Barker v. Social Security

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Court of Appeals for the First Circuit·Decided October 9, 1996·No. 96-1622·Published

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 96-1622

MEGAN BARKER,

Plaintiff, Appellant,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge] ___________________

____________________

Before

Torruella, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________

____________________

David A. Chase and Macdonald & Chase on brief for appellant. ______________ _________________
Jay McCloskey, United States Attorney, James M. Moore, Assistant _____________ ______________
United States Attorney, and Thomas D. Ramsey, Assistant Regional __________________
Counsel, Region I, Social Security Administration, on brief for
appellee.

____________________

OCTOBER 09, 1996 OCTOBER 09, 1996
____________________

Per Curiam. Claimant-appellant Megan Barker challenges ___________

the denial of disability benefits under the Social Security

Disability Insurance and Supplemental Security Income

programs. We affirm.

In 1982, claimant tripped on a concrete stair and fell

on her left knee while running with her company in the United

States Army. She suffered a contusion or laceration, and she

was removed from regular duty for a short period of time.

Barker finished her term in the military and received a

regular discharge in 1984. Thereafter, she worked at various

jobs (mainly cashiering) until August 1992.

In 1993, claimant applied for disability benefits due to

patellofemoral pain syndrome. She complained of swelling and

pain in her left knee, especially if she walks or stands a

lot. She also complained that her knee occasionally "locks

up" or "gives out." She stated that she has had pain in her

knee since her injury in 1982, but that the pain has gotten

worse. She described the pain as constant and claimed that

it is unrelieved by medication (Ibuprofen or Motrin).

The Administrative Law Judge (ALJ) found that claimant

has patellofemoral pain syndrome, but that it does not

significantly limit her ability to perform basic work-related

functions. Having concluded that Barker does not have a

severe impairment, the ALJ terminated the review process at

Step 2, or the severity stage, of the five-step sequential

-2-

inquiry. See Bowen v. Yuckert, 482 U.S. 137 (1987); McDonald ___ _____ _______ ________

v. Secretary of Health & Human Servs., 795 F.2d 1118 (1st ____________________________________

Cir. 1986). The decision of the ALJ became the final

decision of the Secretary when the Appeals Council denied

review. Claimant appealed to the district court, which

referred the matter to a magistrate judge for report and

recommendation. The magistrate recommended affirmance, and

the district judge adopted the magistrate's recommendation.

This appeal followed.

The medical records submitted by the claimant are from

the Veterans Administration (VA). These records reveal that

claimant's left knee was examined on two occasions by a VA

physician for the purpose of determining whether she is

eligible for a VA disability rating. In addition, the VA

Disability Council sent claimant to see Dr. Pepe, an

orthopedic consultant. Dr. Pepe examined claimant on one

occasion, December 9, 1992. Although he diagnosed

patellofemoral pain syndrome, Dr. Pepe's objective findings

are almost entirely negative. On March 11, 1993, the VA

assigned claimant a 30% disability rating. At that time,

objective findings were said to show a small amount of

effusion in the left knee, as well as some warmth and diffuse

tenderness in the knee. On October 19, 1993, claimant

arrived at Dr. Pepe's office without an appointment and spoke

to him briefly in the hallway. Following this conversation,

-3-

Dr. Pepe wrote a short note in which he stated: "[The

claimant] says she has pain in her legs that precludes

sitting or standing at work. Would recommend no sitting or

standing in order to help the pain."

As an initial matter, we are persuaded that the ALJ

could properly reject Dr. Pepe's October 19, 1993 assessment

essentially for the reasons stated by the magistrate in his

recommended decision.1 We add that there is conflicting 1

medical evidence in the record. None of the medical

consultants found any limitation in claimant's ability to sit

or stand.2 Moreover, Dr. Pepe's note is conclusory and 2

devoid of objective medical findings. See 20 C.F.R. ___

____________________

1The magistrate stated: 1

Given that Dr. Pepe had last examined the
plaintiff nearly ten months before
writing the October [19], 1993 note, that
he had no advance notice of her visit
(and thus no opportunity to review her

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USCA1 Opinion




[NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 96-1622



                                    MEGAN BARKER,



                                Plaintiff, Appellant,



                                          v.



