Serrano v. SSA

Serrano v. SSA                         CV-09-332-JL     7/15/11
                   UNITED STATES DISTRICT COURT
                     DISTRICT OF NEW HAMPSHIRE


Angel Luis Serrano, J r .

      v.                              Civil N o . 10-cv-394-JL
                                      Opinion N o . 

Michael J. Astrue, Commissioner,
Social Security Administration


                            MEMORANDUM ORDER

      This is an appeal from the denial of a claimant’s

application for Social Security Disability Benefits. See 

(g).   The claimant, Angel Luis Serrano, Jr., contends

that the administrative law judge (“ALJ”) incorrectly found that

although he suffered from a severe impairment due to a “crush

injury” to his left ankle, Admin. R. 10; 1 see 

 (a),(c), he retained the residual functional capacity2




      1
      The court will reference the administrative record (“Admin.
R.”) to the extent that it recites facts contained i n , or
directly quotes documents from, the record. C f . Lalime v .
Astrue, N o . 08-cv-196-PB, 

, at *1 (D.N.H. Apr. 1 4 ,
2009).
      2
        “Residual Functional Capacity” is defined as “an assessment
of an individual’s ability to do sustained work-related physical
and mental activities in a work setting on a regular and
continuing basis. A ‘regular and continuing basis’ means 8 hours
a day, for 5 days a week, or an equivalent work schedule.” SSR
N o . 96-8p, 

, at *1 (July 2 , 1996).
(“RFC”) to perform light work,3 Admin. R. 1 2 ; see 

(a)(4)(iv), and that given his age, education and work

experience, there were a significant number of job opportunities

available to him.   Admin. R. 1 4 ; see 

(a)(4)(v); p t . 4 0 4 , subpt. P, App. 2 , § 202. Serrano

contends that the ALJ erred in formulating his RFC because:

     (1) the ALJ improperly relied on the RFC assessment of
     a non-treating consulting physician and ignored
     portions of the medical source statement of Serrano’s
     treating physician that were inconsistent with a
     finding that Serrano was not disabled, see C l . B r . 5 ,
     see generally 

, 404.1527(d); SSR
     N o . 96-2p, 

 (July 2 , 1996),

     (2) the ALJ’s credibility determination was unsupported
     by the record, see C l . B r . 7-8, and,

     (3) the ALJ did not properly consider Serrano’s other
     non-severe impairments. See id. at 9.

The Commissioner asserts that the ALJ’s findings are supported by

substantial evidence in the record, and moves for an order

affirming his decision. This court has subject-matter

jurisdiction under 

 (federal question) and 

(g) (Social Security).    After a review of the

administrative record the court grants Serrano’s motion and

denies the Commissioner’s motion.



     3
      The ALJ additionally limited Serrano’s ability to stand and
walk to a total of four hours per day. He also concluded that
Serrano could only push, pull and perform certain postural
activities occasionally. Admin. R. 1 2 .

                                  2
I.   APPLICABLE LEGAL STANDARD

     The court’s review under Section 405(g) is “limited to

determining whether the ALJ deployed the proper legal standards

and found facts upon the proper quantum of evidence.”     Nguyen v .

Chater, 

 1 , 35 (1st Cir. 1999); see Simmons v . Astrue,

 9 1 , 399 (D.N.H. 2010).   If the ALJ’s factual

findings are supported by substantial evidence in the record,

they are conclusive, even if the Court does not agree with the

ALJ’s decision and other evidence supports a contrary conclusion.

See Tsarelka v . Sec’y of Health & Human Servs., 

(1st Cir. 1988).   The ALJ is responsible for determining issues

of credibility, resolving conflicting evidence, and drawing

inferences from the evidence in the record.     See Rodriguez v .

Sec’y of Health & Human Servs., 

 1 8 , 222 (1st Cir.

1981); Pires v . Astrue, 

 5 , 21 (D. Mass. 2008)

(“resolution of conflicts in the evidence or questions of

credibility is outside the court’s purview, and thus where the

record supports more than one outcome, the ALJ’s view prevails”).

The ALJ’s findings are not conclusive, however, if they were

“derived by ignoring evidence, misapplying the law, or judging

matters entrusted to experts.”    Nguyen, 172 F.3d at 3 5 . If the

ALJ made a legal or factual error, the decision may be reversed

and remanded to consider new, material evidence, or to apply the



                                  3
correct legal standard.   Manso-Pizarro v . Sec’y of Health & Human

Servs., 

 5 , 1 6 , 19 (1st Cir. 1996); see 

(g).



