David T. v. O'Malley

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
DAVID T. 	:
:
v. 	: 	C.A. No. 23-00232-MSM
:
MARTIN O’MALLEY, 	:
Commissioner 	:
Social Security Administration 	:
REPORT AND RECOMMENDATION
Lincoln D. Almond, United States Magistrate Judge
This matter is before the Court for judicial review of a final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying Supplemental Security Income
(“SSI”) under the Social Security Act (the “Act”), 42 U.S.C. § 405(g). Plaintiff filed his Complaint
on June 7, 2023 seeking to reverse the Decision of the Commissioner. 	On November 3, 2023,
Plaintiff filed a Motion to Reverse or Remand. (ECF No. 12). On December 20, 2023, Defendant
filed a Motion to Affirm the Commissioner’s Decision. (ECF No. 15). No reply brief was filed.
This matter has been referred to me for preliminary review, findings, and recommended
disposition. 28 U.S.C. § 636(b)(1)(B); LR Cv 72. Based upon my review of the record, the parties’
submissions, and independent research, I find that there is substantial evidence in this record to
support the Commissioner’s decision and findings that Plaintiff is not disabled within the meaning
of the Act. Consequently, I recommend that Plaintiff’s Motion to Reverse or Remand (ECF No.
12) be DENIED and that the Commissioner’s Motion to Affirm the Commissioner’s Decision
(ECF No. 15) be GRANTED.
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I. 	PROCEDURAL HISTORY
Plaintiff filed an application for SSI on March 17, 2021 (Tr. 179-88) alleging disability
since December 1, 2020. The Application was denied initially on November 15, 2021 (Tr. 50-58)
and on reconsideration on February 9, 2022. (Tr. 59-67). Plaintiff requested an Administrative
Hearing. 	On August 18, 2022, a hearing was held before Administrative Law Judge Jason
Mastrangelo (the “ALJ”) at which time Plaintiff, represented by counsel, and a Vocational Expert
(“VE”) appeared and testified. (Tr. 29-48). The ALJ issued an unfavorable decision to Plaintiff
on August 31, 2022. (Tr. 11-24). The Appeals Council denied Plaintiff’s request for review on
May 3, 2023. (Tr. 1-3). Therefore, the ALJ’s decision became final. A timely appeal was then
filed with this Court.
II. 	THE PARTIES’ POSITIONS
Plaintiff argues that the ALJ failed to properly evaluate the consulting report of Dr. Parsons
and that the ALJ’s RFC assessment is not supported by substantial evidence.
The Commissioner responds that Plaintiff is improperly asking the Court to reweigh the
evidence and that the ALJ’s findings are supported by the record and must be affirmed.
III. 	THE STANDARD OF REVIEW
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405(g). Substantial evidence is more than a scintilla – i.e., the evidence must do more
than merely create a suspicion of the existence of a fact and must include such relevant evidence
as a reasonable person would accept as adequate to support the conclusion. Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam); Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st
Cir. 1981).
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Where the Commissioner’s decision is supported by substantial evidence, the court must
affirm, even if the court would have reached a contrary result as finder of fact. Rodriguez Pagan
v. Sec’y of HHS, 819 F.2d 1, 3 (1st Cir. 1987); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir.
1991). The court must view the evidence as a whole, taking into account evidence favorable as
well as unfavorable to the decision. Frustaglia v. Sec’y of HHS, 829 F.2d 192, 195 (1 st Cir. 1987);
Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (court also must consider evidence detracting
from evidence on which Commissioner relied).
The court must reverse the ALJ’s decision on plenary review, however, if the ALJ applies
incorrect law, or if the ALJ fails to provide the court with sufficient reasoning to determine that
he or she properly applied the law. Nguyen v. Chater, 172 F.3d 31, 35 (1 st Cir. 1999) (per curiam);
accord Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11 th Cir. 1991). Remand is unnecessary where
all of the essential evidence was before the Appeals Council when it denied review, and the
evidence establishes without any doubt that the claimant was disabled. Seavey v. Barnhart, 276
F.3d 1, 11 (1st Cir. 2001) citing, Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
The court may remand a case to the Commissioner for a rehearing under sentence four of
42 U.S.C. § 405(g); under sentence six of 42 U.S.C. § 405(g); or under both sentences. Seavey,
276 F.3d at 8. To remand under sentence four, the court must either find that the Commissioner’s
decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the
law relevant to the disability claim. Id.; accord Brenem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980)
(remand appropriate where record was insufficient to affirm, but also was insufficient for district
court to find claimant disabled).
