions and interacting normally with others." (Docket Entry # 13-2, Tr. 27). The ALJ noted that Dr. Husson, like Dr. Morocco, "reviewed all the evidence available at the time" and had personally examined plaintiff. (Docket Entry # 13-2, Tr. 27).

The ALJ gave "little to no probative weight" to the opinion offered by Dr. Sihag that plaintiff had "serious limitations in meeting competitive standards" in almost all mental capacities, and "marked limitations in social functioning and in maintaining concentration." (Docket Entry # 13-2, Tr. 28). The ALJ explained, first, that Dr. Sihag's conclusions were "not supported by the totality of the evidence of record" and were in fact "in sharp contrast with the other psychological examiners and reviewers." (Docket Entry # 13-2, Tr. 28). Second, the ALJ explained that even if Dr. Sihag's opinion was more current than those of the other psychological reviewers and should therefore reflect plaintiff's current mental status, "the extreme limits opined" by Dr. Sihag "[were] not consistent with the current medical records." (Docket Entry # 13-2, Tr. 28). Third, the ALJ observed that the extent of the "treating relationship" between plaintiff and Dr. Sihag was unclear, as the record reflected only that plaintiff received counseling from Madrid and medication management from Root.¹⁴ (Docket Entry # 13-2, p. 28). Fourth, the ALJ noted that Dr. Sihag's assessment "appear[ed] to be based primarily upon the claimant's subjective perception[s]" of his physical and mental symptoms. (Docket Entry # 13-2, Tr. 28). In support, the ALJ cited that fact that, while Dr. Sihag described plaintiff as "hypervigilant" and "'paranoid'" when feeling stressed, plaintiff "has also been able to travel back and forth to Puerto Rico during the pendency of the case with no evidence of needing assistance." (Docket Entry # 13-2, Tr. 28). In essence, the ALJ noted that Dr. Sihag's opinion was inconsistent with the reality of plaintiff's travel to and from Puerto Rico. (Docket Entry # 13-2, Tr. 28).

14 However, plaintiff did testify at the ALJ hearing that he was seeing his psychiatrist, Dr. Sihag. (Docket Entry # 13-5, Tr. 298).

Based on the medical record in its entirety, the ALJ determined that plaintiff's physical and mental infirmities "during the relevant period restrict[ed] him to a light exertional level" including the "reaching, postural, environmental, and mental limitations adopted in the residual functional capacity." (Docket Entry # 13-2, Tr. 29). On the basis of this RFC, the ALJ determined that plaintiff was unable to perform any of his past relevant work. (Docket Entry # 13-2, Tr. 29).

Proceeding to step five, the ALJ assessed whether a significant number of jobs existed in the national economy that plaintiff could perform considering his "age, education, work experience, and [RFC]." (Docket Entry # 13-2, Tr. 30) (emphasis omitted). The ALJ cited the VE's testimony that an individual with plaintiff's limitations could perform other occupational duties, including those of a marker two, a mail clerk, and a school bus monitor. (Docket Entry # 13-2, Tr. 31). The ALJ additionally considered the testimony of the VE that the availability of such positions in the national economy would be reduced by up to 75 percent for non-English speakers. (Docket Entry # 13-2, Tr. 31). Nonetheless, the ALJ concluded that considering plaintiff's "age, education, work experience, and [RFC]," plaintiff was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy" and was thus "'not disabled'" within the meaning of the Social Security Act. (Docket Entry # 13-2, Tr. 31).

IV. Plaintiff's Arguments

In seeking to reverse or remand the decision of the Commissioner, plaintiff raises several arguments. (Docket Entry ## 17, 20). First, he argues that the ALJ improperly weighed the medical opinion evidence in her determination of the mental RFC. (Docket Entry ## 17, 20). Second, he maintains that substantial evidence does not support the ALJ's finding that plaintiff is capable of sustaining or performing light work.¹⁵ (Docket Entry ## 17, 20). A. Evaluation of Medical Opinion Evidence

15 Plaintiff raises a number of additional arguments, which are addressed infra.

Plaintiff submits that the ALJ erred in her evaluation of the medical opinion evidence used to determine the mental RFC, asserting that the ALJ improperly discredited the opinion of plaintiff's treating source and impermissibly relied on the opinions of the state agency consultants, which plaintiff contends were based on an incomplete review of the record. (Docket Entry # 17). The Commissioner maintains that the ALJ appropriately weighed the medical opinion evidence in her determination of the mental RFC. (Docket Entry # 19). The Commissioner is correct.

1. The ALJ's Decision Assigning "Little to No Probative Weight" to the Opinion Co-Signed by Dr. Sihag and Madrid Was Not Improper

Plaintiff asserts that the ALJ improperly discredited the opinion co-signed by Dr. Sihag, Madrid, and Root.¹⁶ (Docket Entry # 17, p. 13). Plaintiff argues that Dr. Sihag was a "treating source" whose opinion should have been afforded controlling weight given her unique familiarity with plaintiff's "longitudinal treatment." (Docket Entry # 17, p. 14). Plaintiff further contends that the ALJ improperly rejected Dr. Sihag's opinion because it was based on plaintiff's "'subjective perceptions'" of his own symptoms, and suggests that the ALJ erred in considering plaintiff's ability to travel in determining what weight to afford Dr. Sihag's opinion. (Docket Entry # 17, p. 10) (emphasis omitted). Plaintiff also maintains that the ALJ erred in not re-contacting Dr. Sihag pursuant to 20 C.F.R. § 404.1520b(b)(2)(i). (Docket Entry # 17, p. 14).