II.   BACKGROUND

      Pursuant to this court’s local rules, the parties filed a

Joint Statement of Material Facts (document n o . 9 ) , which is part

of the record reviewed by the court. See LR 9.1(d).      This court

will briefly recount the key facts and otherwise incorporates the

parties’ joint statement by reference.

      Briefly, Serrano severely injured his left ankle on April 5 ,

2006 when a heavy piece of equipment fell on his leg.     Admin. R.

233-36.   Serrano had multiple surgeries to repair the ankle that

month, see id. at 453, 463, 475, 6 2 4 , including skin graft

surgery on his ankle on April 1 1 , 2006.   See id. at 475-76.

Serrano reportedly “did quite well until August of 2006 when he

had a syndesmotic4 screw removed” from his ankle. See id. at

624; see also id. at 267 (physical therapist commented that the

outlook for Serrano’s eventual recovery was positive so long as

he followed up with recovery regimen); 964 (ankle surgeon, D r .




      4
      ”Syndesmotic” refers to connective tissue, “particularly
the ligaments.” Dorland’s Illustrated Medical Dictionary, 1845-
46 (31st ed. 2007).

                                  4
Timothy Bhattacharyya, observed in June 2006 that Serrano was

“doing well” with minimal pain).

       Surgery to remove screws from Serrano’s ankle was performed

on August 8 , 2006 and reportedly proceeded without incident.      See

id. at 5 8 8 , 601. On August, 1 8 , 2006, however, Serrano went to

the emergency room with swelling and “drainage” from the site of

his ankle surgery.      See id. at 304. He was diagnosed with having

a possible infection that appeared to respond to antibiotic

treatment, and thus Serrano was released to light duty work by

Dr. Bhattacharyya beginning on September 2 5 , 2006.    See id. at

988.       Serrano, however, continued to have problems with potential

infections at the wound site, see id. at 3 6 8 , 620-23, 9 6 8 , and he

had further surgery in November 2006 to remove most of the

hardware in his ankle and clean out possible infections. See id.

at 6 2 4 , 8 6 8 , 878-79. Serrano was referred to an infectious

disease specialist, D r . Benjamin Linas, who indicated that the

“removal of hardware and washout” included a surgical “debriding5

down to bone.”      See id. at 940-41.   Although Serrano was

described at discharge as “ambulating without difficulty,” see

id. at 6 2 4 , he spent many weeks receiving intravenous antibiotics


       5
       Debridement” is “the removal of foreign material and
devitalized or contaminated tissue from or adjacent to a
traumatic or infected lesion until surrounding healthy tissue is
exposed.” Dorland’s Illustrated Medical Dictionary, 481 (31st
ed. 2007).

                                     5
at in an inpatient rehabilitation center. See id. at 637-38,

865.       He was finally released from inpatient care on December 1 5 ,

2006.       See id. at 636.

       Although Serrano subsequently returned to work, see id. at

1054, he went to Eliot Hospital in June 2007 for treatment of an

infection at the site of his skin graft which was diagnosed as

“cellulitis6 of [the] leg.”       See id. at 328. Serrano continued

to have difficulty at the wound site, and on June 1 3 , 2007, D r .

Bhattacharyya observed that after Serrano “returned to more

aggressive activities,” he experienced “a lot of serous weeping

from the wound,” and that “clearly the skin graft has not been

durable enough to hand[le] his level of activity.”        See id. at

994.

       Serrano was eventually referred to D r . John Yost, a

rheumatologist.       See id. at 1015. D r . Yost diagnosed Serrano

with “advanced limitation in motion of the left ankle consistent

with post-traumatic osteoarthritis.”       See id. at 1016-17. D r .

Yost recommended that Serrano take Prednisone given that he had




       6
      “Cellulitis” is “an acute, diffuse, spreading, edematous,
suppurative inflammation of the deep subcutaneous tissues, . . .
usually caused by infection of a wound, burn, or other cutaneous
lesion by bacteria.” Dorland’s Illustrated Medical Dictionary,
330 (31st ed. 2007).

                                     6
an “excellent response” to steroid treatments in the past.7       See

id. at 1016.    Serrano reportedly responded well to the steroid

treatment and on August 7 , 2007, D r . Yost recommended a “[w]ork

release for light duty, primarily supervisory activities.        He

will need to continue to limit prolonged walking, standing, [and]

repetitive motion of the left ankle.”    Id. at 1023.

