Opinion
Civil Action No. 20-10966-JCB
08-13-2021
Gail Ann RICHARDS, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner, Social Security Administration, Defendant.
Stephen L. Raymond, Raymond Law, Middleton, MA, for Plaintiff. Paul Nitze, Social Security Administration-Office of the General Counsel, Boston, MA, for Defendant Andrew Saul.
Stephen L. Raymond, Raymond Law, Middleton, MA, for Plaintiff.
Paul Nitze, Social Security Administration-Office of the General Counsel, Boston, MA, for Defendant Andrew Saul.
ORDER ON RICHARDS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND ACTING COMMISSIONER'S MOTION TO AFFIRM
[Docket Nos. 17, 21]
Boal, M.J.
This is an action for judicial review of a final decision by Kilolo Kijakazi, the Acting Commissioner of the Social Security Administration ("Commissioner"), denying Gail Ann Richards’ applications for disability insurance benefits ("DIB") and disabled widows benefits ("DWB"). Richards asserts that the Commissioner's decision denying her such benefits – memorialized in an April 26, 2019 decision of an administrative law judge ("ALJ") – is in error, and moves that the decision should be reversed or, in the alternative, remanded for a new hearing. Docket No. 18. The Commissioner, in turn, has moved to affirm. Docket No. 21. For the following reasons, this Court remands the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further findings and/or proceedings consistent with this order.
On August 18, 2020, the parties consented to the jurisdiction of a United States magistrate judge for all purposes. Docket No. 9.
I. FACTS AND PROCEDURAL HISTORY
A. Procedural History
Richards filed a previous, unsuccessful application for benefits, which was denied on June 19, 2016. (Administrative Record ("AR") 49-58). Richards appealed that decision to the Appeals Council, which denied her request to review on February 10, 2017. (AR 63-68). Richards then filed applications for DIB and DWB on April 7, 2017, alleging disability as of June 10, 2016. (AR 261-69). She alleged she was disabled due to disorders of the back (discogenic and degenerative). (AR 94). The application was denied initially (AR 172-74), and on reconsideration (AR 184-86). On January 24, 2019, ALJ William Ross held a hearing at which Richards and vocational expert ("VE") Michael Dorval appeared and testified. (AR 17-41).
Citations to the Administrative Record refer to Docket No. 13; all page numbers correspond to those in the CM/ECF header and not the record's Bates numbers.
The ALJ issued a decision on April 26, 2019, finding that Richards was not disabled from June 10, 2016, her alleged onset date, through the date of that decision. (AR 137-46). On April 29, 2019, Richards requested review of that decision from the Appeals Council. (AR 252). The Appeals Council denied Richards’ request for review on March 17, 2020, making the ALJ's decision the final decision of the Commissioner. (AR 5-7).
The decision was originally issued on February 21, 2019. (AR 137). However, due to administrative error, the agency was unable to determine if it was ever delivered to Richards. Id. Accordingly, the decision was revised only as to the date and reissued as of April 26, 2019. Id.
Richards filed this action on May 19, 2020. Docket No. 1. On February 16, 2021, Richards filed a motion for judgment on the pleadings, Docket No. 17. On April 5, 2021, the Commissioner filed a motion for an order affirming her decision. Docket No. 21. On April 9, 2021, Richards filed a reply memorandum, Docket No. 23; on April 22, the Commissioner filed a surreply. Docket No. 24. Each party filed a notice of supplemental authorities. Docket Nos. 25, 28.
B. Medical History
1. Background
Richards was 57 years old on the alleged onset date. Docket No. 18 at 2. She has a 12th-grade education and has worked in the past as a bookkeeping clerk, a secretary, and a data entry clerk. (AR 22, 41).
2. Diagnostic Imaging And Testing
A July 2016 lumbar magnetic resonance imaging (MRI) scan showed lumbosacral spondylosis with grade I anterolisthesis of L5-S1 region of Richards’ spine. (AR 417). That MRI also indicated an associated posterior annular bulge and bilateral foraminal stenosis, with impingement of the L5 nerve roots and a small anterior annular tear at the L3-L4 level. (AR 417). An April 2016 x-ray is consistent with that MRI. (AR 436-37). An August 23, 2018 bone density scan indicated osteopenia. (AR 524-25). A December 2016 x-ray of Richards’ left foot was normal. (AR 434-35). As a result of chronic pain in her right hand, she received a May 2018 x-ray of her right wrist that revealed a gullwing erosive deformity with soft tissue swelling and hypertrophic degenerative changes at the right second DIP joint, consistent with osteoarthritis. (AR 510).