Where the court cannot discern the basis for the Commissioner’s decision, a sentence-four
remand may be appropriate to allow her to explain the basis for her decision. Freeman v. Barnhart,
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274 F.3d 606, 609-610 (1 st Cir. 2001). On remand under sentence four, the ALJ should review the
case on a complete record, including any new material evidence. 	Diorio v. Heckler, 721 F.2d
726, 729 (11 th Cir. 1983) (necessary for ALJ on remand to consider psychiatric report tendered to
Appeals Council). After a sentence four remand, the court enters a final and appealable judgment
immediately, and thus loses jurisdiction. Freeman, 274 F.3d at 610.
In contrast, sentence six of 42 U.S.C. § 405(g) provides:
The court...may at any time order additional evidence to be taken
before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there
is good cause for the failure to incorporate such evidence into the
record in a prior proceeding;
42 U.S.C. § 405(g). To remand under sentence six, the claimant must establish: (1) that there is
new, non-cumulative evidence; (2) that the evidence is material, relevant and probative so that
there is a reasonable possibility that it would change the administrative result; and (3) there is good
cause for failure to submit the evidence at the administrative level. See Jackson v. Chater, 99 F.3d
1086, 1090-1092 (11 th Cir. 1996).
A sentence six remand may be warranted, even in the absence of an error by the
Commissioner, if new, material evidence becomes available to the claimant. Id. With a sentence
six remand, the parties must return to the court after remand to file modified findings of fact. Id.
The court retains jurisdiction pending remand and does not enter a final judgment until after the
completion of remand proceedings. Id.
The law defines disability as the inability to do 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. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505. The impairment must be severe,
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making the claimant unable to do her previous work, or any other substantial gainful activity which
exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
A. 	Opinion Evidence
For applications like this one, filed on or after March 27, 2017, the Administration has
fundamentally changed how adjudicators assess opinion evidence. 	The requirements that
adjudicators assign “controlling weight” to a well-supported treating source’s medical opinion that
is consistent with other evidence, and, if controlling weight is not given, must state the specific
weight that is assigned – are gone. See Shaw v. Saul, No. 19-cv-730-LM, 2020 WL 3072072, *4-
5 (D.N.H. June 10, 2020) citing Nicole C. v. Saul, Case No. cv 19-127JJM, 2020 WL 57727, at
*4 (D.R.I. Jan. 6, 2020) (citing 20 C.F.R. § 404.1520c(a)). Under the newly applicable regulations,
an ALJ does not assign specific evidentiary weight to any medical opinion and does not defer to
the opinion of any medical source (including the claimant’s treating providers). 	20 C.F.R. §§
404.1520c(a), 416.920c(a). Instead, the ALJ evaluates the relative persuasiveness of the medical
evidence in terms of five specified factors. Id.
The five factors the ALJ considers in evaluating the persuasiveness of a medical opinion
are supportability (the relevance of the opinion’s cited objective medical evidence), consistency
(how consistent the opinion is with all of the evidence from medical and non-medical sources),
treatment/examining relationship (including length of treatment relationship, frequency of
examinations, purpose of treatment relationship, and existence and extent of treatment/examining
relationship), specialization (the relevance of the source’s specialized education or training to the
claimant’s condition), and what the Administration refers to as “other factors” (the medical
source’s familiarity with the claimant’s medical record as a whole and/or with the Administration’s
policies or evidentiary requirements). 	Shaw, 2020 WL 3072072 at *4 citing 20 C.F.R. §§
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404.1520c(c)(1)-(5), 416.920c(c)(1)-(5) (emphasis supplied). 	Of the five factors, the “most
important” are supportability and consistency. Id. §§ 404.1520c(a), 404.1520c(b)(2), 416.920c(a),
416.920c(b)(2).