     Serrano’s symptoms returned, however, in September 2007

after he ceased taking steroids. D r . Yost accordingly resumed

Serrano’s steroid therapy.   See id. at 1024. D r . Yost later

noted that by October 1 6 , 2007, Serrano’s issues at the wound

site had stabilized even though Serrano had lingering pain and

stiffness in his ankle. See id. at 1027. Serrano continued to

see D r . Yost until February 2008, when D r . Yost noted that

Serrano had “reached a medical end-point, but will need continued

disease-modifying therapy to prevent relapse of psoriasiform skin

lesions and/or increase in ankle or other joint synovitis.”       See

id. at 1041. A month later, D r . Yost completed a “Medical Source

Statement” indicating, inter alia, that although Serrano retained

the ability to lift up to twenty pounds occasionally and ten


     7
      “Prednisone” is a “synthetic glucocorticoid [steroid] . . .
administered orally . . . as an antiinflammatory and
immunosuppressant.” Dorland’s Illustrated Medical Dictionary,
800, 1531 (31st ed. 2007). Serrano was also prescribed
“Plaquenil,” a medicine used to treat Lupus, as it was suspected
at that time that he might also suffer from that disease. Id. at
894, 1477.

                                  7
pounds frequently, because of his “left ankle osteoarthritis,” he

retained the maximum ability to sit, stand, and walk for only six

hours per day, and needed to take unscheduled breaks throughout

the workday.   See id. at 1168.

      Serrano filed an application for Disability Insurance in

April 2008 claiming he became disabled in May 2007 due to a

“crushed [left] ankle, post traumatic osteoarthritis left ankle

with [psoriasiform] ulceration at the skin graft site.”     See

Admin. R. 112-116, 131-149. Serrano reported that he was no

longer able to work due to “[l]imited . . . ankle motion” and an

inability to stand for a “prolonged period of time.”     Id. at 132.

His application for benefits was denied in August 2008, id. at

4 6 , and Serrano appealed that decision to the ALJ.   Id. at 5 5 ;

see generally 

. After a hearing in March

2010, see id. at 20-42, the ALJ concluded that Serrano was not

disabled and thus not entitled to benefits. Admin. R. 8-15; see

generally 

.

     The ALJ found that Serrano was severely impaired due to a

“status post left ankle fracture.”    Admin. R. 1 0 ; see generally

(a)(4)(ii). He denied benefits, however,

because he concluded that despite his impairments, Serrano

maintained a residual functional capacity “to perform light work

. . . except with the need to limit standing and walking to 4



                                  8
hours total during the day and to limit pushing, pulling and

postural activities to occasional [sic].”    

 at 1 2 ; see

generally, 

(a)(4)(iv), 404.1567(b).

     The ALJ concluded that Serrano was unable to perform his

past work as a “health club maintenance worker, forklift

operator, painter and painter/supervisor.”    

 at 1 4 .

Nevertheless, the ALJ determined that Serrano was not disabled

because he was capable of performing light work with some

limitations, and thus retains the ability to perform jobs that

exist in the entire light unskilled job base. Id. at 14-15.

After the Decision Review Board affirmed the findings of the

ALJ,8 this appeal followed.



III. ANALYSIS

     A five-step process is used to evaluate an application for

social security benefits. 

(a)(4).        The

applicant bears the burden through the first four steps to show




     8
      On review, the Decision Review Board affirmed the ALJ’s
order, Admin. R. 1 ; see generally 

, rendering
it a final decision of the Commissioner appealable to this court.
See 

(b).

                                9
he is disabled.9   Freeman v . Barnhart, 

 (1st

Cir. 2001).   At the fifth step, the Commissioner bears the burden

of establishing that a claimant has the residual functional

capacity to perform other work that may exist in the national

economy.   Id.; see also 

(a)(4)(v); Heggarty

v . Sullivan, 

 9 0 , 995 (1st Cir. 1991).   The ALJ’s

conclusions at steps four and five are informed by his assessment

of a claimant’s RFC, which is a description of the kind of work

that the claimant is able to perform despite his impairments.      

(a)(4), 404.1545.

     Serrano primarily finds fault with the ALJ’s decision not to

adopt the RFC assessment of his treating rheumatologist, D r .

Yost, and instead rely on the assessment of a state agency

consulting physician, D r . Hugh Fairley.   Cl. Br. 5.

     On March 1 0 , 2008, D r . Yost completed a “Medical Source

Statement” assessing Serrano’s work capabilities. Admin. R.