16 Plaintiff states that Madrid, Root, and Dr. Sihag completed the mental impairment questionnaire (Docket Entry # 17, p. 5) (referring to Tr. 1974-1978) when, in fact, Madrid and Dr. Sihag co-signed the questionnaire. (Docket Entry # 13-30, Tr. 1973-1978). The ALJ gave the opinion "[l]ittle to no probative weight." (Docket Entry # 13-2, Tr. 28).

An ALJ must "always consider the medical opinions in [the] case record," and SSA regulations generally prefer the opinion of a claimant's treating source over the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c), 416.927(c). A treating source is an "acceptable medical source"¹⁷ who "provides [the claimant], or has provided [the claimant] with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant]." 20 C.F.R. §§ 404.1502, 416.902; see Gagnon v. Astrue, Civil Action No. 11- 10481-PBS, 2012 WL 1065837, at *5 (D. Mass. Mar. 27, 2012). An acceptable medical source who has no treating relationship with the claimant does not "morph" into a treating source by affixing his signature to an opinion or report completed by a non-acceptable medical source¹⁸ who does have a treating relationship with the claimant. See Resto v. Colvin, Civil Action No. 15-30012-MGM, 2016 WL 1384779, at *5 (D. Mass. Apr. 7, 2016) (co-signature of acceptable medical source who never examined or otherwise treated claimant on an opinion by an "other" medical source who had treated claimant did not transform the opinion into a treating source opinion); see also Lobov v. Colvin, Civil Action No. 12-40168-TSH, 2014 WL 3386567, at *14 n.8 (D. Mass. June 23, 2014) (co-signature of acceptable medical source on an opinion completed by a therapist, without any actual evaluation of claimant, had no bearing on ALJ's discretion to disregard therapist's opinion).

17 The regulations define an acceptable medical source as, among other things, a licensed physician or psychologist, or, for claims filed on or after March 27, 2017, an advanced practice registered nurse. 20 C.F.R. §§ 404.1502(a), 416.902.

18 The regulations draw a distinction between "acceptable medical sources" and medical sources who are "other health care providers," the latter referring to health care providers who do not fall within the enumerated categories of "acceptable medical sources," such as "(for example, nurse-practitioners . . . and therapists)." 20 C.F.R. §§ 404.1502, 416.902, 404.1513(a), (d), 416.913(a), (d).

Here, Madrid is neither an acceptable medical source nor a treating source. A therapist, such as Madrid, is not an acceptable medical source, but rather an "other" health care provider. See 20 C.F.R. §§ 404.1502, 416.902. As such, an ALJ is afforded wide discretion in weighing a therapist's opinion and "is only constrained by the duty to reach a conclusion supported by substantial evidence in the record." Gagnon v. Astrue, 2012 WL 1065837, at *5. Madrid is not a treating source, but rather an "other" health care provider whose opinion the ALJ was given wide latitude in weighing. See 20 C.F.R. §§ 404.1502, 416.902;¹⁹ Gagnon v. Astrue, 2012 WL 1065837, at *5 ("A treating source is defined by 20 C.F.R. §§ 404.1502, 416.902 as a patient's own physician, psychologist, or other acceptable medical source who has provided medical treatment in an ongoing way."). Turning to Root to complete the record, although an APRN is currently considered an accepted medical source, this applies only to claims filed on or after March 27, 2017. See 20 C.F.R. § 404.1502(a)(7). Plaintiff's claims were filed in early 2013 and the ALJ rendered her opinion in August 2016, and thus for purposes of this action, Root is considered an "other" medical source. See 20 C.F.R. §§ 404.1502, 416.902. Thus, Root's assessments reciting a schizoaffective disorder are not a treating source's opinion and the ALJ was free to consider them in any way that she pleased, provided that her ultimate decision was supported by substantial evidence. See 20 C.F.R. §§ 404.1502, 416.902; Gagnon v. Astrue, 2012 WL 1065837, at *5.

19 As indicated, the above regulations at the relevant time defined a "treating source" as the claimant's "own physician, psychologist, or other acceptable medical source who provides [the claimant] . . . with medical treatment or evaluation" and has or had "an ongoing treatment relationship with [the claimant]." 20 C.F.R. §§ 404.1502, 416.902.

"[T]reating physicians' opinions are ordinarily accorded deference in Social Security disability proceedings," Richards v. Hewlett-Packard Corp., 592 F.3d 232, 240 n.9 (1st Cir. 2010), because such sources are more likely to offer "a detailed, longitudinal picture of [claimant's] 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." 20 C.F.R. §§ 416.927(c)(2), 404.1527(c)(2). The opinion of a treating source is entitled to controlling weight with respect to the "nature and severity" of the claimant's impairments where the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record. 20 C.F.R. §§ 416.927(c)(2), 404.1527(c)(2); Purdy v. Berryhill, 887 F.3d at 13.