While the ALJ must consider all five of the factors in evaluating the persuasiveness of
medical evidence, when preparing the written decision, the ALJ is, in most cases, only required to
discuss application of the supportability and consistency factors. 	Id. §§ 404.1520c(b)(2),
416.920c(b)(2). 	Only where contrary medical opinions are equally persuasive in terms of both
supportability and consistency is the ALJ required to discuss their relative persuasiveness in terms
of the treatment/examining relationship, specialization, and other factors. Id. §§ 404.1520c(b)(3),
416.920c(b)(3). In addition, where a single medical source offers multiple opinions, the ALJ is
not required to discuss each opinion individually, but instead may address all of the source’s
opinions “together in a single analysis.” Id. §§ 404.1520c(b)(1), 416.920c(b)(1).
Moreover, while the ALJ must consider all of the relevant evidence in the record, Id. §§
404.1520b(a)-(b), 416.920b(a)-(b), the ALJ need not discuss evidence from nonmedical sources,
including, e.g., the claimant, the claimant’s friends and family, educational personnel, and social
welfare agency personnel. Id. §§ 404.1502(e), 404.1520c(d), 416.902(j), 416.920c(d). And while
the regulations require the ALJ to discuss the relative persuasiveness of all medical source
evidence, Id. §§ 404.1520c(b), 416.920c(b), the claimant’s impairments must be established
specifically by evidence from an acceptable medical source, Id. §§ 404.1521, 416.921.
“Acceptable medical sources” are limited to physicians and psychologists, and (within
their areas of specialization or practice) to optometrists, podiatrists, audiologists, advanced
practice registered nurses, physician assistants, and speech pathologists. 	Id. §§ 404.1502(a),
416.902(a). 	Evidence 	from 	other 	medical 	sources, 	such 	as 	licensed 	social 	workers 	or
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chiropractors, is insufficient to establish the existence or severity of a claimant’s impairments. Id.
Finally, the ALJ need not discuss evidence that is “inherently neither valuable nor persuasive,”
including decisions by other governmental agencies or nongovernmental entities, findings made
by state disability examiners at any previous level of adjudication, and statements by medical
sources as to any issue reserved to the Commissioner. Id. §§ 404.1520b(c), 416.920b(c).
B. 	Developing the Record
The ALJ has a duty to fully and fairly develop the record. Heggarty v. Sullivan, 947 F.2d
990, 997 (1st Cir. 1991). The Commissioner also has a duty to notify a claimant of the statutory
right to retained counsel at the social security hearing, and to solicit a knowing and voluntary
waiver of that right if counsel is not retained. See 42 U.S.C. § 406; Evangelista v. Sec’y of HHS,
826 F.2d 136, 142 (1st Cir. 1987). The obligation to fully and fairly develop the record exists if a
claimant has waived the right to retained counsel, and even if the claimant is represented by
counsel. 	Id. 	However, where an unrepresented claimant has not waived the right to retained
counsel, the ALJ’s obligation to develop a full and fair record rises to a special duty. See Heggarty,
947 F.2d at 997, citing Currier v. Sec’y of Health Educ. and Welfare, 612 F.2d 594, 598 (1st Cir.
1980).
C. 	Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant’s
medical sources do not give sufficient medical evidence about an impairment to determine whether
the claimant is disabled. 20 C.F.R. § 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th
Cir. 1986). In fulfilling his duty to conduct a full and fair inquiry, the ALJ is not required to order
a consultative examination unless the record establishes that such an examination is necessary to
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enable the ALJ to render an informed decision. Carrillo Marin v. Sec’y of HHS, 758 F.2d 14, 17
(1st Cir. 1985).
D. 	The Five-step Evaluation
The ALJ must follow five steps in evaluating a claim of disability. 	See 20 C.F.R. §§
404.1520, 416.920. 	First, if a claimant is working at a substantial gainful activity, she is not
disabled. 	20 C.F.R. § 404.1520(b). 	Second, if a claimant does not have any impairment or
combination of impairments which significantly limit her physical or mental ability to do basic
work activities, then she does not have a severe impairment and is not disabled. 	20 C.F.R. §
404.1520(c). Third, if a claimant’s impairments meet or equal an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1, she is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant’s
impairments do not prevent her from doing past relevant work, she is not disabled. 20 C.F.R. §
404.1520(e). Fifth, if a claimant’s impairments (considering her residual functional capacity, age,
education, and past work) prevent her from doing other work that exists in the national economy,
then she is disabled. 	20 C.F.R. § 404.1520(f). 	Significantly, the claimant bears the burden of
proof at steps one through four, but the Commissioner bears the burden at step five. 	Wells v.