1168-70.   He opined that although Serrano had no limits on his


     9
      Specifically, the claimant must demonstrate that: (1) he
is not engaged in substantial gainful activity; (2) he has a
severe impairment;
   ere  i          (3) the impairment meets or equals a specific
impairment listed in the Social Security regulations; or (4) the
impairment prevents or prevented him from performing past
relevant work. The Social Security Act defines disability as the
“inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than 12 months.” 

(d)(1)(A).

                                  10
ability to sit during a typical workday, he could only stand and

walk less than two hours and had a maximum combined ability to

sit, stand or walk of only six hours per day.    See id. at 1168.

Dr. Yost also stated that Serrano would need to shift at will

from sitting to standing or walking and that he would need to

take unscheduled breaks during the day.10   See id.   Finally, D r .

Yost stated that if Serrano had a job that required “prolonged

standing or walking,” he would miss work more than three days per

month.    See id. at 1170.

     Dr. Fairley later completed a residual functional capacity

form11 in August 2008.   Admin. R. 1176-83. In that form, D r .

Fairley stated that his opinion did not differ significantly from

those offered by Serrano’s treating physicians. He then cited

Dr. Yost’s August 2007 work release, but not D r . Yost’s March

2008 evaluation, as supporting evidence. See id. at 1182.

Although D r . Fairley made a number of findings similar to D r .




     10    Yost also opined that Serrano was limited in his
abilityDr.
         to crouch and squat, and that he would have to limit his
exposure to heat, cold, and humidity. See id. at 1169-70.
     11
      Although D r . Fairley’s form was entitled a “Physical
Residual Functional Capacity Assessment,” it is in reality a
“medical source statement” as only the adjudicator, not a
consulting physician, can make a true RFC determination. See SSR
96-5p, 

, at *4-*5 (July 2 , 1996).

                                 11
Yost’s, there were some significant variations.12       Compare id. at

1168-70 (Dr. Yost) with id. at 1176-83 (Dr. Fairley).        For

example, both physicians opined that Serrano was capable of

lifting twenty pounds occasionally and ten pounds frequently and

that Serrano possessed no manipulative limitations.        Notably,

however, D r . Fairley opined that Serrano could sit for a total of

six hours per day and stand or walk for a total of four hours per

day, and thus function for a complete eight hour day.        Id. at

1177.       D r . Fairley did not state that Serrano needed to be able

to shift at will or take unscheduled breaks. Compare id. at 1177

with id. at 1168. Although there were many similarities in the

physician’s analyses, the differences, and the ALJ’s treatment of

them, form the basis of Serrano’s claim of error.

       In a step four analysis, the ALJ, having already determined

that the claimant suffers a severe impairment, makes a

determination of the claimant’s current functional capacity, or

RFC.    If the RFC finding is supported by substantial evidence in


       12
      Some of these variations may be attributed to the different
forms completed by each doctor. D r . Yost completed a “Medical
Source Statement” evaluating Serrano’s ability to complete work
related activities, Admin. R. 1168-70, while D r . Fairley
completed a “Physical Residual Functional Capacity Assessment”
form. Id. at 1176-83. Although both, in theory, seek to
describe the same analysis (Serrano’s ability to work), they vary
in content, with the medical source statement requiring a more
detailed explanation of a claimant’s functional capacity.
Notably, neither physician offered much elaboration in the areas
of the report allowing for free form comment.

                                     12
the record, it is conclusive. Nguyen, 172 F.3d at 3 5 .     Findings

are not conclusive, however, “when derived by ignoring evidence,

misapplying the law, or judging matters entrusted to experts.”

Id.

      Determination of a claimant’s RFC is an administrative

decision that is the responsibility of the Commissioner.      See 

(e)(2), SSR 96-5p, 

, at * 2 . An

ALJ is prohibited, however, from disregarding relevant medical

source opinions. See SSR 96-5p, 

, at * 5 . Where an

ALJ’s RFC assessment is at odds with a medical source opinion, he

must explain his reasons for disregarding that opinion. See 

(d)(2); SSR 96-8p, 

, at * 7 ;

Marshall v . Astrue, N o . 08-cv-147-JD, 

, at *4

(D.N.H. Dec. 2 2 , 2008) (reversing ALJ decision because treating

source opinion was “simply overlooked”).

      In evaluating the nature and severity of an impairment, “[a]

treating physician’s opinion is generally afforded controlling

weight if it is well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence in the case record.”     Lopes v .