3. Treatment Records
Between May 2017 and August 2018, Richards sought treatment with Dr. Asnat Koehne, M.D. Records prepared from Richards’ May 31, 2017 visit reflect active problems including arthralgia of the right ankle, arthralgia of the toe of the left foot, bulging lumbar disc, cervical neuritis, chronic bilateral low back pain, knee pain, lumbosacral spondylosis without myelopathy, pain in the thoracic spine, and wrist symptoms. (AR 392). At that time, Richards declined a referral to an orthopedic specialist. (AR 397). Records of Richards’ appointments with Dr. Koehne continue to recite these problems throughout her treatment.
On May 16, 2016, Richards was seen by Michelle Graeff, P.A., for chronic axial back pain. Graeff's notes for that visit indicate that Richards suffered from chronic back pain and that her x-rays revealed grade I L4-L5 spondyloisthesis and advanced L4-5 degenerative disc disease, a finding which was also reflected on her MRIs, along with moderately advanced degenerative disease L4-L5. (AR 383). At that appointment, Richards declined cortisone injections due to the high cost of insurance copays. (AR 384). She began therapeutic naproxen and home exercises. (AR 384).
4. Treating Physician's Opinion
On September 9, 2017, Dr. Koehne completed a spinal impairment questionnaire. (AR 473-79). Her diagnosis was "lumbosacral degenerative spinal and disc disease." (AR 473). She indicated that Richards had daily and constant pain and intermittent sciatica, precipitated by sitting and bending. (AR 475). Dr. Koehne noted that Richards’ pain was "frequently" severe enough to interfere with Richards’ attention and concentration. (AR 477). She indicated that Richards could sit for up to an hour and stand or walk for up to an hour in an eight-hour workday. (AR 476).
Dr. Koehne stated that "I don't believe [Richards] can work an 8-hour day even with breaks," and noted that Richards’ condition would interfere with her ability to maintain her neck in a constant position, as would be required while looking at a computer screen. (AR 478). Dr. Koehne also noted that Richards’ condition was likely to produce good days and bad days, and that she was likely to be absent from work more than three times a month as a result of her conditions. (AR 478).
C. Richards’ Testimony At The Hearing
Richards testified at the hearing. (AR 21-40). She testified that she lived with her adult son, and had not worked since her alleged onset date of June 10, 2016. (AR 22-23). She represented that she could drive, but only short distances. (AR 22). Richards noted that she could not sit for longer than two and a half hours before experiencing pain in her right and occasionally left hip, which she rated at a "seven or eight" on a ten-point scale, and that she must lay down to relieve the pain. (AR 27). She reported a shooting pain in her right wrist while typing. (AR 28-29). Richards described trouble sleeping due to her pain, which caused fatigue during the day. (AR 30). Her pain also caused her to lay down between two and four times a day for an hour to an hour and a half at a time. (AR 30).
Richards reported that she was able to clean and shop for groceries by herself, but could not cook for longer than a half an hour, because of her difficulty standing. (AR 35). She reported that she could do laundry but needed help to lift baskets. (AR 35).
II. STANDARD OF REVIEW
A court may not disturb the Commissioner's decision if it is grounded in substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is such relevant evidence as a reasonable mind accepts as adequate to support a conclusion. Biestek v. Berryhill, ––– U.S. ––––, 139 S.Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) ; Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). The Supreme Court has defined substantial evidence as "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Thus, even if the administrative record could support multiple conclusions, a court must uphold the Commissioner's findings "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion." Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (citation and internal quotation marks omitted).
A denial of benefits, however, will not be upheld if there has been an error of law in the evaluation of a particular claim. See Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In the end, the court maintains the power, in appropriate circumstances, "to enter ... a judgment affirming, modifying, or reversing the [Commissioner's] decision, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
III. DISCUSSION
A. Disability Standard And The Commissioner's Decision
The Social Security Act (the "Act") defines disability, in part, as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual is considered disabled under the Act
only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). "The definition of disability for disabled widow[ ]’s benefits is the same as for the standard disability case ...." Andrew V. v. Saul, No. 2:19-CV-00392-MKD, 2020 WL 4572682, at *2 (E.D. Wash. Aug. 7, 2020) ; see 42 U.S.C. § 402(e)(1)(B)(ii).; see 42 U.S.C. § 402(e)(1)(B)(ii).