Barnhart, 267 F. Supp. 2d 138, 144 (D. Mass. 2003) (five-step process applies to both SSDI and
SSI claims).
In determining whether a claimant’s physical and mental impairments are sufficiently
severe, the ALJ must consider the combined effect of all of the claimant’s impairments and must
consider any medically severe combination of impairments throughout the disability determination
process. 42 U.S.C. § 423(d)(2)(B). Accordingly, the ALJ must make specific and well-articulated
findings as to the effect of a combination of impairments when determining whether an individual
is disabled. Davis v. Shalala, 985 F.2d 528, 534 (11 th Cir. 1993).
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The claimant bears the ultimate burden of proving the existence of a disability as defined
by the Social Security Act. Seavey, 276 F.3d at 5. The claimant must prove disability on or before
the last day of her insured status for the purposes of disability benefits. Deblois v. Sec’y of HHS,
686 F.2d 76 (1st Cir. 1982), 42 U.S.C. §§ 416(i)(3), 423(a), (c). If a claimant becomes disabled
after she has lost insured status, her claim for disability benefits must be denied despite her
disability. Id.
E. 	Other Work
Once the ALJ finds that a claimant cannot return to her prior work, the burden of proof
shifts to the Commissioner to establish that the claimant could perform other work that exists in
the national economy. Seavey, 276 F.3d at 5. In determining whether the Commissioner has met
this burden, the ALJ must develop a full record regarding the vocational opportunities available to
a claimant. Allen v. Sullivan, 880 F.2d 1200, 1201 (11 th Cir. 1989). This burden may sometimes
be met through exclusive reliance on the Medical-Vocational Guidelines (the “grids”). Seavey,
276 F.3d at 5. Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily
from an exertional impairment, without significant non-exertional factors. Id.; see also Heckler v.
Campbell, 461 U.S. 458 (1983) (exclusive reliance on the grids is appropriate in cases involving
only exertional impairments, impairments which place limits on an individual’s ability to meet job
strength requirements).
Exclusive reliance is not appropriate when a claimant is unable to perform a full range of
work at a given residual functional level or when a claimant has a non-exertional impairment that
significantly limits basic work skills. 	Nguyen, 172 F.3d at 36. 	In almost all of such cases, the
Commissioner’s burden can be met only through the use of a vocational expert. Heggarty, 947
F.2d at 996. It is only when the claimant can clearly do unlimited types of work at a given residual
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functional level that it is unnecessary to call a vocational expert to establish whether the claimant
can perform work which exists in the national economy. See Ferguson v. Schweiker, 641 F.2d
243, 248 (5th Cir. 1981). In any event, the ALJ must make a specific finding as to whether the
non-exertional limitations are severe enough to preclude a wide range of employment at the given
work capacity level indicated by the exertional limitations.
1. 	Pain
“Pain can constitute a significant non-exertional impairment.” 	Nguyen, 172 F.3d at 36.
Congress has determined that a claimant will not be considered disabled unless he furnishes
medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of
a medical impairment which could reasonably be expected to produce the pain or symptoms
alleged. 42 U.S.C. § 423(d)(5)(A). The ALJ must consider all of a claimant’s statements about
his symptoms, including pain, and determine the extent to which the symptoms can reasonably be
accepted as consistent with the objective medical evidence. 	SSR 16-3p, 2017 WL 4790249, at
*49462; 20 C.F.R. § 404.1529(c)(3). 	In determining whether the medical signs and laboratory
findings show medical impairments which reasonably could be expected to produce the pain
alleged, the ALJ must apply the First Circuit’s six-part pain analysis and consider the following
factors:
(1) 	The nature, location, onset, duration, frequency, radiation,
and intensity of any pain;
(2) 	Precipitating 	and 	aggravating 	factors 	(e.g., 	movement,
activity, environmental conditions);
(3) 	Type, dosage, effectiveness, and adverse side-effects of any
pain medication;
(4) 	Treatment, other than medication, for relief of pain;
(5) 	Functional restrictions; and
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(6) 	The claimant’s daily activities.
