Bruce Menezes v . SSA CV-99-168-B 05/04/00
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
BRUCE W . MENEZES
v. Civil N o . 99-168-B Opinion N o . 2000 DNH 107 KENNETH S. APFEL, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Bruce W . Menezes applied for Title II Social Security
Disability Income benefits on September 26, 1996, alleging
disability since November 1 , 1991. After the Social Security
Administration (“SSA”) denied Menezes’s application, he requested
a hearing before an Administrative Law Judge (“ALJ”). ALJ Robert
S . Klingebiel held a hearing on Menezes’s claim on March 2 5 ,
1997. In a decision dated May 2 4 , 1997, the ALJ found that
Menezes was “not disabled” at any time prior to the expiration of
his insured status on December 3 1 , 1991. On February 2 6 , 1999,
the Appeals Council denied Menezes’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner of the SSA.
Menezes brings this action pursuant to § 405(g) of the
Social Security Act (the “Act”), see 42 U.S.C. § 405(g) (1994),
seeking review of the denial of his claim for benefits. For the
reasons set forth below, I conclude that the ALJ’s decision that
Menezes was not entitled to benefits was supported by substantial
evidence. Therefore, I affirm the Commissioner’s decision and
deny Menezes’s motion to reverse.
I . FACTS1
Bruce W . Menezes was 37 years old when he applied for
benefits. He has a twelfth-grade education and speaks English.
Between 1977 and 1986, Menezes worked as a circuit board cutter.
At various times between 1986 and 1991, he worked in roofing,
general construction, and general property maintenance. See R.
1 Unless otherwise noted, the following facts are taken from the Joint Statement of Material Facts (Doc. #9) submitted by the parties.
-2- at 7 3 , 9 6 , 9 8 , 538-39, 581-82.2
On November 1 , 1991, Menezes was injured at work when he was
struck by a crane and knocked from the back of a truck. See id.
at 587. In addition to being knocked unconscious, Menezes
suffered injuries to his back, left ankle, and left thumb. He
went directly to S t . Joseph’s Hospital in Lowell, Massachusetts.
X-rays of his skull and left ankle were negative, whereas x-rays
of his left thumb showed a comminuted3 fracture with angulation
of the fragments at the fracture site in the mid-shaft of the
metacarpal bone.
The next day, Menezes was examined by Dr. Lawrence Johnson.
During the examination, Menezes walked with a normal gait and
stated that his left ankle pain was improving. Menezes’s ankle
had a full range of motion, was “minimally tender [and] minimally
swollen,” and was stable to ligament examination. Regarding
2 “R.” refers to the official record submitted to the Court by the SSA in connection with this case. 3 Comminuted means “[b]roken into several pieces.” Stedman’s Medical Dictionary 333 (25th ed. 1990).
-3- Menezes’s fractured thumb, Dr. Johnson recommended open reduction
and internal fixation. On November 3 , 1991, Dr. Johnson
performed a surgical procedure on the thumb. Menezes’s thumb was
in a cast for eight weeks, at the end of which D r . Johnson noted
that it was “minimally tender” and somewhat stiff, but was doing
well overall. Menezes reported that after the operation and
recovery period, his left thumb had “healed up pretty good.”
On December 3 , 1991, Menezes returned to the emergency room
at S t . Joseph’s Hospital complaining of pain in his lower back
and right hip. He reported that he had experienced these pains
since the November 1 accident and that they were getting worse.
X-rays taken of Menezes’s lumbar spine were unremarkable. On
December 1 0 , 1991, Menezes underwent magnetic resonance imaging
(“MRI”) of his lumbar spine. The MRI showed disc degeneration
with central disc bulging at the L3-4 and L4-5 levels and large
right-sided disc herniation at L5-S1 that indented and displaced
the dural sac with significant foraminal4 encroachment. On
4 A foramen (pl. foramina) is “an aperture or perforation through a bone or a membraneous structure.” Stedman’s Medical
-4- December 1 7 , 1991, D r . Johnson examined Menezes, who complained
of pain radiating down his right leg to his toes. The
examination revealed that Menezes had a moderately antalgic gait5
with a list to the left and a positive Lasegue’s sign6 on the
right. The result of a straight leg raising test (“SLR”) 7 was
positive on the right at 60 degrees. As a result of this
examination, Dr. Johnson and Menezes decided that the herniated
Dictionary 605 (25th ed. 1990). 5 An antalgic gait is “a characteristic [gait] resulting from pain on weightbearing in which the stance phase of [gait] is shortened on the affected side.” Stedman’s Medical Dictionary 627 (25th ed. 1990). 6 Lasegue’s sign is positive and indicates lumbar root or sciatic nerve irritation when the patient, in a supine position with his hip flexed, experiences pain or muscle spasm in the posterior thigh upon dorsiflexion of the ankle. See Stedman’s Medical Dictionary 1420 (25th ed. 1990). 7 “The simple straight-leg raising test [SLR] is performed with the patient lying supine, with the backs of the knees flat on the examining table. The knee is held straight, and the foot of one leg is raised while the hip is slowly flexed. Flexion of the leg through a range of 60 to 90 degrees is considered to be normal. The test is positive when pain is reproduced down the posterior thigh below the knee between the angle of 30 to 70 degrees.” Attorneys’ Textbook of Medicine ¶ 15.34(1) (3d ed. 1999).
-5- disc should be excised.
On December 2 3 , 1991, Menezes reported to Dr. Johnson that
he had pain in his right buttock and thigh radiating down to his
calf. By December 3 1 , 1991, Menezes had a more significant limp,
his SLR was more prominent at 60 degrees, and he exhibited pain
with turning on the examining table. D r . Johnson concluded that
a discectomy8 would be required if Menezes’s symptoms persisted.
On January 7 , 1992, Menenzes’s electromyogram9 and nerve
conduction studies indicated a right S1 radiculopathy.10 On
January 1 5 , 1992, D r . Bruce R. Cook determined that, based on
Menezes’s history, physical examination, electrodiagnostic
8 A discectomy is the “excision, in part or whole, of an intervertebral disk.” Stedman’s Medical Dictionary 442-43 (25th ed. 1990). 9 An electromyogram is “[a] graphic representation of the electric currents associated with muscular action.” Stedman’s Medical Dictionary 497 (25th ed. 1990). 10 Radiculopathy is a “[d]isease of the spinal nerve roots.” Stedman’s Medical Dictionary 1308 (25th ed. 1990).