In determining disability, the Commissioner follows the five-step protocol described by the First Circuit as follows:
First, is the claimant currently employed? If he is, the claimant is automatically considered not disabled.
Second, does the claimant have a severe impairment? A "severe impairment" means an impairment "which significantly limits the claimant's physical or mental capacity to perform basic work-related functions." If the claimant does not have an impairment of at least this degree of severity, he is automatically considered not disabled.
Third, does the claimant have an impairment equivalent to a specific list of impairments in the regulations’ Appendix 1? If the claimant has an impairment of so serious a degree of severity, the claimant is automatically found disabled.
....
Fourth, does the claimant's impairment prevent him from performing work of the sort he has done in the past? If not, he is not disabled. If so, the agency asks the fifth question.
Fifth, does the claimant's impairment prevent him from performing other work of the sort found in the economy? If so, he is disabled; if not, he is not disabled.
Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).
On April 26, 2019, the ALJ issued a revised decision finding that Richards was not disabled for the purposes of both DIB and DWB. (AR 137-46). The ALJ found that Richards met the insured status requirements through June 30, 2016 and met the non-disability requirements for DWB. (AR 140). The ALJ then followed the five-step analytical framework and found the following. At Step One, Richards had not engaged in substantial gainful activity since her alleged onset date. (AR 140). At Step Two, Richards suffered from the following severe impairments: degenerative disc disease of the lumbar, thoracic and cervical spine; left foot arthralgia, right ankle osteoarthiritis, and right DIP joint osteoarthritis of the hand. (AR 140). At Step Three, Richards did not have an impairment or combination of impairments listed on or equal to a listed impairment of 20 C.F.R. §§ 404.1520(d), 1525, or 1526. (AR 141).
Prior to proceeding to Step Four, the ALJ determined that Richards had the residual functional capacity ("RFC") to perform sedentary work except for the following limitations and restrictions:
[T]he claimant can lift and carry 10 pounds occasionally and less than 10 pounds frequently, as well as sit for six hours, and stand or walk for two hours in an eight-hour day. The claimant can occasionally push and pull with her right lower extremity. She must have the ability to alternate between sitting and standing for five minutes every hour, but positional change would not render her off-task. She cannot climb ladders, ropes or scaffolds. The claimant can frequently handle with the dominant right upper extremity. She can occasionally kneel, stoop, balance, crouch, crawl, and climb stairs and ramps. She must avoid concentrated exposure to extreme cold, unprotected heights and dangerous machinery.
(AR 141). With this RFC in mind, the ALJ determined at Step Four that Richards remained capable of performing her past work as a bookkeeping clerk, secretary, or data entry clerk. (AR 145). Accordingly, the ALJ determined that Richards was not disabled, and did not proceed to Step Five of the framework. (AR 145).
B. The Treating Physician Rule
In 2016, the SSA proposed a new rule regarding its treatment of medical opinion evidence. The new rule, codified at 20 C.F.R. § 404.1520c, took effect on March 27, 2017. It states that "[f]or claims filed before March 27, 2017, the rules in § 404.1527 apply." 20 C.F.R. § 404.1520c. The new rule does not accord any "defer[ence] or specific evidentiary weight, including controlling weight," to medical opinions from a claimant's treating medical provider. 20 C.F.R. § 404.1520c(a).
By contrast, for claims filed prior to March 27, 2017, a treating physician's opinion is given "controlling weight" so long as it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(c)(2). Even where a treating physician's opinion is not accorded controlling weight, it must be evaluated considering factors that include whether the source of the opinion examined the claimant; whether the source of the opinion had a treatment relationship with the claimant, and if so, the length and nature of that treatment relationship; and the degree of supportability and consistency of the opinion. Id. In weighing a treating physician's opinion, the ALJ is required to give "good reasons" in the decision for the weight assigned to a treating physician's opinion. Id.