Avery v. Sec’y of HHS, 797 F.2d 19, 29 (1 st Cir. 1986). An individual’s statement as to pain is
not, by itself, conclusive of disability. 	42 U.S.C. § 423(d)(5)(A). 	However, the individual’s
statements about the intensity, persistence, and limited effects of symptoms may not be
disregarded “solely because the objective medical evidence does not substantiate the degree of
impairment-related symptoms.” SSR 16-3p, 2017 WL 4790249, at *49465.
2. 	Credibility
Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ must
articulate specific and adequate reasons for doing so, or the record must be obvious as to the
credibility finding. Rohrberg, 26 F. Supp. 2d at 309. A reviewing court will not disturb a clearly
articulated credibility finding with substantial supporting evidence in the record. See Frustaglia,
829 F.2d at 195. The failure to articulate the reasons for discrediting subjective pain testimony
requires that the testimony be accepted as true. See DaRosa v. Sec’y of Health and Human Servs.,
803 F.2d 24 (1st Cir. 1986).
A lack of a sufficiently explicit credibility finding becomes a ground for remand when
credibility is critical to the outcome of the case. 	See Smallwood v. Schweiker, 681 F.2d 1349,
1352 (11th Cir. 1982). 	If proof of disability is based on subjective evidence and a credibility
determination is, therefore, critical to the decision, “the ALJ must either explicitly discredit such
testimony or the implication must be so clear as to amount to a specific credibility finding.” Foote
v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (quoting Tieniber v. Heckler, 720 F.2d 1251, 1255
(11th Cir. 1983)). 	Guidance in evaluating the claimant’s statements regarding the intensity,
persistence, and limiting effects of subjective symptoms is provided by SSR 16-3p, 2017 WL
4790249, at *49462 (Oct. 25, 2017). It directs the ALJ to consider the entire case record, including
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the objective medical evidence; an individual’s statements about the intensity, persistence, and
limiting effects of symptoms; statements and other information provided by medical sources and
other persons; any other relevant evidence; and whether statements about the intensity, persistence,
and limiting effects of symptoms are consistent with the medical signs and laboratory findings.
SSR 16-3p, 2017 WL 4790249, at *49465.
V. 	APPLICATION AND ANALYSIS
A. 	The ALJ’s Decision
At Step 1, the ALJ found that Plaintiff has not engaged in substantial gainful activity (20
C.F.R. § 416.971 et seq.) since March 17, 2021, the application date. 	(Tr. 16). 	At Step 2, the
following impairments were found to be severe (20 C.F.R. § 416.920(c)): depressive disorder,
anxiety disorder, post-traumatic stress disorder, and gender dysphoria. 	Id. 	Hyperlipidemia and
hypertension were found non-severe. Id.
At Step 3, Plaintiff was found not to have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, App. 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). 	(Tr. 17). 	Listings 12.04,
12.05, and 12.15 were considered and rejected. Id. Plaintiff’s RFC was determined to be for work
at all exertional levels but with the following non-exertional limitations:
The claimant can understand, remember, and carry out simple tasks
and instructions. He can occasionally interact with supervisors and
coworkers but cannot interact with the general public. He can
tolerate simple changes in a routine work setting. He can perform
goal-oriented tasks, not ones requiring a specific production rate
such as assembly line work or work that requires hourly quotas. He
can work primarily with things and objects rather than people.
(Tr. 19).
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At Step 4, it was found that Plaintiff has no past relevant work (20 C.F.R. § 416.965). (Tr.
23). At Step 5, it was determined that considering Plaintiff’s age, education, and work experience,
there are a substantial number of jobs in the national economy that Plaintiff could perform, leading
to a finding of “not disabled.” (Tr. 23-24).
B. 	The ALJ’s Evaluation of Dr. Parsons’ Opinion and His RFC Finding are
Adequately Supported by the Record
Plaintiff was evaluated by Dr. John Parsons, Ph.D. on June 3, 2021. Dr. Parsons issued a
Psychological Test Report on June 12, 2021. (Exh. 2F). The ALJ reviewed Dr. Parsons’ findings
and ultimately found them only “partially persuasive.” (Tr. 22). In particular, the ALJ determined
that his opinion that Plaintiff could not consistently deal with supervisors was not persuasive
because it was inconsistent with Plaintiff’s mostly within normal mental status examinations and
observations that he was cooperative with treatment providers. Id. The ALJ adequately supports
his findings by citation to medical treatment records containing those exam results and repeatedly
reflecting Plaintiff’s cooperation during appointments. Id. (citing Exhs. 3F, 4F, 7F, 9F); (see also
ECF No. 15 at p. 6). 	The ALJ found that Plaintiff’s presentation at his examination with Dr.