-6- studies, and imaging studies, Menezes needed a laminectomy11 and
disc excision.
A note in Menezes’s chart, dated January 2 1 , 1992, showed
that he canceled the proposed surgery with D r . Johnson after
receiving a second opinion that surgery was not needed. In
response, Dr. Johnson noted that he had “found in recent weeks
that [Menezes’s] symptoms waxed and waned and, certainly, if he
is not feeling very symptomatic, it is appropriate to hold off on
surgery.” R. at 184. Notwithstanding the “second opinion,” on
January 2 3 , 1992, Dr. Cook performed a lumbar hemilaminectomy12
and disc excision upon Menezes. During the operation a sizeable
free fragment and several small pieces of fibrocartilaginous13
11 A laminectomy is an “excision of a vertebral lamina [flattened portion of a vertebra].” Stedman’s Medical Dictionary 839 (25th ed. 1990). 12 A hemilaminectomy is a type of laminectomy where access to the disc is achieved “by cutting away one or both sides of the of the bony structures at the level of the lesion.” Attorneys’ Textbook of Medicine ¶ 15.74 (3d ed. 1999). 13 Fibrocartilage refers to “a variety of cartilage that contains visible collagen fibers.” Stedman’s Medical Dictionary 581 (25th ed. 1990).
-7- tissue were removed from under the nerve root. See id. at 213-
14. After the surgery, Menezes’s leg pain improved. He was
discharged from the hospital on January 2 6 , 1992.
When Menezes was examined by Dr. Cook on February 3 , 1992,
his station and gait were “mildly antalgic” and he was still
having “a little bit of proximal pain in the hip and soreness in
the back.” Dr. Cook noted, however, that Menezes showed a
“marked improvement” in his leg symptoms. By March 1 6 , 1992, Dr.
Cook reported that Menezes was free of all back and leg pain and
was “doing very nicely.” Except for some left ankle difficulties
(discussed below), Menezes was enjoying “full activities.” Dr.
Cook noted that Menezes’s right ankle jerk had returned, that he
had good strength and mobility, and that his SLR was negative
beyond 90 degrees.
On February 1 5 , 1992, Menezes’s left ankle was examined by
Dr. David C . Morley, an orthopedic surgeon. Menezes informed D r .
Morley that he had been experiencing problems with his ankle such
as pain, giving way, limping, and loss of activities ever since
-8- the accident on November 1 , 1991. See id. at 260. The x-rays
showed marked anterior instability and 28 degrees lateral opening
to varus14 stress films. Dr. Cook recommended reconstructive
surgery and performed such a procedure on Menezes’s left ankle on
April 6, 1992. After the surgery, Menezes was placed in a short
leg cast and he began physical therapy. He was discharged on
April 1 2 , 1992. At the time of discharge, Menezes was relegated
to walking with a crutch, was able to achieve regular elevation
of the left leg, and was prescribed Percocet for pain. See id.
at 313.
On the day he was discharged, Menezes fell down some stairs
and injured his back. On April 1 5 , 1992, he was again examined
by Dr. Cook. The x-rays of Menezes’s lumbar spine were
essentially negative with minimal spondylolysis.15 Dr. Cook
14 Varus means “[b]ent or twisted inward toward the midline of the limb or body.” Stedman’s Medical Dictionary 1689 (25th ed. 1990). 15 Spondylolysis is the “[d]egeneration of the articulating part of a vertebra.” Stedman’s Medical Dictionary 1456 (25th ed. 1990).
-9- diagnosed Menezes as suffering from a soft tissue contusion and
sacroiliitis,16 and prescribed anti-inflammatory medication and
physical therapy.
On March 8 , 1993, Dr. Morley reported that there had been
full restoration of motion in Menezes’s ankles,17 but that
subtalar motion18 was about half of normal. Dr. Morley opined
that considering the length of the scars left from surgery and
the decreased range of motion, Menezes had an eight percent
permanent partial physical disability with respect to each ankle.
He suggested that Menezes avoid occupations that require
significant standing or walking and that he be retrained in a
16 Sacroiliitis is the “[i]nflammation of the sacroiliac joint.” Stedman’s Medical Dictionary 1377 (25th ed. 1990). 17 There is evidence in the record regarding an injury to Menezes’s right ankle which he sustained in early April 1992. See R. at 434. However, because this injury occurred after the expiration of Menezes’s insured status, it is irrelevant to his disability determination. 18 Subtalar motion involves extension of the ankle and lowering the talus bone in the foot which articulates with the tibia and fibia in forming the ankle. See Dorland’s Illustrated Medical Dictionary 1598, 1657, 1658 (28th ed. 1994).
-10- more sedentary occupation.
In January 1995, Dr. Cook reported that Menezes’s January
1992 laminectomy had relieved his leg pain, but that he still had
“occasional back pain that is associated with lifting or
activity.” Dr. Cook also reported that Menezes did not notice
any weakness or numbness in his leg and was not taking any
medication for his back. Menezes could bend to 90 degrees, his
reflexes were symmetric, his strength was full throughout, his
SLR status was negative, and he had no sensory loss. Dr. Cook
opined that Menezes would continue to be limited in his ability
to do any lifting or repetitive activity.
In October 1995, Menezes reinjured his back while changing a
flat tire on his car. As a result of this injury, Menezes
required another laminectomy, which was performed by Dr. Cook on
December 1 9 , 1995.
On December 2 1 , 1995, Menezes was transferred to Northeast
Rehabilitation Hospital in Salem, New Hampshire for comprehensive
rehabilitation following his second lumbar disc surgery. See id.
-11- at 532-34. When he arrived at the hospital, Menezes complained
of severe pain and was given narcotic analgesics. Within a few
hours, he improved, was medically stable, and was allowed to go
home with therapy continued on a outpatient basis.
On June 1 7 , 1996, Dr. Richard N . Warnock submitted a medical
opinion regarding Menezes’s condition to the Department of
Industrial Accidents for the Commonwealth of Massachusetts. Dr.