Barnhart, 

 (D. Mass. 2005) (quotations

and brackets omitted); see also SSR 96-2p, 

, at * 1 -

* 2 ; 

(d)(2); c f . Monroe v . Barnhart, 

Supp. 2d 203, 211 (D. Mass. 2007)(“Although opinions from

treating and examining physicians may be considered helpful, and

in many cases controlling, the hearing officer is only required

to make a decision that is supported by substantial evidence.”);

(d)(2).   Greater weight is given to a

treating source “since these sources are likely to be the medical

professionals most able to provide a detailed, longitudinal

picture of [the claimant’s] medical impairment(s).”      

(d)(2).

     The ALJ’s decision must be reversed because his treatment of

Dr. Yost’s medical source opinion was fundamentally flawed.

Specifically, the ALJ only partially addressed D r . Yost’s medical

source statement, ignoring a few key conclusions regarding

Serrano’s functional capabilities contradicting both the ALJ and

Dr. Fairley’s RFC determination.     C f . Nguyen v . Callahan, 

 (D. Mass 1998) (an ALJ may not adopt one view of

the evidence without addressing conflicts in the evidence).

“[T]he First Circuit has held that an ALJ’s written decision need

not directly address every piece of evidence in the

administrative record” if it is cumulative of evidence already

discussed by the ALJ or fails to support the claimant’s position.

Lord v . Apfel, 

 , 13 (D.N.H. 2000).    “At the same

time, the First Circuit and district courts within the circuit



                                14
have [also] held that an ALJ may not simply ignore relevant

evidence, especially when that evidence supports a claimant’s

cause.”    

 (citing cases).

     The ALJ did mention that D r . Yost had examined Serrano and

indeed made reference to D r . Yost’s medical source statement.

Admin. R. 1 1 , 1 3 . But the ALJ barely analyzed key findings

standing in direct contradiction to his determination that

Serrano is not disabled.   Specifically, the ALJ failed to

adequately discuss how D r . Yost’s conclusion that: (1) Serrano

could only sit/stand/or walk a total of six hours per day, and

(2) needed unscheduled breaks throughout the day, affected his

ability to work on a sustained and continuing basis. 

 at 1 1 ,

13 (ALJ opinion), 1168 (medical source statement).13

     These omissions are significant because the ALJ’s decision

was based, in part, on testimony of a vocational expert. See 

 (decision), 35-38 (testimony).     That expert, when given a

hypothetical RFC matching that ultimately adopted by the ALJ,

opined that there existed a number of jobs in the national

economy.   See 

.     The vocational expert was also given

a hypothetical RFC by the ALJ purportedly matching the RFC of D r .


     13
        The ALJ mentioned Serrano’s inability to sit/stand/walk for
a full work day in his Step Two discussion of Serrano’s severe
impairments. The ALJ did not, however, address this information
in the context of his Step Four and Step Five analysis. See 

at 1 1 , 1 3 .

                                   15
Yost.     See 

 at 3 7 . Given that scenario, the vocational expert

stated that there would still be jobs available.     That

hypothetical, however, was incomplete, as the ALJ never mentioned

that D r . Yost’s RFC included the ability to take unscheduled

breaks and that D r . Yost limited Serrano’s maximum combined

sit/stand/walk capability to six hours total in an eight hour

workday.     See 

 (transcript), 1168 (Dr. Yost medical

source statement).      Serrano’s counsel later asked the vocational

expert about whether, given a hypothetical similar to that posed

by the ALJ, but including a maximum ability to sit/stand/walk/ of

six hours, Serrano could find a job. See 

.      The

vocational expert stated there would be no jobs available because

“[t]he six-hour combination of sitting and standing and walking

would be less than a full-time work capacity so there would be no

jobs.”     See 

. 14


     14
        Further, D r . Fairley grounded his RFC determination in part
on D r . Yost’s August 2007 notes authorizing Serrano to return to
work. Admin. R. 1023 (Dr. Yost), 1182 (Dr. Fairley). Those
notes arguably only weakly support D r . Fairley’s RFC assessment,
because although D r . Yost released Serrano, it was in a very
limited way, namely, “light duty, primarily supervisory
activities, he will need to continue to limit prolonged walking,
standing, repetitive motion of the ankle.” See id. at 1023.
Although not the basis for the court’s decision to reverse the
ALJ, such weak support does undermine the ALJ’s decision to give
great weight to D r . Fairley’s RFC assessment. Berrios Lopez v .
Sec’y of Health & Human Servs., 

 2 7 , 431 (1st Cir. 1991)
(reports of consulting physician that “contain little more than
brief conclusory statements or the mere checking of boxes” are
entitled to relatively little weight).