C. Richards’ Challenges To The ALJ's Decision
Richards argues that the ALJ erred in two respects: (1) the ALJ failed to use the correct standard in considering medical opinions, Docket No. 18 at 9; and (2) the ALJ failed to properly evaluate Richards’ subjective statements at the hearing. Id. at 17.
1. The ALJ Failed To Apply The Proper Legal Standard
Richards contends that the ALJ used an incorrect filing date when adjudicating her claim, and consequently applied an incorrect rule when examining the medical opinions in her case. Docket No. 18 at 9-12. Richards contends that she is entitled to a June 17, 2016 protective filing date and therefore is entitled to have her case evaluated under the treating physician rule in effect at that time. Id. at 10. She points to the Appeals Council's February 10, 2017 decision denying review of her prior claim, which states:
If you file a new claim for disability insurance benefits within 6 months after you receive this letter, we can use June 17, 2016, the date of your request for review, as the date of your new claim.
(AR 64). This letter was issued after the effective date of the rule was announced. Richards notes that the claim underlying this action was filed on April 3, 2017, less than two months from the date of the Appeals Council's decision. Docket No. 23 at 2; (AR 94-95; 132-33). Therefore, Richards argues, she is entitled to a protective filing date of June 17, 2016—a date which would require application of the older § 404.1527 standard, not the newer standard.
The Commissioner does not dispute that the Appeals Council represented to Richards that she was entitled to a June 17, 2016 protective filing date, nor does she dispute that Richards filed her new application within the appropriate time period. Rather, the Commissioner argues that Richards has waived this argument by not raising it earlier, and that, in any event, this supposed error is harmless because substantial support underlies the ALJ's decision. Docket No. 22 at 10-11.
a. Waiver
The Commissioner maintains that because Richards "affirmatively accepted the ALJ's analysis of the opinions under the new regulations and made substantive arguments based on evaluation of the opinion evidence pursuant to 20 C.F.R. § 404.1520c," she has adopted the new regulation and waived the argument. Docket No. 24 at 2. This Court disagrees.
It would make no sense for Richards to raise the issue before the ALJ as she was entitled to rely on the Commissioner's promise of a June 17, 2016 protective filing date. "Social Security proceedings are inquisitorial rather than adversarial," and the ALJ has an independent duty to adequately decide the case. See Sims v. Apfel, 530 U.S. 103, 110-11, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000) ; see Carr v. Saul, ––– U.S. ––––, 141 S. Ct. 1352, 1359, 209 L.Ed.2d 376 (2021). Even where problems arise before the hearing, a party's failure to correct them "hardly demand[s] that the penalty for overlooking an argument is forfeiture." Carr, 141 S. Ct. at 1363 (Thomas, J., concurring in part). This Court finds no basis to rule that Richards waived her argument at the ALJ level.
The Commissioner rightly notes that in a letter to the Appeals Council, Richards made arguments based upon the new regulations. Docket No. 22 at 10; see AR 379-82. For the following reasons, that letter does not constitute a waiver.
In Sims, the Supreme Court held that a claimant does not waive an argument where he or she omits it from a request for a review by the Appeals Council. Sims, 530 U.S. at 112, 120 S.Ct. 2080. The Court held that "a judicially created issue-exhaustion requirement is inappropriate" for social security cases. Id. "Claimants who exhaust administrative remedies need not also exhaust issues in a request for review by the Appeals Council in order to preserve judicial review of those issues." Id. Far from a situation in which "the parties are expected to develop the issues," the Appeals Council is duty-bound to review the record and identify issues for itself. Id., 530 U.S. at 110, 112, 120 S.Ct. 2080.
In Mills v. Apfel, however, the First Circuit declined to extend this rule to issues not raised in the first instance before a hearing officer based on concerns for administrative efficiency. Mills v. Apfel, 244 F.3d 1, 8 (1st Cir. 2001). Mills recognized Sims, however, and made clear that "failing to raise an issue at the Appeals Council level does not debar a claim that the ALJ erred." Id.