Warnock reported that Menezes experienced right side lower back
pain without radiation, numbness, or paresthesia. Menezes
informed Dr. Warnock that his left ankle no longer gave way but
that he occasionally had calf cramps. Menezes walked with a
normal gait and had a normal stance. Dr. Warnock reported that
Menezes enjoyed unrestricted lateral bending and could forward
flex to about 60 degrees and extend to 5 degrees. Menezes’s SLR
was negative on the left and mildly positive on the right,
particularly beyond 70 degrees. There were no obvious motor or
sensory deficits in his lower extremities and reflexes were
normal except for absent right ankle reflex. There was no
-12- detectable instability in either ankle. Although Dr. Warnock
reported that there was “no disability in regard[] [to] Menezes’s
left thumb or his ankle at the present time,” the doctor opined
that Menezes was “100% disabled from [November 1 , 1991] through
[June 1 7 , 1996].” Dr. Warnock concluded that Menezes was
restricted to job activities that did not require lifting more
than fifty pounds or twenty-five pounds repetitively; that did
not require climbing, bending, or stooping; and that allowed
Menezes the freedom to sit or stand as needed to relieve back
pain.
On October 2 8 , 1996, Dr. Munro Proctor, medical consultant
for the state Disability Determination Services (“DDS”), reviewed
Menezes’s medical records and prepared an assessment of his
physical residual functional capacity (“RFC”). D r . Proctor
concluded that Menezes could lift and carry ten pounds frequently
and twenty pounds occasionally and could stand/walk or sit for
six hours in an eight-hour day. Dr. Proctor further concluded
that Menezes could only occasionally climb, balance, stoop,
-13- kneel, crouch, or crawl. After reviewing the same medical
records, Dr. Burton Nault, another medical consultant for DDS,
concurred with Dr. Proctor’s RFC assessment.
On December 2 , 1996, Menezes stated in a reconsideration of
disability report that he could not climb, kneel, stoop, walk
over rough terrain, or stand or sit for extended periods due to
pain in his ankles and lower back. He also reported that he
could not lift more than fifty pounds, or more than twenty pounds
repeatedly. See id. at 8 3 . This reconsideration report was
completed after Menezes underwent a second operation for his back
and reconstructive surgery on his right ankle. These medical
procedures were performed to treat injuries that Menezes
sustained after the expiration of his insured status under the
Act.
On March 2 0 , 1997, Dr. Cook rendered the opinion that
Menezes was unable to do any heavy or repetitive work, other than
tasks appropriate for a sedentary occupation. Dr. Cook indicated
that Menezes had “persistent back pain following spinal surgery
-14- in 1995 [and that] [m]ultiple efforts at physical therapy and
treatment of medications have not given him relief.”
I I . STANDARD OF REVIEW
After a final determination by the Commissioner denying a
claimant’s application for benefits, and upon timely request by
the claimant, I am authorized t o : (1) review the pleadings
submitted by the parties and the transcript of the administrative
record; and (2) enter a judgment affirming, modifying, or
reversing the ALJ’s decision. See 42 U.S.C. § 405(g). My review
is limited in scope, however, as the ALJ’s factual findings are
conclusive if they are supported by substantial evidence. See
Irlanda Ortiz v . Secretary of Health and Human Servs., 955 F.2d
765, 769 (1st Cir. 1991); 42 U.S.C. § 405(g). The ALJ is
responsible for settling credibility issues, drawing inferences
from the record evidence, and resolving conflicts in the
evidence. See Irlanda Ortiz, 955 F.2d at 769. Therefore, I must
“uphold the [ALJ’s] findings . . . if a reasonable mind,
-15- reviewing the evidence in the record as a whole, could accept it
as adequate to support [the ALJ’s] conclusion.” Id. (quoting
Rodriquez v . Secretary of Health and Human Servs., 647 F.2d 218,
222 (1st Cir. 1981)) (internal quotation marks omitted).
If the ALJ has misapplied the law or has failed to provide a
fair hearing, however, deference to the ALJ’s decision is not
appropriate and remand for further development of the record may
be necessary. See Slessinger v . Secretary of Health and Human
Servs., 835 F.2d 937, 939 (1st Cir. 1987) (per curiam) (“The
[ALJ’s] conclusions of law are reviewable by this court.”);
Carroll v . Secretary of Health and Human Servs., 705 F.2d 638,
644 (2d Cir. 1983). I apply these standards in reviewing the
issues that Menezes raises on appeal.
III. DISCUSSION
The Social Security Act defines “disability” for the
purposes of Title II as the “inability to engage in any
substantial gainful activity by reason of any medically
-16- 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.” 42 U.S.C. §
423(d)(1)(A) (1994). When evaluating whether a claimant is
disabled due to a physical or mental impairment, an ALJ’s
analysis is governed by a five-step sequential evaluation
process.19 See 20 C.F.R. § 404.1520 (1999). At step four of the
process, the ALJ must determine whether the claimant’s impairment
prevents him from performing his past work. See 20 C.F.R. §
404.1520(e). To make this determination, the ALJ must assess
both the claimant’s residual functional capacity (“RFC”), that
i s , what the claimant can do despite his impairments, and the
demands of the claimant’s prior employment. See id.; Santiago v .
19 The ALJ is required to consider the following five issues when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; and (5) whether the impairment prevents or prevented the claimant from doing any other work. See 20 C.F.R. § 404.1520 (1999).
-17- Secretary of Health and Human Servs., 944 F.2d 1 , 5 (1st Cir.
1991) (per curiam). The claimant bears the burden of showing
that he does not have the RFC to perform his past relevant work.
See Santiago, 944 F.2d at 5 . At step five, the burden shifts to
the Commissioner to show “that there are jobs in the national
economy that [the] claimant can perform.” Heggarty v . Sullivan,
947 F.2d 9 9 0 , 995 (1st Cir. 1991) (per curiam); see also Keating
v . Secretary of Health and Human Servs., 848 F.2d 271, 276 (1st
Cir. 1988) (per curiam). The Commissioner must show that the
claimant’s limitations do not prevent him from engaging in
substantial gainful work, but need not show that the claimant
could actually find a job. See Keating, 848 F.2d at 276 (“The
standard is not employability, but capacity to do the job . . .
.”).
In the present case, the ALJ concluded at step five of the
sequential evaluation process that Menezes was “not disabled.”