To determine the proper weight of a treating source opinion not assigned controlling weight, the ALJ considers the following factors: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the degree to which the opinion can be supported by relevant evidence; (4) the treating source's specialization; and (5) the consistency of the opinion "with the record as a whole." 20 C.F.R. §§ 416.927(c)(2)-(6), 404.1527(c)(2)-(6); Bourinot v. Colvin, 95 F. Supp. 3d 161, 175-76 (D. Mass. 2015) (noting that "[w]here controlling weight is not given to a treating source opinion, the ALJ considers an array of factors" and listings in 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6)). Further, under the regulations, the ALJ is required to provide an explanation for the weight given to a treating source opinion and the reasoning supporting the decision. Santana v Colvin, Civil Action No. 15-13232-IT, 2016 WL 7428223 at *3 (D. Mass. Dec. 23, 2016) ("even when an ALJ does provide reasons for discounting a treating source opinion, remand is proper if those reasons are 'unpersuasive' or 'significantly flawed'") (quoting Johnson v. Astrue, 597 F.3d 409, 411-12 (1st Cir. 2009)).

In the case at bar, the ALJ reasonably gave little to no probative weight to the opinion co-signed by Dr. Sihag and Madrid. First, contrary to plaintiff's assertions, there is no evidence in the record to suggest that Dr. Sihag had a treating relationship with plaintiff or ever even examined plaintiff. In fact, the evidence in the record relating to Dr. Sihag consists of her signature on the opinion co-signed by Madrid, who plaintiff did see for therapy sessions. (Docket Entry # 13-30, Tr. 1973-79). The signature page of the opinion in particular seems to suggest that Dr. Sihag's role was supervisory, at best.²⁰ (Docket Entry # 13-30, Tr. 1979). Absent evidence of a prior treating relationship in an ongoing treatment relationship, Dr. Sihag was not a treating physician for purposes of the ALJ's analysis, see 20 C.F.R. §§ 404.1502, 404.1527(c), 416.902, 416.927(c); Gagnon v. Astrue, 2012 WL 1065837, at *5, and the ALJ's finding that the "extent of the treating relationship" "is unclear" (Docket Entry # 13-2, Tr. 28) is supported by substantial evidence. Second, the signature of Dr. Sihag, an acceptable medical source under the regulations, does not transform the opinion signed by Madrid, an "other" medical source per the regulations, into a treating source opinion. See 20 C.F.R. §§ 404.1502, 404.1513, 916.902, 916.913; Resto v. Colvin, 2016 WL 1384779, at *5; Lobov v. Colvin, 2014 WL 3386567, at *14 n.8.

20 The signature page of the opinion instructs "If you are not an M.D. or licensed Psychologist, please have your report co-signed by an individual who has that title," suggesting that Dr. Sihag's signature on the opinion completed by Madrid was little more than a formality. (Docket Entry # 13-30, Tr. 1979).

Even assuming that Dr. Sihag had a treating relationship with plaintiff, the ALJ properly considered the factors laid out in the regulations and articulated sufficient reasons for the weight afforded to the opinion. See 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). Plaintiff's assertion that the ALJ rejected the opinion signed by Dr. Sihag and Madrid on the basis of the ALJ's own assessment as a layman is patently false. To the contrary, the ALJ specifically articulated her reasoning for denying the opinion controlling weight, stating that she did so because (1) the extent and frequency of the treating relationship was unclear, (2) the conclusions proffered appeared to rely excessively on plaintiff's subjective perceptions of his own symptoms, and (3) the opinion was inconsistent with the other substantial evidence in the record. (Docket Entry # 13-2, Tr. 28).

Plaintiff shows no error by alleging that the ALJ improperly discredited the opinion because it appeared to rely on plaintiff's subjective perception of his own symptoms. See Rodriguez Pagan v. Sec'y of Health and Human Servs., 819 F.2d at 3 (upholding ALJ's decision to discredit the opinions of two treating physicians where he "reasonably concluded that they relied excessively on claimant's subjective complaints, rather than on objective medical findings"); Sanchez v. Berryhill, Civil Action No. 18-30084-KAR, 2019 WL 2437265, at *12 (D. Mass. June 10, 2019) ("'extent to which a treating source's opinion evidence rests on a claimant's subjective, untested accounts of her symptoms and limitations is a factor on which an ALJ is entitled to rely in deciding what weight to accord to that evidence'") (quoting DeCepeda v. Berryhill, Civil Action No. 17-30080-KAR, 2018 WL 3748170, at *12 (D. Mass. Aug. 6, 2018)).

Further, there is ample evidence in the record to support the ALJ's finding that the opinion that plaintiff was "[u]nable to meet competitive standards" in almost every area of mental functioning necessary for unskilled work was inconsistent with the entirety of the medical record. (Docket Entry # 13-30, Tr. 1973-79). For example, the ALJ cited the opinions offered by the examining state agency consultants, Drs. Morocco and Husson, who both found that, despite some agitation and anxiety, plaintiff remained capable of following short, simple instructions. (Docket Entry # 13-2, Tr. 27). Furthermore, the ALJ cited the underlying, longitudinal mental health treatment records from Root and Madrid reflecting improvement in plaintiff's depression, "logical thought process and content," intact insight and judgment, and "otherwise normal cognitive functioning" as recently as March 2016, mere weeks before Dr. Sihag and Madrid co-signed the opinion. (Docket Entry # 13-2, Tr. 26-28) (Docket Entry # 13-30, Tr. 1973-79). The ALJ's decision to afford little to no probative weight to the opinion partially on this basis was thus not improper. See Castro v. Barnhart, 198 F. Supp. 2d 47, 54 (D. Mass. 2002) (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.").