                           COMMISSIONER OF SOCIAL SECURITY,



                                 Defendant, Appellee.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                           Selya and Stahl, Circuit Judges.
                                            ______________



                                 ____________________



            David A. Chase and Macdonald & Chase on brief for appellant.
            ______________     _________________

            Jay McCloskey, United  States Attorney, James M. Moore,  Assistant
            _____________                           ______________

        United  States  Attorney, and  Thomas  D.  Ramsey, Assistant  Regional
                                       __________________

        Counsel,  Region  I,  Social  Security Administration,  on  brief  for

        appellee.


____________________



                                   OCTOBER 09, 1996
                                   OCTOBER 09, 1996

                                 ____________________



Per  Curiam.  Claimant-appellant Megan Barker challenges
                 ___________



            the denial  of disability benefits under  the Social Security



            Disability   Insurance   and  Supplemental   Security  Income



            programs.  We affirm.



                 In 1982, claimant  tripped on a concrete  stair and fell



            on her left knee while running with her company in the United



            States Army.  She suffered a contusion or laceration, and she



            was removed from  regular duty  for a short  period of  time.



            Barker  finished her  term  in the  military  and received  a



            regular discharge in 1984.  Thereafter, she worked at various



            jobs (mainly cashiering) until August 1992.



                 In 1993, claimant applied for disability benefits due to



            patellofemoral pain syndrome.  She complained of swelling and



            pain in  her left knee, especially  if she walks or  stands a



            lot.   She also complained that  her knee occasionally "locks



            up" or "gives out."   She stated that she has had pain in her



            knee since her injury  in 1982, but that the pain  has gotten



            worse.  She described  the pain as constant and  claimed that



            it is unrelieved by medication (Ibuprofen or Motrin).  



                 The Administrative  Law Judge (ALJ) found  that claimant



            has  patellofemoral  pain  syndrome,  but that  it  does  not



            significantly limit her ability to perform basic work-related



            functions.   Having  concluded that  Barker does  not have  a



            severe impairment,  the ALJ terminated the  review process at



            Step 2, or  the severity stage,  of the five-step  sequential


-2-



inquiry.  See Bowen v. Yuckert, 482 U.S. 137 (1987); McDonald
                      ___ _____    _______                       ________



            v. Secretary of  Health &  Human Servs., 795  F.2d 1118  (1st
               ____________________________________



            Cir.  1986).    The decision  of  the  ALJ  became the  final



            decision  of the  Secretary when  the Appeals  Council denied



            review.    Claimant appealed  to  the  district court,  which



            referred  the matter  to  a magistrate  judge for  report and



            recommendation.  The  magistrate recommended affirmance,  and



            the  district judge adopted  the magistrate's recommendation.



            This appeal followed.



                 The medical  records submitted by the  claimant are from



            the Veterans Administration (VA).   These records reveal that



            claimant's  left knee was examined  on two occasions  by a VA



            physician  for  the purpose  of  determining  whether she  is



            eligible for a  VA disability  rating.  In  addition, the  VA



            Disability  Council  sent  claimant   to  see  Dr.  Pepe,  an



            orthopedic  consultant.   Dr. Pepe  examined claimant  on one



            occasion,   December  9,   1992.     Although   he  diagnosed



            patellofemoral pain  syndrome, Dr. Pepe's  objective findings



            are  almost entirely  negative.   On March  11, 1993,  the VA



            assigned claimant  a 30%  disability rating.   At that  time,



            objective  findings  were said  to  show  a small  amount  of



            effusion in the left knee, as well as some warmth and diffuse



            tenderness  in  the knee.    On  October 19,  1993,  claimant



            arrived at Dr. Pepe's office without an appointment and spoke



            to him briefly  in the hallway.  Following this conversation,


-3-



Dr.  Pepe wrote  a  short note  in  which he  stated:   "[The



            claimant]  says  she has  pain  in  her  legs that  precludes



            sitting or standing at  work.  Would recommend no  sitting or



            standing in order to help the pain."