See R. at 1 8 , 2 0 . The ALJ found that although Menezes had a
severe impairment that precluded his return to his former
-18- employment, he retained the RFC to perform light work.20 See id.
at 1 8 , 1 9 . In addition, the ALJ found that Menezes was a high
school graduate, that his previous work experience had been semi-
skilled, and that he did not have transferable skills. See id.
at 1 8 , 1 9 , 2 0 . Accordingly, the ALJ applied Rule 202.21 of the
Medical-Vocational Guidelines (“the Grid”), which directed a
conclusion of not disabled. See id. at 1 8 , 2 0 ; 20 C.F.R. P t .
404, Subpt. P, App. 2 at 202.21 (1999).
Menezes argues that the ALJ’s denial of his application for
benefits at step five was tainted by a variety of legal errors.
First, Menezes alleges that the ALJ should have combined and
considered his non-severe impairments with his severe impairment
20 Light work may involve “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds,” “a good deal of walking or standing,” and/or “sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b) (1999). “If someone can do light work, . . . [he ordinarily] can also do sedentary work.” Id. Sedentary work involves “lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools”; occasional “walking and standing”; and frequent “sitting.” 20 C.F.R. § 404.1567(a) (1999).
-19- throughout the entire sequential evaluation process. Second,
Menezes argues that the ALJ improperly calculated his residual
functional capacity and accordingly applied the incorrect rule
from the Medical-Vocational Guidelines (the “Grid”). Third,
Menezes argues that the ALJ ignored certain medical evidence that
was relevant to his residual functional capacity. Fourth,
Menezes contends that the ALJ failed to give the appropriate
weight to medical evidence submitted by examining physicians.
Finally, Menezes maintains that the ALJ did not properly evaluate
his subjective complaints of pain. I address each of these
arguments in turn.
A. ALJ’s Consideration of Combined Impairments
Menezes argues that the ALJ should have combined and
considered his non-severe impairments, e.g., the injuries to his
thumb and left ankle, along with his severe back impairment
throughout the five-step sequential disability analysis. Menezes
contends that the ALJ failed to do so and, as a result, that the
ALJ erred in concluding that Menezes was not disabled under the
-20- Act. For the following reasons, I disagree.
“[A claimant’s] impairment(s) must be severe and meet the
duration requirement before [the SSA] can find [a claimant] to be
disabled.” 20 C.F.R. § 404.1520(a) (1999). An impairment or
combination of impairments is “severe” if it significantly limits
a claimant’s ability to perform basic work activities. See 20
C.F.R. § 1520(c) (1999). To meet the duration requirement an
impairment that is not expected to result in death “must have
lasted or must be expected to last for a continuous period of at
least 12 months.” 20 C.F.R. § 404.1509 (1999); see also 42
U.S.C. § 1382c(a)(3)(A) (1994 & Supp. 1996). Regarding the
determination of the duration requirement, some courts have
specifically held that “[t]he first two steps [of the sequential
process] involve threshold determinations as to whether a
claimant is not presently working and has an impairment which is
of the required duration and which significantly limits his
ability to do work.” Maggard v . Apfel, 167 F.3d 376, 378 (7th
Cir. 1999); see also Pate v . Heckler, 777 F.2d 1023, 1026 (5th
-21- Cir. 1985) (“The twelve month duration requirement is a threshold
requirement for the claimant to prove a disability under the
Social Security Act.”). “If one or more of [a claimant’s]
impairments improves or is expected to improve within 12 months,
so that the combined effect of [the claimant’s] remaining
impairments is no longer severe, [the SSA] will find that [the
claimant] do[es] not meet the 12-month duration test.” 20 C.F.R.
§ 404.1522(b) (1999). Also, a claimant may not aggregate
unrelated severe impairments that individually last for a shorter
period to meet the duration requirement. See 20 C.F.R. §
404.1522(a) (1999) (“[SSA] cannot find you disabled, even though
the two impairments in combination last for 12 months.”).
Moreover, if an impairment can be reasonably remedied by
treatment, it cannot serve as a basis for a finding of
disability. See Bianchi v . Secretary of Health and Human Servs.,
764 F.2d 4 4 , 45 (1st Cir. 1985) (per curiam). Thus, a claimant
whose impairment or impairments are no longer severe, such that
he can return to substantial gainful activity within one year of
-22- his injury, is not entitled to disability benefits. See Titus v .
Sullivan, 4 F.3d 590, 594-95 (8th Cir. 1993).
At step two of the sequential evaluation process, the ALJ
has an obligation to determine whether a claimant suffers from a
“severe” impairment. See 20 C.F.R. § 404.1520(c). “[A] claim
may be denied at step 2 for lack of a severe impairment only
where ‘medical evidence establishes only a slight abnormality or
combination of slight abnormalities which would have no more than
a minimal effect on an individual’s ability to work even if the
individual’s age, education, or work experience were specifically
considered . . . .’” Barrientos v . Secretary of Health and Human
Servs., 820 F.2d 1 , 2 (1st Cir. 1987) (per curiam) (quoting
Social Security Ruling (“SSR”) 85-28, 1985 WL 56856, at *3
(1985)). The step two severity requirement is intended “to do no
more than screen out groundless claims.” McDonald v . Secretary
of Health and Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986).
If the ALJ finds a medically severe combination of impairments at
step two, he must consider the combined impact of such
-23- impairments throughout the disability determination process. See
42 U.S.C. § 423(d)(2)(B) (1994).
Menezes argues that the ALJ should have combined his short-
term injuries with his severe back impairment when determining
his RFC. However, the Act, the SSA’s regulations, and relevant
case law clearly state that unless an impairment lasts for a
continuous period of twelve months, it cannot serve as a basis
for a disability determination. See 42 U.S.C. § 1382c(a)(3)(A);
20 C.F.R. § 404.1509; Maggard, 167 F.3d at 378. If an impairment
cannot serve as a basis for a disability determination, it is
reasonable for an ALJ to screen out that impairment before
performing the RFC analysis. The RFC denotes what a claimant can
do despite his limitations. See 20 C.F.R. §§ 404.1545(a) (1999).