Plaintiff also shows no error by suggesting that it was improper for the ALJ to consider plaintiff's ability to travel when deciding what weight to afford the opinion of Dr. Sihag and Madrid and the assessments by Root. The ALJ did not, as plaintiff suggests, equate an ability to travel with an ability to work. Rather, the ALJ permissibly cited plaintiff's reported travel to Puerto Rico and New York as an example of evidence in the record inconsistent with the extreme limits to plaintiff's mental functioning opined by Dr. Sihag and Madrid. See De Oliveira v. Colvin, Civil Action No. 14-12629-DJC, 2016 WL 3460313, at *10 (D. Mass. June 20, 2016) (inconsistency between claimant's ability to travel internationally and opinion finding that plaintiff had significant mental impairment was "good reason[]" for giving little weight to the opinion). Plaintiff's reference to his hospitalization following his return from Puerto Rico is misleading. Plaintiff was not hospitalized due to a mental health issue, but rather because of an ulcer on his leg that had become infected. (Docket Entry # 13-21, Tr. 1711). The record therefore does not necessarily suggest that plaintiff's hospitalization was related to his travel.

Finally, plaintiff's contention that the ALJ was obligated to recontact Dr. Sihag,²¹ pursuant to 20 C.F.R. § 404.1520b(b)(2)(i) ²² and 416.920b (Docket Entry # 17, p. 14) (Docket Entry # 20, p. 5) is misguided. The regulation does not inevitably require the ALJ to recontact the treating source. See 20 C.F.R. § 404.1520b(c)(2). Rather, recontacting the treating source is but one of several options available to the ALJ in the event there is insufficient evidence to determine whether the claimant is disabled. See 20 C.F.R. § 404.1520b(c)(2); Rackliff v. Berryhill, Civil Action No. 16-002050-JHR, 2017 WL 2266796, at *7 (D. Me. May 22, 2017) ("regulation does not require an administrative law judge to recontact a medical source; that is merely one of several available options") (citing 20 C.F.R. § 416.920b(c)); Arrington v. Colvin, 216 F. Supp. 3d 217, 243 (D. Mass. 2016) (noting that ALJ had "option of seeking additional information from a number of different sources, and would not have been required to re-contact Dr. Kelman"), aff'd sub nom. Arrington v. Berryhill, No. 17-1047, 2018 WL 818044 (1st Cir. Feb. 5, 2018); accord Dooley v. Comm'r of Soc. Sec., 656 F. App'x 113, 123 (6th Cir. 2016) (recognizing that "ALJ may contact a medical source for further clarification when the record contains insufficient evidence" for ALJ to determine "whether the claimant is disabled" but not requiring recontact because "ALJ's thorough opinion demonstrates that he carefully considered the entire record, including Dr. Yates's opinion, . . . before determining" record contained sufficient evidence to conclude claimant "was not disabled") (citing 20 C.F.R. § 404.1520b(c)(1)) (unpublished). In the case at bar, the ALJ did not indicate that there was insufficient evidence in the record from which to determine whether plaintiff was disabled. On the contrary, the ALJ found and summarized ample evidence supporting her conclusion that plaintiff was not disabled. The ALJ thus did not err in failing to recontact Dr. Sihag. See Rackliff v. Berryhill, 2017 WL 2266796, at *6 (ALJ did not err in not recontacting a treating source where ALJ did not indicate a lack of sufficient evidence to make a disability determination); Arrington v. Colvin, 216 F. Supp. 3d at 243 (ALJ "was able to weigh the available evidence and reach a determination about Arrington's disability claim without the need to obtain additional information" and was therefore not required to recontact treating source) (discussing 20 C.F.R. § 404.1520b(c)).

21 In making this argument, plaintiff assumes that Dr. Sihag was, in fact a treating source. (Docket Entry # 17). As discussed above, under the regulations, Dr. Sihag was not a treating source, nor was the opinion she co-signed with Madrid and Root a treating source opinion. Nonetheless, for purposes of addressing plaintiff's argument, this court assumes, hypothetically, that Dr. Sihag was a treating source.

22 This subsection took effect on March 27, 2017, almost one year after the ALJ issued her decision in this case. That said, it generally corresponds to the subsection of the regulation in effect when the ALJ issued her decision. See 20 C.F.R. § 404.1520(b)(c)-(c)(1). The latter subsection states, in pertinent part, that the ALJ "may" choose to recontact a "treating physician, psychologist, or other medical source" where "the evidence is consistent but we have insufficient evidence to determine whether [the claimant] [is] disabled" or where "after weighing the evidence . . . we cannot reach a conclusion about whether [the claimant] [is] disabled." 20 C.F.R. §§ 404.1520b(c)(2)-(2)(i) (emphasis added).

2. ALJ's Assignment of Weight to Opinions of State Agency Consultants Not Improper

Plaintiff further challenges the ALJ's decision to assign significant weight to the opinions of the consultative mental health examiners on the grounds that their opinions were based on an incomplete review of the record. (Docket Entry # 17, p. 10). Plaintiff notes that Drs. Morocco, Husson, Cohen, and Whitehorn were "lacking all but one" of plaintiff's behavioral health treatment notes from Lowell Community Health Center at the time they completed their evaluations. (Docket Entry # 17, p. 10). Plaintiff submits that the ALJ was "plainly wrong" in stating that they were able to review the bulk of plaintiff's mental health treatment records and contends that the ALJ erred in relying on their opinions when no medical expert had reviewed and offered an opinion based on the entirety of the record. (Docket Entry # 17, p. 10). Plaintiff further contends that in doing so, the ALJ improperly substituted her own judgment for that of a medical expert. (Docket Entry # 17, p. 13). Plaintiff further suggests that the ALJ did not in fact give "great weight" to the portion of Dr. Morocco's opinion in which he observed that plaintiff was "'agitated and nervous.'" (Docket Entry # 17, p. 7).