The Commissioner relies heavily on Mills. Docket No. 24 at 2 ( Mills is "dispositive."). She even argues that the "edict in Mills that a claimant need not raise an issue before the Appeals Council is inapposite. Id. (emphasis in original). The Commissioner goes too far. The Supreme Court decision in Carr recently reaffirmed Sims. Indeed, the Carr decision extended Sims at least in certain cases to administrative hearings. The Carr decision stated ‘[m]uch of what the Sims opinions said about Appeals Council review applies equally to ALJ proceedings." Carr, 141 S.Ct. at 1359. In so finding, Carr further stated:
Like the form supplied by the SSA to request Appeals Council review, the form to request an ALJ hearing provides roughly three lines for claimants to explain their disagreement with the agency's determination, and the SSA "estimate[s]" that it will take just "10 minutes to read the instructions, gather the facts, and answer the questions" on that form. SSA, Request for Hearing by Administrative Law Judge, Form HA–501–U5. Last, as with the Appeals Council, SSA "regulations provide no notice that claimants must ... raise specific issues before" the ALJ "to preserve them for review in federal court." Sims, 530 U.S. at 113, 120 S.Ct. 2080 (opinion of O'Connor, J.).
Id. at 1359-60. Though the Commissioner points to Richards’ letter to the Appeals Council as an indication of waiver or adoption, briefing before the Appeals Council is not required. Indeed, the structure of Appeals Council review "strongly suggests that the Council does not depend much, if at all, on claimants to identify issues for review." Sims, 530 U.S. at 112, 120 S.Ct. 2080. For that reason, "a claimant does not waive a claim where he or she omits it from a request for review by the Appeals Council[.]" Cameron v. Berryhill, 356 F. Supp. 3d 186, 193 (D. Mass. 2019). If the failure to submit to the Appeals Council any reasons at all for review does not waive a claimant's argument, it is not clear why submitting reasoning, even incorrect reasoning, would effect a waiver. The Appeals Council has the responsibility to determine the issues for itself, and the parties’ submissions do not alter that duty.
For all these reasons, Richards has not waived her argument. This Court finds that Richards is entitled to the application of the June 17, 2016 protective filing date—a date affirmatively promised to her by the SSA itself.
b. Harmless Error
The Commissioner next urges that even if the ALJ erroneously applied the § 404.1520c standard in this case, the error was harmless because "[n]o matter which standard applied, substantial evidence supports the ALJ's consideration of the opinion evidence." Docket No. 22 at 12. The ALJ's decision is entitled to significant deference from this Court. Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) ("Substantial-evidence review is more deferential than it might sound to the lay ear ...."). However, this deference does not extend to legal error: "The ALJ's findings of fact are conclusive when supported by substantial evidence, but are not conclusive when derived by ... misapplying the law ...." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). "While an error of law by the ALJ may necessitate a remand, a remand is not essential if it will amount to no more than an empty exercise." Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000) (internal citation omitted). However, "[w]hen an agency has not considered all relevant factors in taking action, ... the reviewing court ordinarily should remand the case to the agency." Seavey v. Barnhart, 276 F.3d 1, 12 (1st Cir. 2001).
Because Richards’ protective filing date was prior to March 27, 2017, the applicable rule was § 404.1527, which, as discussed above, states that "[g]enerally, we give more weight to medical opinions from your treating sources." 20 C.F.R. § 404.1527(c)(2).
By contrast, § 404.1520c does not extend controlling weight to any medical opinions, and instead employs a new set of considerations to determine the examination of medical opinions. 20 C.F.R. § 1520c. The new rule deems the factors of supportability of the opinion and consistency with other evidence to be "the most important factors." Id. at (b)(2).
Here, the ALJ's analysis proceeds along the path laid out by § 404.1520c, not § 404.1527. The ALJ reviewed the medical opinions, focusing on whether they are well-supported and consistent with the record. (AR 144-45). The ALJ failed to fully consider the factors prescribed by § 404.1527 ; indeed, he expressly declined to apply them. (AR 144).
By contrast, the appropriate standard here required the ALJ to accord controlling weight to Dr. Koehne's opinion unless "(1) the opinion was not well-supported or (2) it was inconsistent with other substantial evidence in the record." Doreen S. v. Saul, No. CV 20-128 WES, 2021 WL 2154815, at *3 (D.R.I. May 27, 2021). Here, though the ALJ did not explicitly make these findings on the record, he found that the opinion was "unsupported due to the rather excessive functional limitations given, in contrast with the actual limited treatment record in this case." (AR 144).