Injuries that are remediated within a twelve-month period do not
limit a claimant’s ability to perform work activities and thus
should not be factored into the RFC analysis. Therefore, the ALJ
properly excluded from the RFC analysis Menezes’s short-term
-24- thumb and ankle injuries.21
B. ALJ’s Evaluation at Steps Four and Five
Menezes next argues that the ALJ ignored the raw medical
evidence describing the symptoms upon which the particular
treatment of thumb, ankle and back injuries was based. Menezes
contends that by ignoring this evidence the ALJ erroneously
determined Menezes’s RFC at step four and, as a result, applied
the incorrect rule from the Medical-Vocational Guidelines (the
“Grid”) at step five. I first review the ALJ’s RFC determination
at step four.
21 In his brief on appeal, Menezes argues that his back injury met a listing level impairment and therefore that the ALJ erred by not finding that Menezes was disabled at step three. Menezes contends that the medical evidence demonstrates that he exhibited the listed symptoms of (1) pain, muscle spasms, and a significant limitation of motion in the spine; and (2) appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. See Pl.’s Mot. (Doc. #6) at 7 ; 20 C.F.R. P t . 4 0 4 , Subpt. P, App. 1 at 1.05C. The SSA regulations require, however, that such symptoms persist “for at least 3 months despite prescribed therapy and be expected to last 12 months.” 20 C.F.R. P t . 4 0 4 , Subpt. P, App. 1 at 1.05C. Since there is no evidence that Menezes symptoms persisted for the required duration, I find that the ALJ properly concluded that Menezes did not meet the listing level impairment at step three.
-25- 1. RFC Determination
An RFC determination represents what a claimant is able to
do despite his limitations. See 20 C.F.R. § 404.1545(a). The
ALJ is responsible for determining a claimant’s RFC. See 20
C.F.R. § 404.1546 (1999). Once the ALJ determines a claimant’s
RFC, he then uses that RFC to determine whether the claimant has
the capacity to perform past relevant work. See Manso-Pizarro v .
Secretary of Health and Human Servs., 76 F.3d 1 5 , 17 (1st Cir.
1996) (per curiam).
In determining a claimant’s RFC, an ALJ is required to
perform a “function-by-function” assessment of the claimant’s
ability to engage in work-related activities. See SSR 96-8p,
1996 WL 374184, at *3 (1996); Ferraris v . Heckler, 728 F.2d 582,
586-87 (2d Cir. 1984). Moreover, the ALJ must specify the
evidentiary basis for his RFC determination. See White v .
Secretary of Health and Human Servs., 910 F.2d 6 4 , 65 (2d Cir.
1990) (noting that failure to specify a basis for RFC conclusion
is sufficient reason to vacate a decision of the Commissioner);
-26- SSR 96-8p, 1996 WL 374184, at * 7 . When making his RFC
determination, an ALJ must “consider objective medical facts,
diagnoses and medical opinions based on such facts, and
subjective evidence of pain or disability testified to by
claimant or others.” Ferraris, 728 F.2d at 585; see also 20
C.F.R. § 404.1545(a) (RFC must be based on all relevant
evidence).
Because an ALJ is a lay person, however, he “is not
qualified to assess residual functional capacity based on a bare
medical record.” Gordils v . Secretary of Health and Human
Servs., 921 F.2d 327, 329 (1st Cir. 1990) (per curiam); see also
Manso-Pizarro, 76 F.3d at 1 7 ; Berrios Lopez v . Secretary of
Health and Human Servs., 951 F.2d 427, 430 (1st Cir. 1991) (per
curiam). This means that if the medical evidence only describes
the claimant’s impairment(s) but does not relate those
impairment(s) to an exertional level, such as light work, the ALJ
may not make the connection himself. See Vital v . Shalala, Civ.
A . N o . 92-12695-MLW, 1994 WL 548051, at *7 (D. Mass. Aug. 1 1 ,
-27- 1994).
In the present case, the ALJ determined at step four of the
sequential evaluation process that Menezes retained the RFC to
perform a full range of light work. See R. at 1 8 . In support of
his decision, the ALJ provided the following function-by-function
assessment:
After reviewing all of the medical evidence and testimony in this case, I find that the claimant did have a herniated disc at L5-S1, resulting from an accident on November 1 , 1991, that did place restrictions on his ability to perform basic work functions and that did persist for at least a year after the alleged onset of disability, November 1 , 1991. The claimant could not have been expected . . . to lift and carry anything in excess of 20 pounds occasionally and 10 pounds frequently.
Id. at 1 7 . Although a more specific function-by-function
analysis is desirable, the ALJ’s RFC assessment was in line with
the assessment offered by the state’s doctors. The state
physicians concluded that Menezes could occasionally lift 20
pounds and frequently lift 10 pounds. See id. at 7 6 . They also
found that Menezes could stand and/or walk, with normal breaks,
for about 6 hours in an 8-hour workday. See id. The state
-28- physicians’ RFC assessment also stated that Menezes: (1) had
limited ability to push or pull in the upper extremity (due to
the thumb injury), see id.; (2) had some manipulative limitations
(due to the thumb injury), see id. at 7 8 ; (3) had no visual,
communicative, or environmental limitations, see id. at 7 8 , 7 9 ;
and (4) could occasionally climb, balance, stoop, kneel, crouch,
and crawl. See id. at 7 7 . The state physicians’ overall
conclusion was that Menezes was capable of performing light work.
See id. at 8 2 . The record contains no other analysis of
Menezes’s RFC for the period prior to the expiration of his
disability insurance. Moreover, the medical evidence that
Menezes contends that the ALJ ignored is not linked to an
specific exertional level. Accordingly, the ALJ would not have
been entitled to rely on that evidence as a basis for the RFC
determination. See Poland v . Apfel, N o . C-99-128-B, 2000 WL
36950, at *12 (D.N.H. Dec. 2 2 , 1999); Vital, 1994 WL 548051, at
*7.
2. Application of the Grid Rule.
-29- After determining Menezes’s RFC, the ALJ proceeded to step
five and applied Rule 202.21 of the Grid, 20 C.F.R. P t . 4 0 4 ,
Subpt. P, App. 2 , to reach a finding of not disabled. See R. at
1 8 , 2 0 . Menezes argues that had the ALJ properly determined his
RFC, the ALJ would have found that Menezes was capable of only
performing sedentary work and would have accordingly applied a
different part of the Grid (e.g., Rules 201.00(h) and 202.28) to
find him disabled. In other words, Menezes is challenging the
particular Grid rule applied by the ALJ, not the application of
the Grid itself.22
Because I have determined that the ALJ properly determined
Menezes’s RFC, I find that the application of the particular Grid
rule was also appropriate.