An ALJ may assign weight to the opinions of state agency medical and psychological consultants "only insofar as they are supported by evidence in the case record." SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996). The ALJ is ultimately only required to "make a decision that is supported by substantial evidence," and thus if the ALJ "comes to a conclusion contrary to that of the treating physician and alternatively adopts the opinion of a non-examining source," this court must uphold the decision as long as a "'reasonable mind'" could find the record as a whole adequately supports this conclusion. Johnson v. Colvin, 204 F. Supp. 3d at 410 (internal citation omitted). "[T]the fact that a State agency consultant 'did not have access to all of the records . . . does not prevent the ALJ from assigning significant weight to [the consultant's] assessment if the ALJ conducted an independent review of the evidence, which included treatment notes [that] the consultant had not considered.'" Martinez-Lopez v. Colvin, 54 F. Supp. 3d 122, 137 (D. Mass. 2014) (quoting Carter v. Astrue, 866 F. Supp. 2d 1093, 1112 (N.D. Iowa 2012)); accord Genereux v. Berryhill, Civil Action No. 15-13227-GAO, 2017 WL 1202645, at *5 (D. Mass. Mar. 31, 2017) ("there was no reversible error in relying, in part, on the [consultants'] opinions, which the ALJ found to be supported by other evidence in the record, even though those opinions were issued based on a partially incomplete evidence record"). Furthermore, the ALJ may rely on the opinion of a consultative medical examiner even when the examiner did not have the benefit of reviewing subsequent treatment records where the opinion proffered remains consistent with the record as a whole. See Abubakar v. Astrue, Civil Action No. 11-10456-DJC, 2012 WL 957623, at *12 (D. Mass. Mar. 21, 2012) ("ALJ may rely on older evidence when the information in that evidence remains accurate").

While it is true that additional evidence in the form of behavioral treatment notes from Lowell Community Health Center were added to the record after the completion of the state agency opinions in this case, this court nonetheless finds no reversible error in the ALJ's reliance on the above-noted opinions. In granting "significant weight" to the opinions of Drs. Cohen and Whitehorn, the ALJ emphasized that, having examined the entirety of the record, including the treatment notes post-dating the consultative opinions, she found their conclusions to be "accurate representation[s] of the entirety of the medical evidence of record." (Docket Entry # 13-2, Tr. 21). The record supports the finding. (Docket Entry # 13-2, Tr. 21) (Docket Entry # 13-5, Tr. 330-338), (Docket Entry # 13-6, Tr. 339-437) (Docket Entry # 13-17, Tr. 1382-85) (Docket Entry # 13-24, Tr. 1959-61, 1965-66) (Docket Entry # 13-31, Tr. 1965, 1993, 1996-97, 2001, 2004, 2011, 2015, 2018, 2028, 2030, 2040, 2084, 2090).

Likewise, in affording "great weight" to the opinions of Drs. Morocco and Husson, both of whom had been able to examine plaintiff, the ALJ emphasized that the opinions were "accurate characterization[s] of the totality of the evidence of record, including [that] made available at the hearing level." (Docket Entry # 13-2, Tr. 27). With respect to the underlying evidence of record, the ALJ specifically cited, in Morocco and Husson, the underlying treatment notes documenting intact memory, insight, and judgment as well as admitted improvements in plaintiff's depression and overall mental health as recently as March 2016. The ALJ also permissibly considered plaintiff's relatively conservative treatment and medication regime. See Genereux v. Berryhill, 2017 WL 1202645, at *4 (upholding ALJ's decision to afford "'some weight'" to opinion of consultative examiner because opinion was supported by substantial evidence in record, including evidence of claimant's conservative treatment plan) (internal citation omitted). The ALJ thus did not err in affording "significant weight" to the opinions of Drs. Cohen and Whitehorn, and "great weight" to the opinions of Drs. Morocco and Husson, because these opinions were supported by substantial evidence in the record. See Genereux v. Berryhill, 2017 WL 1202645, at *4-5; Martinez-Lopez v. Colvin, 54 F. Supp. 3d at 137; Abubakar v. Astrue, 2012 WL 957623, at *12.