                                   16
     A court must be able to determine whether the ALJ considered

contrary evidence and chose to discredit i t , or whether it was

“simply ignored.”   Lord, 

 (quotations

omitted).   “For a reviewing court to be satisfied that an ALJ’s

decision was supported by substantial evidence, that decision

must take into account whatever in the record fairly detracts

from its weight.”   

 (quotations omitted).   Although the ALJ

discussed potions of D r . Yost’s assessment supporting

determination that Serrano was severely impaired, he ignored key

conclusions regarding Serrano’s functionality.15   This was




     15
        Further, the ALJ noted that he “afford[ed] the opinion of
State Agency reviewing physician D r . Fairley great weight in this
case.” Admin. R. 1 3 . He only inferentially gave less weight to
Dr. Yost’s medical source statement, stating “Dr. Yost did
release the claimant to work and has not treated him for more
than a year.“ 

 An ALJ is required to “always give good
reasons in the notice of determination or decision for the weight
given to a treating source’s medical opinion(s) . . . .” SSR 96-
2 p , 

, at * 5 , see generally 

(d)(2). The ALJ’s reasoning “must be sufficiently
specific to make clear to any subsequent reviewers the weight the
[ALJ] gave to the treating source’s medical opinion . . . .” SSR
96-2p, 

, at * 5 . The court concludes that the ALJ’s
recitation was not sufficient to satisfy the requirement that an
ALJ always give “good reasons” for refusing to adopt contrary
treating physician opinions. Indeed, one cannot even discern
from the face of the order that D r . Yost limited Serrano’s work
capabilities to six hours per day, or that he take unscheduled
breaks, and why the ALJ chose to disregard those conclusions.
See SSR 96-2p, 

, at * 5 .

                                 17
error.16   C f . Brunel v . Barnhardt, N o . Civ.00-402-B, 

, at *8-*9 (D.N.H. Jan. 7 , 2002) (ALJ cannot parse medical

evidence, accepting favorable evidence and ignoring unfavorable

evidence “without offering a principled reason”).       The court

accordingly reverses the ALJ’s decision. Serrano’s remaining

claims of error will not be addressed at this time, as it is

unclear the extent to which they will arise on remand.17




     16
      The Commissioner argues that it is irrelevant that D r . Yost
opined that Serrano could only sit/stand/walk for six hours per
day because that finding directly contradicts D r . Yost’s opinion
that Serrano had an unlimited ability to sit. From the face of
the ALJ’s order, however, the court cannot discern the basis of
the ALJ’s decision to ignore the functional significance of D r .
Yost’s opinion. As such, remand is proper. See Lord, 

 4 .
     17
      Serrano attempts to argue that an ALJ is per se prohibited
from relying on a state agency consulting physician to formulate
an RFC. There is precedent, however, allowing an ALJ to rely
both exclusively on the assessments of non-testifying, non-examining physicians, see Berrios Lopez, 951 F.2d at 431-32, and
on the assessment of a non-treating physician in lieu of a
treating physician. See Tremblay v . Sec’y of Health & Human
Servs., 

 1 , 13 (1st Cir. 1982); Reeves v . Barnhart, 263
F.
F Supp. 2d 1 5 4 , 161-62 (D. Mass. 2003). Conflicts between
treating and non-treating, non-examining doctors are for the ALJ
to resolve. Tremblay, 

 2 . The decision to resolve
that conflict against the claimant should be affirmed if “that
conclusion has substantial support in the record . . . .“ Id.;
see Berrios Lopez, 951 F.2d at 431; c f . DiVirgilio v . Apfel, 

 6 , 77 (D. Mass. 1998).

                                   18
IV.   CONCLUSION

      Pursuant to sentence four of 

(g), Serrano’s

motion to reverse and remand the Commissioner’s decision18 is

granted.       The Commissioner’s motion to affirm the decision19 is

denied.       The Clerk of Court is directed to enter judgment in

accordance with this order and close the case.



      SO ORDERED.



                                  Jo/eph N . Laplante
                                  U s ited States District Judge

Dated:       July 1 5 , 2011

cc:   Davis S.V. Shirley, Esq.
      T. David Plourde, Esq.




      18
           Document n o . 7.
      19
           Document n o . 1 0 .

                                        19