C. The ALJ’s Determinations Must Be Based on Substantial Relevant Evidence
Menezes claims that the ALJ improperly determined his RFC
because he failed to consider certain medical evidence for the
22 Because Menezes does not challenge the propriety of the ALJ’s decision to use the Grid in this case, I do not address that issue.
-30- period between November 1 , 1991 and December 3 1 , 1991. According
to Menezes, this evidence demonstrates that he had his left hand
in a cast, that he had a large right-sided herniated disc with
radiculopathy, that he had a decreased sense of touch in his
lateral right calf, that he had a list, that he had an antalgic
gait, that sitting and walking made the pain worse, that he was
unable to perform household chores, and that his treating
physician observed that he experienced pain while turning on the
examining table. See Pl’s. Mot. (Doc. #6) at 5 . Menezes also
claims that “[t]he ALJ failed to consider the ankle surgeries,
casting, crutches and the effect that they had on [Menezes’s]
ability to work.” Id. at 9. For the reasons set forth below, I
conclude that the ALJ considered this evidence to the extent that
it was relevant and properly determined Menezes’s RFC and non-
disabled status.
To determine whether a claimant is disabled, an ALJ must
consider and evaluate all evidence, whether objective or
subjective, that is relevant to the claim. See Cotter v . Harris,
-31- 642 F.2d 700, 704 (3d Cir. 1981); Parker v . Harris, 626 F.2d 225,
231 (2d Cir. 1980). The SSA’s regulations define “evidence” as
“anything [the claimant] or anyone else submits to [SSA] or that
[SSA] obtain[s] that relates to [the] claim.” 20 C.F.R. §
404.1512(b) (1999).
A “[c]laimant is not entitled to disability benefits unless
he can demonstrate that his disability existed prior to the
expiration of his insured status.” Cruz Rivera v . Secretary of
Health and Human Servs., 818 F.2d 9 6 , 97 (1st Cir. 1986) (per
curiam); see also Deblois v . Secretary of Health and Human
Servs., 686 F.2d 7 6 , 79 (1st Cir. 1982). “It is not sufficient
for a claimant to establish that [his] impairment had its roots
before the date that [his] insured status expired. Rather, the
claimant must show that [his] impairment(s) reached a disabling
level of severity by that date.” Moret Rivera v . Secretary of
Health and Human Servs., 19 F.3d 1427, Civ. N o . 93-1700, 1994 WL
107870, at *5 (1st Cir. March 2 3 , 1994) (per curiam) (table, text
available on Westlaw) (citing Deblois, 686 F.2d at 7 9 ; Tremblay
-32- v . Secretary of Health and Human Servs., 676 F.2d 1 1 , 13 (1st
Cir. 1982) (per curiam)). However, evidence from the post-
insured period is not wholly irrelevant when it sheds light “on
the question whether claimant’s impairment(s) reached disabling
severity before claimant’s insured status expired.” Id.
In his brief on appeal, Menezes fails to differentiate
between injuries he sustained during the time he was insured
under the Act and injuries he sustained after his disability
insurance expired. Relevant evidence is evidence that shows that
Menezes’s impairment(s) reached a disabling level of severity by
the date his disability insurance expired. See id.; Deblois, 686
F.2d at 7 9 ; Tremblay, 676 F.2d at 1 3 . Because Menezes’s
insurance expired before he sustained the right ankle injury, the
ALJ properly excluded evidence of that injury from his analysis.
Regarding Menezes’s back injury, the ALJ found that the
November 1 , 1991 accident resulted in a herniated disc that
required surgery. See R. at 1 6 . The ALJ’s opinion reflects
consideration of the medical evidence from Menezes’s treating
-33- physicians, Drs. Johnson and Cook, as well as the opinions of the
state physicians. See id. at 1 6 , 1 7 . The ALJ found that
Menezes’s back injury was a severe impairment that restricted his
ability to perform basic work functions for at least one year.
See id. at 1 7 . The ALJ further found that Menezes could not have
been expected to lift and carry objects weighing in excess of 20
pounds occasionally and 10 pounds frequently. See id. All of
these conclusions are based on substantial evidence in the
record.
Menezes also contends that the ALJ’s determination that
Menezes’s ankle and thumb injuries were “non-severe” is not based
on substantial evidence. However, as noted previously, the ALJ
excluded those injuries from the analysis because they did not
meet the duration requirement under the Act. Therefore, I
address whether the ALJ’s decision to exclude those injuries for
not meeting the duration requirement is supported by substantial
evidence.
The ALJ determined that Menezes’s thumb injury did not meet
-34- the duration requirement and could not be included in his
disability analysis. See R. at 1 5 . This finding is supported by
evidence in the record showing that Menezes’s thumb was healing
well when removed from a cast on the last day of his insured
status. See id. at 183, 595.
Regarding Menezes’s left ankle, the ALJ found that “[a]fter
casting and physical therapy for a brief period of time
[Menezes’s] surgeon, Dr. David Morley, was able to report in July
1992 that the left ankle was doing well and showing excellent
stability.” Id. at 1 5 . Based on this evidence, the ALJ
concluded that Menezes’s left ankle injury did not limit his
ability to perform basic work activity “for a period of time that
met the durational requirements of the Act.” Id.
Menezes contends that the ALJ’s analysis of his left ankle
injury was flawed because the ALJ ignored evidence of the injury
provided by Dr. Morley. See Pl.’s Mot. (Doc. #6) at 8-9. To the
contrary, it is evident that the ALJ did not ignore this
evidence. Although the evidence from Dr. Morley relates to a
-35- period after Menezes’s disability insurance expired, it
demonstrates that Menezes’s left ankle was doing well and showing
excellent stability. Such post-insured status evidence supports
the ALJ’s finding that Menezes’s left ankle impairment did not
reach disabling severity before his insured status expired. See
Moret Rivera, 1994 WL 107870, at * 5 ; Smith, 849 F.2d at 1225.