In crediting the opinions of the state agency consultants, the ALJ did not, as plaintiff suggests, substitute her own judgment for that of a medical expert, nor was the ALJ required to seek additional medical expert testimony as to the entirety of plaintiff's mental health record. Ivins v. Colvin, Civil Action No. 12-11460-TSH, 2013 WL 6072890, at *10 (D. Mass. Nov. 15, 2013) ("ALJ was not required to seek additional expert medical advice, as there was substantial medical evidence on the record") (citing Rodriguez Pagan v. Sec'y of Health and Human Servs., 819 F.2d at 5); see also Evangelista v. Sec'y of Health and Human Servs., 826 F.2d 136, 144 (1st Cir. 1987) ("notion that there must always be some super-evaluator, a single physician who gives the factfinder an overview of the entire case-is unsupported by the statutory scheme, or by the caselaw, or by common sense, for that matter"). Plaintiff's claim that the ALJ did not afford "great weight" to the portion of Dr. Morocco's observations that plaintiff appeared "agitated and nervous" is equally misguided. In summarizing the opinion of Dr. Morocco, the ALJ referenced plaintiff's "reported history of depressive and anxious feelings," and acknowledged that Morocco diagnosed plaintiff with anxious distress. (Docket Entry # 13-2, Tr. 27). Moreover, Dr. Morocco's observation that plaintiff appeared agitated during the consultative exam was not an opinion as to plaintiff's ability to work, and the ALJ properly cited substantial evidence, both from Dr. Morocco as well as other sources in the record supporting the adoption of the mental RFC. See Kiklis v. Astrue, Civil Action No. 10-10699-NMG, 2011 WL 4768491, at *7 (D. Mass. Sept. 28, 2011) ("The ALJ need not address every medical observation as long as substantial evidence in the records supports his decision."). Specifically, in finding that Dr. Morocco's conclusion that plaintiff "is capable of following at least simple instructions" to be an accurate representation of the medical record as a whole, the ALJ pointed to "the generally stable and conservative mental health treatment, the claimant's admitted improvements as recently as February and March 2016, and his reliably normal interactions with assorted medical professionals." (Docket Entry # 13-2, Tr. 27) (Docket Entry # 13-14, Tr. 1075-97, 1137-72) (Docket Entry # 13-17, Tr. 1382-89) (Docket Entry # 13-24, Tr. 1955-67) (Docket Entry # 13-32, Tr. 2122-78). Plaintiff thus shows no error in asserting that the ALJ discounted a single observation by Dr. Morocco, when substantial evidence supported the overall RFC determination. See Sullivan v. Colvin, Civil Action No. 14-13772-LTS, 2015 WL 5613163 at *5 (D. Mass. Sept. 24, 2015) ("[p]ointing to one piece of evidence in the administrative record that might support a different RFC determination cannot successfully demonstrate that the ALJ did not rely upon substantial evidence in his assessment"). B. Substantial Evidence Supports ALJ's RFC Determination

Plaintiff additionally contends that the ALJ's finding that plaintiff is capable of performing light work was not supported by substantial evidence. (Docket Entry ## 17, 20). Specifically, he alleges that the ALJ failed to properly consider evidence of plaintiff's uncontrolled diabetes and its comorbidities, improperly relied on evidence of plaintiff's activities of daily living in determining whether plaintiff was disabled, and did not account for plaintiff's loss of concentration in the RFC that she ultimately adopted. (Docket Entry ## 17, 20). The Commissioner maintains that the ALJ properly considered all of the evidence before her and that the ultimate RFC determination was supported by substantial evidence. (Docket Entry # 19). The Commissioner is correct.

1. Evaluation of Diabetes Related Evidence

With respect to plaintiff's diabetes, plaintiff first argues that the ALJ erred in declining to consider plaintiff's diabetes a severe impairment at step two in the analysis. (Docket Entry # 17, p. 17). Plaintiff maintains that the ALJ failed to consider plaintiff's uncontrolled diabetes in conjunction with plaintiff's other impairments in her analysis at steps two, three, and four in violation of SSR 14-2p.²³ (Docket Entry ## 17, 20). Plaintiff further alleges that the ALJ ignored evidence of plaintiff's diabetic retinopathy and discounted plaintiff's complaints of pain in his extremities in her calculation of the RFC. (Docket Entry ## 17, 20). Plaintiff is incorrect on all counts.

23 This regulation, in pertinent part, requires the ALJ to assess a claimant's diabetes both individually as well as in conjunction with other impairments in the analysis at steps two, three, and four. See SSR 14-2p, 2014 WL 2472008, at *6-7 (June 2, 2014).

In her decision, the ALJ explained that while at step two she found plaintiff's diabetic neuropathy to be "severe," plaintiff's uncontrolled diabetes and its co-morbidities, including diabetic retinopathy, were not severe, because "the record fails to show that any of the aforementioned conditions, considered singly or in combination, have more than a minimal impact on the claimant's ability to perform even minimal basic work related tasks." (Docket Entry # 13-2, Tr. 18) (emphasis added). Although plaintiff contests this finding, it is ultimately inconsequential, as "[a]ny error at step two of the sequential analysis is harmless where the evaluation proceeds past step two and [the ALJ] considers all of the claimant's impairments at step four." Jones v. Colvin, Civil Action No. 12-40061-TSH, 2014 WL 575457, at *12 (D. Mass. Feb. 10, 2014) (citing Noel v. Astrue, Civil Action No. 11-30037-MAP, 2012 WL 2862141 (D. Mass. July 10, 2012)). The ALJ in this case did exactly that by proceeding to step four of the analysis and considering all of plaintiff's impairments, both severe and non-severe, in assessing the RFC. (Docket Entry # 13-2, Tr. 22-29).

Plaintiff's reliance on SSR 14-2p similarly shows no error on the part of the ALJ. At step two, the ALJ emphasized that plaintiff's impairment "considered singly or in combination" did not "have more than a minimal impact on the claimant's ability to perform even minimal basic work-related tasks." (Docket Entry # 13-2, Tr. 18) (emphasis added). Likewise, at step three, the ALJ noted that while no listing existed for diabetes, plaintiff's uncontrolled diabetes "was considered as a factor in meeting or equaling one of the [l]istings." (Docket Entry # 13-2, Tr. 18). Finally, at step four, the ALJ cited plaintiff's history of uncontrolled diabetes and subsequent complaints of pain resulting from diabetic neuropathy, in combination with plaintiff's other demonstrated impairments, in support of the ALJ's ultimate finding that plaintiff had greater physical limitations than suggested by the state agency physicians, Drs. Arzola, McInerny, and Weeratne. (Docket Entry # 13-2, Tr. 29). Plaintiff is thus incorrect when he states that the ALJ failed to consider his history of diabetes in conjunction with his other physical impairments. Additionally, plaintiff does not identify any specifically procedural violations on the part of the ALJ or point to any specific evidence that the ALJ failed to include in her analysis.