Parsons was an “anomaly” and inconsistent with mental status examinations performed by other
treatment providers. (Tr. 20, 22). Finally, the ALJ accurately noted that Dr. Parsons did not have
an opportunity to review the bulk of the medical record available to the state agency psychological
consultants. (Tr. 22).
Dr. Parsons’ report was, however, reviewed by the consulting psychologists, Dr.
Killenberg and Dr. Hughes (Exhs. 2A and 3A). After considering the report in the context of the
entirety of the medical record at that time, the consulting psychologists opined that Plaintiff was
not as limited as opined by Dr. Parsons. 	Id. 	The ALJ found that the consulting opinions were
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“consistent with and supported by the record as a whole and are therefore mostly persuasive.” (Tr.
22). 	The ALJ differed with the psychological consultants solely as to Plaintiff’s need for extra
time for simple tasks and explained why. 	Id. 	Otherwise, the ALJ found the psychological
consultants’ opinions to be persuasive, supported and consistent with the record as a whole, and
thus primarily based on his RFC finding on their opinions.
When boiled down, Plaintiff’s argument is that the ALJ should have given “significantly
greater weight” to the observations and opinions of Dr. Parsons. (ECF No. 12 at p. 10). In response
to this argument, the Commissioner persuasively points out that Plaintiff is simply arguing that the
ALJ should have given more weight to Dr. Parsons’ opinion and that “such a reweighing is not
permissible.” 	(ECF No. 15 at p. 7, citing Thomas P. v. Kijakazi, No. 21-cv-00020-WES, 2022
WL 92651, at *8 (D.R.I. Jan. 10, 2022) (citing Seavey v. Barnhart, 276 F.3d 1, 10 (1 st Cir. 2001)).
Plaintiff elected not to respond to the Commissioner’s persuasive argument in a reply brief, and
the Court presumes he did not do so due to the lack of a good faith rebuttal to the point.
In sum, the Court agrees that Plaintiff’s challenge to the ALJ’s evaluation of the record in
this case inappropriately asks it to reweigh the evidence in a manner more favorable to him. See,
e.g., Seavey, 276 F.3d 10 (the ALJ is responsible for weighing the evidence and resolving
conflicts). 	“The ALJ’s resolution of evidentiary conflicts must be upheld if supported by
substantial evidence, even if contrary results might have been tenable also.” Benetti v. Barnhart,
193 Fed. Appx. 6, 2006 WL 2555972 (1st Cir. Sept. 6, 2006) (per curiam) (citing Rodriguez Pagan
v. Sec’y of HHS, 819 F.2d 1 (1 st Cir. 1987)). In other words, the issue presented is not whether
this Court would have rendered a disability finding reviewing this record de novo but rather
whether the record contains substantial evidence sufficient to support the ALJ’s findings. Since
Plaintiff has shown no error in the ALJ’s evaluation of the medical evidence or in his ultimate
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findings, and those findings are adequately supported by the record, the ALJ’s decision must be
affirmed.
CONCLUSION
For the reasons discussed herein, I recommend that Plaintiff’s Motion to Reverse or
Remand (ECF No. 12) be DENIED and that the Commissioner’s Motion to Affirm the
Commissioner’s Decision (ECF No. 15) be GRANTED. I further recommend that Final Judgment
enter in favor of Defendant.
Any objections to this Report and Recommendation must be specific and must be served
and filed with the Clerk of the Court within fourteen days of service of this Report and
Recommendation. See Fed. R. Civ. P. 72(b); DRI LR Cv 72. Failure to file specific objections in
a timely manner constitutes waiver of the right to review by the District Court and the right to
appeal the District Court’s decision. See Brenner v. Williams-Sonoma, Inc., 867 F.3d 294, 297
n.7 (1st Cir. 2017); Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
/s/ Lincoln D. Almond
LINCOLN D. ALMOND
United States Magistrate Judge
January 17, 2024
Case 1:23-cv-00232-MSM-LDA Document 16 Filed 01/17/24 Page 15 of 15 PageID #:
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