In short, Menezes has been unable to demonstrate that the
ALJ failed to consider any evidence relevant to making a
disability determination. To the contrary, it is apparent that
the ALJ considered all relevant evidence in forming the
conclusion that Menezes suffered from a severe back impairment.
In addition, the evidence regarding Menezes’s ankle and thumb
injuries substantiates the ALJ’s determination that those
injuries did not meet the duration requirement under the Act. I
find no error in this regard.
D. Weight Given to Treating/Examining Physicians
Menezes argues that the ALJ erred by ignoring or not
according the appropriate weight to evidence provided by
-36- Menezes’s treating physician, Dr. David Morley, and examining
physician, D r . Richard Warnock. Menezes also contends that the
ALJ accorded inappropriate weight to the state physicians’
report. I disagree with both contentions.
A treating source is “[a claimant’s] own physician or
psychologist who has provided [claimant] with medical treatment
or evaluation and who has or has had an ongoing treatment
relationship with [the claimant].” 20 C.F.R. § 404.1502 (1999).
Although the Social Security regulations ordinarily require an
ALJ to give controlling weight to a treating physician’s opinion
regarding a claimant’s impairment, this mandate is not absolute.
Rather, the ALJ need only do so where objective medical evidence
supports the treating physician’s opinion and where that opinion
is not inconsistent with other evidence in the record. See 20
C.F.R. § 404.1527(d)(2) (1999); SSR 96-2p, 1996 WL 374188, at *1
(1996); Keating v . Secretary of Health and Human Servs., 848 F.2d
271, 276 (1st Cir. 1988). Additionally, “[a] medical source
opinion that an individual is ‘disabled’ or ‘unable to work’ . .
-37- . is an opinion that is reserved to the Commissioner . . . .
[T]he adjudicator will not give any special significance to [such
an] opinion because of its source.” SSR 96-8p, 1996 WL 374184,
at *8 n.8; see also Arroyo v . Secretary of Health and Human
Servs., 932 F.2d 8 2 , 89 (1st Cir. 1991) (per curiam) (“[An ALJ
is] not required to accept the conclusions of claimant’s treating
physicians on the ultimate issue of disability.”). In short, the
ultimate issue of disability is a legal conclusion, not a medical
determination.
An ALJ is entitled to give evidentiary weight to medical
reports prepared by consulting and non-examining physicians. See
Gray v . Heckler, 760 F.2d 369, 373 (1st Cir. 1985); Rodriguez v .
Secretary of Health and Human Servs., 647 F.2d 218, 223-24 (1st
Cir. 1981). Such reports, when based on objective medical
evidence, can constitute substantial evidence in support of an
ALJ’s decision. See Berrios Lopez v . Secretary of Health and
Human Servs., 951 F.2d 427, 431-32 (1st Cir. 1991) (per curiam).
Menezes first argues that the ALJ ignored evidence from Dr.
-38- Morley regarding Menezes’s left ankle. However, since the ALJ
determined that Menezes’s left ankle injury did not meet the
duration requirement, I need not address this argument.
Menezes also claims that the ALJ failed to give appropriate
weight to Dr. Richard N . Warnock’s opinion as an examining
physician. D r . Warnock opined that Menezes was one hundred
percent disabled from November 1 , 1991 to June 1 7 , 1996. See R.
at 550. An ALJ, however, is not required to accept the
conclusions of a treating/examining physician on the ultimate
issue of disability. See Arroyo, 932 F.2d at 8 9 .
Moreover, the ALJ was entitled to reject Dr. Warnock’s
opinion because it was inconsistent with the opinions offered by
Menezes’s own treating physicians. See 20 C.F.R. §
404.1527(c)(2) (1999). For example, Dr. Bruce Cook, the
orthopedic surgeon who surgically removed Menezes’s L5-S1
herniated disc, reported on March 1 6 , 1992 that Menezes was “free
of all back and leg pain,” “has been doing very nicely,” and was
“enjoying full activities.” R. at 188. The ALJ’s decision not
-39- to credit Dr. Warnock’s opinion is proper in light of the
conflict between that opinion and the evidence from Menezes’s
treating physician, D r . Cook. Further, Dr. Warnock’s opinion was
based on a single examination of Menezes on June 1 7 , 1996, after
Menezes had injured his right ankle and reinjured his back. See
id. at 549. Dr. Warnock’s examination did not differentiate
between injuries sustained prior to the expiration of Menezes’s
insured status and injuries sustained after expiration. For all
of these reasons, I find that the ALJ was not obligated to credit
Dr. Warnock’s opinion.
I also find that the ALJ gave the appropriate weight to the
state physicians’ RFC assessment. Assigning significant weight
to the non-examining physicians’ report is particularly
appropriate in the present case because it appears that, at the
time the state assessed Menezes’s functional limitations, the
state’s doctors had before them all of Menezes’s medical records
then available. Moreover, the record contains no other RFC
assessment prepared by an acceptable medical source.
-40- Menezes argues that one of the state physicians, Dr. Nault,
based his RFC assessment on Menezes’s injury to his left first
metacarpal (thumb). I find that Menezes overstates the
significance of D r . Nault’s references to the thumb injury. Dr.
Nault found that Menezes suffered from certain upper extremity
and manipulative limitations. See R. at 7 6 , 7 8 . Based on the
entire RFC assessment, it is reasonable to conclude that Dr.
Nault’s reference to Menezes’s thumb only relates to his findings
regarding those particular exertional limitations. In other
words, the only reason D r . Nault found limitations in the upper
extremity was because of Menezes’s temporary thumb injury. It is
clear that the state physicians based their RFC determination on
all of the medical evidence on file and not solely on Menezes’s
thumb injury. See id. at 8 2 . In addition, the state physicians
concluded that none of the injuries that Menezes sustained prior
to December 3 1 , 1991 were expected to cause a disability for a
continuous period of twelve months. See id. at 8 1 , 8 2 .
Therefore, I find no error in this regard.
-41- E. Menezes’s Subjective Complaints of Pain
Finally, Menezes argues that the ALJ failed to give adequate
consideration to his subjective complaints of pain. For the
following reasons, I disagree.