However, under the appropriate standard, even where an ALJ declines to accord controlling weight to a treating physician's opinion, it still must be evaluated according to a list of factors. As relevant here, an ALJ must consider whether the source of the opinion examined the claimant, whether the source of the opinion had a treatment relationship with the claimant, and if so, the length and nature of that treatment relationship. 20 C.F.R. § 404.1527(c). Here, though he arguably considered the supportability and consistency of Dr. Koehne's opinion, the ALJ failed to consider the factors centered on Dr. Koehne's treatment relationship with Richards. Given that the Dr. Koehne treated Richards as a primary care physician, it is conceivable that given consideration under the appropriate standard, the ALJ would have given additional weight to her opinion. In addition, the ALJ found the findings of PA Graeff to be persuasive. (AR 143). For claims filed before March 27, 2017, the findings of a physician assistant, however, are not considered to be from accepted medical sources. Compare 20 C.F.R. § 404.1502(8) (2021) with 20 C.F.R. §§ 404.1502(8) and 404.1513 (2016). Accordingly, while it is for the agency, not the courts, to weigh the evidence, this Court finds that there is sufficient evidence to support Richards’ request for a remand such that remand would not be an empty exercise. See, e.g., Garcia v. Colvin, No. 14-CV-3725 DF, 2015 WL 5786506 at *26 (S.D.N.Y. Sept. 29, 2015). Accordingly, this Court vacates the Commissioner's final decision for reconsideration under the appropriate rule.
2. Subjective Symptoms
Richards asserts that the ALJ failed to properly evaluate her subjective symptoms, instead using "boilerplate language" indicating that Richards’ subjective testimony about her symptoms "was not entirely consistent with the medical and other evidence in the record ...." Docket No. 18 at 18. The ALJ found that Richards’ "statements concerning the intensity, persistence, and limiting effects of her symptoms are not entirely consistent with the medical and other evidence in the record for the reasons explained in this decision." (AR 138).
In evaluating a claimant's symptoms, the ALJ must follow a two-step process: first, he must determine whether there is an underlying medically determinable physical impairment that could reasonably be expected to produce the claimant's symptoms; and if there is then the ALJ must evaluate the intensity and persistence of the claimant's symptoms so that he can determine how those symptoms limit the claimant's capacity for work. 20 C.F.R. §§ 404.1529(b), (c)(1).
In determining a claimant's RFC, an ALJ must consider a claimant's subjective allegations of functional limitations, but she is not required to take those allegations at face value and may reject them where they are unsupported by the medical evidence, treatment history, and activities of daily living. See Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 194-95 (1st Cir. 1987) ; Avery v. Sec'y of Health & Human Servs., 797 F.2d 19, 22-23 (1st Cir. 1986) ; Winn v. Heckler, 762 F.2d 180, 181 (1st Cir. 1985) ; 20 C.F.R. §§ 404.1529. Specifically, the ALJ must consider the so-called " Avery factors," which are the claimant's daily activities, functional restrictions, non-medical treatment, medications and side-effects, precipitating and aggravating factors, and the nature, location, onset, duration, frequency, radiation, and intensity of the symptoms. Avery, 797 F.2d at 28-29. An ALJ is not required to discuss each of the Avery factors in order to sufficiently support a credibility determination. See, e.g., Foley v. Astrue, No. 09-10864-RGS, 2010 WL 2507773 * 7, 2010 U.S. Dist. LEXIS 60174 * 21 (D. Mass. June 17, 2010).
Here, the ALJ found as follows:
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause some of her alleged symptoms. However, the claimant's statements concerning the intensity, persistence and limiting effects of her symptoms are not entirely consistent with the medical and other evidence in the record for the reasons explained in this decision.
(AR 142).
Because the standard the ALJ should have applied with respect to Dr. Koehne's medical opinion might have afforded it additional weight, and may have corroborated Richards’ subjective symptoms, remand would not be an "empty exercise." See Doreen S., 2021 WL 2154815 at *4 ("If the [treating physician's] opinion were given more weight, it would help corroborate Plaintiff's testimony regarding her symptoms. Thus, the ALJ's findings regarding Plaintiff's subjective symptoms should also be reconsidered on remand."). The ALJ's findings on these issues should also be reconsidered on remand.
IV. ORDER
For the foregoing reasons, Richards’ motion is granted to the extent that it requests a remand. This Court vacates the Commissioner's final decision and remands the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further findings and/or proceedings consistent with this order.