Plaintiff's suggestion that the ALJ discounted plaintiff's subjective complaints of pain in his extremities in her analysis at step four is equally misguided. While the ALJ did note "essentially normal findings on physical examination" in 2013, she also noted "confirmed evidence of right lower extremity axonal sensory polyneuropathy" in January 2014, as well as complaints of upper and lower extremity pain attributable to diabetic neuropathy in May 2014. (Docket Entry # 13-2, Tr. 24, 26). Furthermore, as discussed above, the ALJ ultimately assessed greater physical limitations than suggested by the state agency physicians, Drs. Arzola, McInerny and Weeratne, finding "[their] shared opinion suggesting that the claimant is capable of a medium exertional level of work to over-exaggerate the extent of claimant's actual physical capabilities." (Docket Entry # 13-2, Tr. 29). In making this finding, the ALJ specifically pointed to the fact that "assorted clinical examinations have repeatedly confirmed the presence of degenerative changes of the left shoulder, diabetic neuropathy . . . ischemic heart disease, and [the] newly diagnosed condition of venous insufficiency." (Docket Entry # 13-2, Tr. 29). Plaintiff has not produced any evidence suggesting greater limitations than those ultimately adopted by the ALJ in her RFC assessment, and thus has not "'demonstrate[d] that the evidence relied on by the ALJ is either insufficient [or] incorrect.'" Blais-Peck v. Colvin, Civil Action No. 14-30084-KAR, 2015 WL 4692456, at *6 (D. Mass. Aug. 6, 2015) (quoting Greene v. Astrue, Civil Action No. 11-30084-KPN, 2012 WL 1248977, at *3 (D. Mass. Apr. 12, 2012)). Remand on this basis would thus be improper. See Ortiz v. Colvin, Civil Action No. 13-12793-DPW, 2015 WL 4577106, at *8 (D. Mass. July 30, 2015) (remand improper where ALJ found greater limitations than those set forth in state agency reports because "[t]here is no reversible error when an ALJ gives a claimant the benefit of the doubt").

Plaintiff further contends that the ALJ improperly weighed the evidence of plaintiff's noncompliance with treatment of his diabetes and its co-morbidities. (Docket Entry ## 17, 20). Specifically, plaintiff alleges that the ALJ failed to make clear the role that plaintiff's noncompliance with treatment had in her ultimate determination that plaintiff was not disabled. (Docket Entry ## 17, 20). Plaintiff also maintains that SSR 16-3p required the ALJ to consider whether plaintiff's noncompliance with treatment was the result of mental illness, and that the ALJ failed to fulfill this obligation. (Docket Entry ## 17, 20).

Under the regulations:

[I]f the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record.

SSR 16-3p, 2017 WL 5180304, at *9 (Oct. 25, 2017); see also Balaguer v. Astrue, 880 F.Supp.2d 258, 269 (D. Mass. 2012) ("'A claimant's failure to follow prescribed medical treatment contradicts subjective complaints of disabling conditions and supports [a hearing officer's] decision to deny benefits.'") (quoting Russell v. Barnhart, 111 Fed. App'x 26, 27 (1st Cir. 2004)). Furthermore, the regulation specifies that the ALJ will not find the alleged intensity and persistence of an individual's symptoms inconsistent with the overall record on this basis "without considering possible reasons he or she may not comply with treatment" and that the ALJ "may need to contact the individual regarding the lack of treatment or, at an administrative proceeding, ask why he or she has not complied with or sought treatment in a manner consistent with his or her complaints." SSR 16-3p, 2017 WL 5180304, at *9 (bold typeface omitted).

In the case at bar, the ALJ, contrary to plaintiff's assertions, did explain the role that plaintiff's noncompliance with his diabetes treatment had on her ultimate finding that plaintiff was not disabled. The ALJ specified that while not dispositive, plaintiff's noncompliance with prescribed treatment was one of several reasons that the ALJ found plaintiff's "allegations of disabling limitations" generally inconsistent with the entirety of the medical record. (Docket Entry # 13-2, Tr. 29). Furthermore, plaintiff is mistaken when he suggests that the ALJ did not consider potential reasons for plaintiff's noncompliance with treatment. The ALJ, in accordance with the regulations, asked plaintiff at the hearing why he continued to struggle with his diabetes and what the reasons were for his noncompliance with treatment. (Docket Entry # 13-5, Tr. 312). Plaintiff, at that time, did not answer that his mental health interfered with his compliance, nor did he indicate that he did not understand the nature of his condition or how to comply with prescribed treatment. (Docket Entry # 13-5, Tr. 312). Rather, plaintiff relayed to the ALJ that he struggles to control his condition because he often oversleeps and misses his morning dose of insulin. (Docket Entry # 13-5, Tr. 312). The ALJ thus properly considered the reasons for plaintiff's noncompliance and was permissibly mindful of plaintiff's history of noncompliance in making her finding as to disability. See SSR 16-3p, 2017 WL 5180304, at *9-10; see also Balaguer v. Astrue, 880 F.Supp.2d at 269.