The SSA regulations require that a claimant’s symptoms,
including complaints of pain, be considered when determining
whether a claimant is disabled.23 See 20 C.F.R. § 404.1529(a)
(1999). An ALJ must follow a two-step process to evaluate a
claimant’s subjective complaints of pain. First, the ALJ must
determine whether the claimant suffers from a medically
determinable impairment that can reasonably be expected to
produce the pain alleged. See 20 C.F.R. § 404.1529(b) (1999); Da
Rosa v . Secretary of Health and Human Servs., 803 F.2d 2 4 , 25
(1st Cir. 1986) (per curiam). Then, if such an impairment
exists, the ALJ must evaluate “the intensity and persistence of
23 Pain can constitute either an independent and separate basis for disability or a nonexertional factor to be considered in conjunction with exertional limitations. See Gagnon v . Secretary of Health and Human Servs., 666 F.2d 662, 666 n.8 (1st Cir. 1981).
-42- [the claimant’s] symptoms so that [the ALJ] can determine how
[the claimant’s] symptoms limit [his or her] capacity for work.”
20 C.F.R. § 404.1529(c)(1) (1999). At this stage, the ALJ must
consider “all of the available evidence, including [the
claimant’s] medical history, the medical signs and laboratory
findings, and statements from [the claimant], [the claimant’s]
treating or examining physician or psychologist, or other persons
about how [the claimant’s] symptoms affect [the claimant].” Id.
The Commissioner recognizes that symptoms such as pain may
suggest a more severe impairment “than can be shown by objective
medical evidence alone.” 20 C.F.R. § 404.1529(c)(3).
Accordingly, the ALJ is directed to evaluate the claimant’s
complaints of pain in light of the following factors: (1) the
claimant’s daily activities; (2) the location, duration,
frequency, and intensity of the claimant’s pain; (3)
precipitating and aggravating factors; (4) the type, dosage,
effectiveness, and side effects of any medication that the
claimant takes or has taken to alleviate his pain; (5) treatment,
-43- other than medication, the claimant receives or has received for
relief of his pain; (6) any measures the claimant uses or has
used to relieve pain; and (7) other factors concerning the
claimant’s limitations and restrictions due to pain. See id.;
Avery v . Secretary of Health and Human Servs., 797 F.2d 1 9 , 29
(1st Cir. 1986). These factors are sometimes called the “Avery
factors.” In addition to considering these factors, the ALJ is
entitled to observe the claimant, evaluate his demeanor, and
consider how the claimant’s testimony fits with the rest of the
evidence. See Frustaglia v . Secretary of Health and Human
Servs., 829 F.2d 192, 195 (1st Cir. 1987) (per curiam).
In assessing the credibility of a claimant’s subjective
complaints of pain, the ALJ must consider whether these
complaints are consistent with the objective medical evidence and
other evidence in the record. See 20 C.F.R. § 1529(a). While a
claimant’s complaints of pain must be consistent with the medical
evidence to be credited, they need not be precisely corroborated
with such evidence. See Dupuis v . Secretary of Health and Human
-44- Servs., 869 F.2d 622, 623 (1st Cir. 1989) (per curiam).
Menezes argues that in evaluating his subjective complaints
of pain, the ALJ specifically ignored the “internal fixation of
[Menezes’s] left finger, a positive MRI showing a large right-
sided disc herniation and positive EMG test showing
radiculopathy, that is pain radiating down [Menezes’s] right
leg.” Pl.’s Mot. (Doc. #6) at 7 (emphasis omitted).
The ALJ applied the Avery factors to conclude that Menezes
did not experience pain at a level that would impede his ability
to perform a full range of light work. See R. at 1 7 , 1 8 . For
example, the ALJ found no evidence that Menezes’s daily
activities during the period in question were severely limited.
See id. at 1 7 . Based on evidence from Dr. Cook, the ALJ also
found that after surgery Menezes was enjoying full activities and
was planning to pursue additional training for work that was less
physically demanding than slate roofing. Id. at 1 7 , 188. The
ALJ considered the evidence from Dr. Johnson that Menezes delayed
surgery on his back because his pain waxed and waned and because
-45- he obtained a second medical opinion that back surgery was
unnecessary. See id. at 1 7 , 184. The ALJ also noted that after
Menezes’s back surgery Dr. Cook observed that Menezes was doing
well and that “[h]e was free of all back and leg pain.” Id. at
1 7 , 188. Based on all of this evidence, reviewed pursuant to
the Avery factors, the ALJ concluded that Menezes’s subjective
complaints of pain were inconsistent with the objective medical
evidence and therefore not entirely credible. See id. at 1 8 , 1 9 .
Menezes contends that the record is replete with evidence
that he suffered from pain due to his herniated disc and that the
ALJ did not consider this evidence when evaluating his pain. The
record supports Menezes’s claims of pain. See, e.g., id. at 1 4 4 ,
148, 182, 183, 185, 589. It is equally apparent that the ALJ
considered such evidence of pain. See id. at 16-18. However,
because Menezes’s back pain persisted for only a short period and
greatly subsided after his back surgery in January 1992, see id.
at 1 8 8 , the ALJ found that Menezes’s complaints of debilitating
pain lacked credibility. This finding is especially appropriate
-46- in light of the evidence from Menezes’s treating physician that
Menezes was free of all back and leg pain and enjoyed a full
range activities. See id. at 188. “It is the responsibility of
the [Commissioner] to determine issues of credibility and to draw
inferences from the record evidence.” Irlanda Ortiz, 955 F.2d at
769. I conclude that the ALJ’s determination that Menezes’s
complaints of pain were inconsistent with the medical evidence is
supported by substantial evidence and thus entitled to deference.
See Frustaglia, 829 F.2d at 195.
IV. CONCLUSION
Because I have determined that the ALJ’s conclusion that
Menezes was “not disabled” during the period of his eligibility
for disability benefits is supported by substantial evidence, I
affirm the Commissioner’s decision. Accordingly, Menezes’s
motion to reverse and remand (Doc. #6) is denied, and defendant’s
motion for an order affirming Commissioner (Doc. #8) is granted.
The clerk shall enter judgment accordingly.
-47- SO ORDERED.
Paul Barbadoro Chief Judge May 4 , 2000
cc: Edward F. Wallace, Esq. David L. Broderick, Esq.
-48-