                 As  an initial  matter, we  are persuaded  that the  ALJ



            could properly reject Dr.  Pepe's October 19, 1993 assessment



            essentially  for the reasons stated  by the magistrate in his



            recommended  decision.1   We  add that  there is  conflicting
                                  1



            medical  evidence  in  the  record.    None  of  the  medical



            consultants found any limitation in claimant's ability to sit



            or stand.2    Moreover, Dr.  Pepe's  note is  conclusory  and
                     2



            devoid  of objective  medical  findings.   See  20 C.F.R.    
                                                       ___



                                
            ____________________



               1The magistrate stated:
               1



                      Given that Dr. Pepe had last examined the

                      plaintiff   nearly   ten  months   before

                      writing the October [19], 1993 note, that

                      he  had  no advance  notice of  her visit

                      (and  thus no  opportunity to  review her

                      file), and that he  wrote the note at the

                      plaintiff's request and without examining

                      her  anew,  the Administrative  Law Judge

                      was entitled to disregard it . . . 



            Report and Recommended Decision at 5-6.



               2Dr. Johnson,  a  State agency  consultant,  reviewed  the
               2

            medical evidence and concluded that claimant does not have an

            impairment which  limits her  ability to perform  basic work-

            related  functions.    Dr.  Goffin,  a  second  State  agency

            consultant,   completed   a   Residual  Functional   Capacity

            Assessment  which  indicates   no  limitation  in  claimant's

            ability to sit  or stand.   Dr. Babcock,  a medical  advisor,

            testified at the administrative hearing that he had "a lot of

            trouble  placing much  credibility in  [Dr. Pepe's]  note" in

            light  of the  fact that  Dr. Pepe  did not  examine claimant

            before writing it.



                                         -4-



404.1527(d)  (explaining how  the  Secretary  weighs  medical



            opinions),  416.927(d)  (same);  Matney  ex  rel.  Matney  v.
                                             ________________________



            Sullivan,  981 F.2d 1016, 1019 (9th Cir. 1992) ("The ALJ need
            ________



            not  accept  an  opinion  of  a  physician--even  a  treating



            physician--if it  is conclusory and brief  and is unsupported



            by clinical findings.").



                 We  also  think  the   ALJ  could  properly  reject  the



            credibility of claimant's statements concerning  the limiting



            effects of her pain and other symptoms.  See Irlando Ortiz v.
                                                     ___ _____________



            Secretary  of Health & Human  Servs., 955 F.2d  765, 769 (1st
            ____________________________________



            Cir.  1991)   (per  curiam)   (explaining  that  it   is  the



            responsibility  of  the  Secretary  to  determine  issues  of



            credibility).   The VA treatment record is  quite sparse, and



            most  of   the  objective  medical  findings   are  negative.



            Claimant's allegations that her pain significantly limits her



            ability  to sit or stand is inconsistent with the opinions of



            the medical consultants.  In addition, the ALJ properly could



            find  that claimant's  allegations are inconsistent  with her



            reported activities.3  See  20 C.F.R.    404.1529 (explaining
                                3  ___



            how the Secretary evaluates pain), 416.929 (same). 


____________________



               3Claimant  is  able to  do  housework (including  dusting,
               3

            vacuuming, laundry, and washing dishes) and, according to one

            of her reports, she is able to do grocery shopping.  She also

            drives  her  car, visits  friends, and  has taken  a computer

            training course.   Each of these  activities involves sitting

            or standing.   


-5-



For  the foregoing  reasons, we  are persuaded  that the



            Secretary's  severity  finding  is  supported  by substantial



            evidence.  Accordingly, the judgment below is affirmed.
                                                          ________


-6-

Barker v. Social Security, (1st Cir. 1996).

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Bowen v. Yuckert

482 U.S. 137 (Supreme Court, 1987)

Claire McDonald v. Secretary of Health and Human Services

795 F.2d 1118 (First Circuit, 1986)

Victor J. Irlanda Ortiz v. Secretary of Health and Human Services

955 F.2d 765 (First Circuit, 1991)

Matney ex rel. Matney v. Sullivan

981 F.2d 1016 (Ninth Circuit, 1992)

Opinion

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