2. Reliance on Plaintiff's Activities of Daily Living

Plaintiff also submits that the ALJ impermissibly considered his activities of daily living in making her RFC determination. (Docket Entry # 17). Plaintiff maintains that the ALJ essentially equated his ability to perform simple tasks, such as making a sandwich and watching television, with an ability to perform full-time work. (Docket Entry # 17). The Commissioner responds that the ALJ properly considered the inconsistency between plaintiff's daily activities and his subjective complaints of disability as but one reason to support a negative credibility finding. (Docket Entry # 19). The Commissioner is correct.

"While a claimant's performance of household chores or the like ought not be equated to an ability to participate effectively in the workforce, evidence of daily activities can be used to support a negative credibility finding." Teixeira v. Astrue, 755 F. Supp. 2d 340, 347 (D. Mass. 2010) (citing Berrios Lopez v. Sec'y of Health and Human Servs., 951 F.2d 427, 429 (1st Cir. 1991)). The ALJ in this case did the latter. She did not, as plaintiff suggests, equate his ability to make a sandwich with an ability to perform full-time work. Rather, she properly contrasted plaintiff's allegations of disabling limitations with his daily activities and considered the discrepancy as but one factor in determining plaintiff's credibility. See Coskery v. Berryhill, 892 F.3d 1, 7 (1st Cir. 2018) ("[W]e do not see how the ALJ can be said to have acted in contravention of the requirements of SSR 16-3p in considering the evidence of Coskery's daily activities."). As the Commissioner notes, the ALJ considered other factors in finding plaintiff's subjective allegations of disability inconsistent with the record as a whole, including his relatively conservative mental and physical health treatment, his "largely intact physical, cognitive, and emotional functioning" for the relevant period, and the fact that he was able to successfully travel outside of the continental United States without evidence of needing assistance. (Docket Entry # 13-2, Tr. 29). The ALJ thus reasonably found plaintiff's subjective complaints to be inconsistent with the record, and plaintiff has shown no error. See Flood v. Colvin, Civil Action No. 15-2030, 2016 WL 6500641, at *1 (1st Cir. Oct. 20, 2016) (upholding ALJ's decision to discount claimant's subjective complaints based on history of conservative treatment, lack of supporting objective medical evidence, and claimant's daily activities).

3. Failure to Account for Loss of Concentration in the RFC

Finally, plaintiff argues that ALJ erred in adopting an RFC that, plaintiff contends, does not account for plaintiff's loss of concentration, persistence, and pace. (Docket Entry # 17). The Commissioner maintains that the ALJ adequately accounted for plaintiff's moderate limitations in her calculation of the RFC. (Docket Entry # 19). Here again, the Commissioner is correct.

With respect to an ALJ's RFC determination, remand is proper where the ALJ failed to properly develop her findings and conclusions regarding the claimant's limitations and the effects those limitations had, if any, on the claimant's RFC. Anderson v. Berryhill, 368 F.Supp.3d 128, 136 (D. Mass. 2019). Generally, "an ALJ does not account 'for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'" Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015) (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). Rather, "the ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id. An ALJ may properly account for a claimant's ability to stay on task "'by restricting the claimant to simple, routine, unskilled work where the record supports this conclusion, either through physician testimony, medical source statements, consultative examinations, or other evidence that is sufficiently evident to the reviewing court.'" Le v. Colvin, Civil Action No. 15-30157-KAR, 2016 WL 7104835, at *11 (D. Mass. Dec. 5, 2016) (quoting St. Clair v. Colvin, Civil Action No. 13-00571, 2015 WL 5310777, at *16 (W.D. Va. Sept. 11, 2015)).

In the case at bar, the ALJ adequately accounted for plaintiff's moderate difficulties in concentration, persistence, and pace by relying on the opinions of the consultative examiners and other medical sources who translated those limitations into specific, work-related abilities. For example, in determining the RFC, the ALJ cited the opinion of Dr. Husson, who acknowledged that plaintiff has some limitations involving pace, persistence, and concentration from an emotional perspective, and nonetheless found that plaintiff could follow short, basic instructions and interact normally with others. (Docket Entry # 13-2, Tr. 27) (Docket Entry # 13-14, Tr. 1121-22). Moreover, the ALJ afforded "significant weight" to the opinions of Drs. Cohen and Whitehorn, who found that plaintiff had "moderate difficulties with concentration," but nonetheless remained capable of performed short, simple tasks and "relating adequately with others." (Docket Entry # 13-2, Tr. 21). The ALJ thus did not fail to account for plaintiff's limitations in maintaining pace, persistence, and concentration in her ultimate adoption of the RFC. See Mascio v. Colvin, 780 F.3d at 638.

CONCLUSION

In accordance with the foregoing discussion, this court RECOMMENDS ²⁴ that plaintiff's motion for an order reversing or remanding the decision of the Commissioner (Docket Entry # 16) be DENIED. This court further RECOMMENDS ²⁵ that the Commissioner's motion to affirm the decision of the Commissioner (Docket Entry # 18) be ALLOWED.

24 Any objection to this Report and Recommendation must be filed with the Clerk of Court within 14 days of receipt of the Report and Recommendation to which objection is made and the basis for such objection. See Fed. R. Civ. P. 72(b). Any party may respond to another party's objections within 14 days after service of the objections. Failure to file objections within the specified time waives the right to appeal the order.

25 See the previous footnote. --------

/s/ Marianne B. Bowler

MARIANNE B. BOWLER

United States Magistrate Judge