Deborah Sullivan v. SSA CV-00-476-B 12/07/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Deborah Sullivan
v. Civil No. 00-476-B Opinion N o . 2001 DNH 221
William A . Halter, Acting Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Deborah Sullivan applied for Title II Social Security
Disability Insurance Benefits and Title XVI Supplemental Security
Income on March 3 , 1998. Sullivan alleged an inability to work
since December 1 , 1997, due to nummular dermatitis, high blood
pressure, hearing loss and depression. The Social Security
Administration (“SSA”) denied her application initially and on
reconsideration. Administrative Law Judge (“ALJ”) Thomas Fallon
held a hearing on Sullivan’s claim on February 1 1 , 1999. In a
decision dated May 2 8 , 1999, the ALJ found that Sullivan was not
disabled. On August 1 1 , 2000, the Appeals Council denied
Sullivan’s request for review of the hearing decision, rendering the ALJ’s decision the final decision of the Commissioner of the
SSA.
Sullivan brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the denial of her application for benefits.
Sullivan requests that this court reverse the Commissioner's
decision and award her benefits. For the reasons set forth
below, I conclude that the ALJ’s decision is supported by
substantial evidence. Therefore, I affirm the Commissioner’s
decision and deny Sullivan’s motion to reverse.
I . FACTS1
Sullivan was fifty years old when she applied for benefits.
She has a high school education, and has worked as a waitress, a
convenience store cashier, a third-party billing clerk, and, most
recently, a mail clerk at the VA hospital from November 1997
until a year and a half later, when her contract expired. Tr.2
at 39-41, 5 0 , 125, 132, 137. Sullivan has not worked since
1 Unless otherwise noted, I take the following facts from the Joint Statement of Material Facts submitted by the parties. 2 “Tr.” refers to the certified transcript of the record submitted to the Court by the SSA in connection with this case.
-2- leaving her job at the VA hospital, and asserts that she could
not now work because of her depression and skin condition. Tr.
at 4 2 .
Sullivan has suffered from depression since her mother died
in 1997. T r . at 47-48. Her depression prevents her from doing
some normal day to day tasks, such as grocery shopping on her
own. T r . at 56-57, 143. Sullivan also has been diagnosed with
asthma, which is not severe but could become so if she does not
stop smoking, and has hearing difficulty, but can hear when she
wears hearing aides. Tr. at 4 9 , 6 2 . Finally, Sullivan has
suffered from skin disorders including dermatitis and nummular
eczema.
A. Depression
Sullivan testified that her depression began with her
mother’s death. Tr. at 47-48. On December 2 2 , 1997, D r . Mitch
Young saw Sullivan for follow-up of her depression, which he
described as situational grief reaction. Dr. Young had
previously prescribed Zoloft for Sullivan, but noted on her
December 22 visit that she had stopped taking it because she
became mentally disoriented. T r . at 169. On December 2 9 , 1997,
-3- Sullivan wanted to restart taking Zoloft. When Dr. Young saw
Sullivan on April 1 3 , 1998, for her eczema, he noted that she was
having some stress and anxiety problems with her children. Tr.
at 178.
In May 1998, D r . Young saw Sullivan for a follow-up on her
hypertension and noted that she was depressed. Tr. at 179. Dr.
Young saw Sullivan again the following month for menopause and
depression, and prescribed menopausal medication that he thought
might help with her depression.
On June 1 , 1998, Dr. William Jamieson conducted a
psychological evaluation of Sullivan, who showed some anxiety but
no indications of a thought disorder. Sullivan explained that
she had been depressed for about six months, commencing with her
mother’s death, and indicated that she did not want to go
anywhere or do anything, had not seen friends since January,
cried easily and frequently, and had difficulty concentrating.
Sullivan told D r . Jamieson that she sometimes had trouble falling
asleep, but that she sometimes slept through much of the day.
Tr. at 215. Dr. Jamieson diagnosed Sullivan as having major
depression disorder and a history of alcohol abuse that was
-4- currently in remission, but ruled out an anxiety disorder.
In June 1998, Dr. Michael Schneider, based on medical
evidence in the record, prepared a psychiatric review technique
form (PRTF) and a mental functional capacity assessment. Dr.
Schneider’s evaluation reflected that Sullivan had an affective
disorder that caused a slight restriction of her daily living
activities; moderate difficulties in social functioning; and
deficiencies of concentration, persistence or pace, leading to
failure in timely completion of tasks. Tr. at 221, 225.
According to Dr. Schneider, this meant that Sullivan’s ability to
understand, remember, and carry out detailed instructions would
be moderately limited, as would her ability to maintain attention
and concentration for extended periods; respond to changes in the
work setting; and accept instructions and respond to criticism
from supervisors. However, D r . Schneider also concluded that
Sullivan had no significant limitations in other areas such as
understanding; remembering and carrying out short, simple
instructions; working with others without distraction; working
without special supervision; getting along with others; and
maintaining socially appropriate behavior. T r . at 208-09, 212.
-5- Under Dr. Young’s supervision, Sullivan began taking Prozac
in July 1998. In August 1998, D r . Young noted that the Prozac
was having some positive effect, but also diagnosed anxiety
depression exacerbated by the recent loss of Sullivan’s brother
to cancer. He opined that continuing Prozac would be
appropriate. Tr. at 186. The next month, on September 9, Dr.
Young saw Sullivan again for her depression and noted that she
continued to be anxious and depressed, unmotivated and was
hesitant to go out and do things. Dr. Young decided to prescribe
Diazepam in addition to her other medications.
On September 1 5 , 1998, Sullivan cut her wrist with a kitchen
knife. Treatment was minimal, requiring only a band-aid, and Dr.
James Trapnell characterized the action as a suicidal gesture
rather than a suicide attempt. Tr. at 191. The next day,
Sullivan reported feeling very depressed and at risk for harming
herself. On September 1 7 , 1998, Dr. Trapnell saw Sullivan and
gave her referrals for counseling after she requested treatment
to avoid alcohol. On that day, Sullivan denied having suicidal
ideation and said that she was not certain why she had cut her
wrist.
-6- Sullivan agreed to admit herself to the Catholic Medical
Center psychiatric unit,3 and Dr. Trapnell gave her an increased
dosage of Prozac, and prescribed Vistaril. Tr. at 191. Shortly
thereafter, on September 2 4 , Dr. Trapnell observed that the
Vistaril appeared to make Sullivan more anxious, stated that he
would stop i t , and gave her a three-week supply of BuSpar. Tr.
at 192. At that time, Dr. Trapnell observed that Sullivan was
tearful and edgy and continued to have some difficulties with
life’s day-to-day activities, although for the most part she was
able to care for herself.
Dr. Trapnell completed a mental impairment questionnaire
concerning Sullivan’s functioning. T r . at 247-250. As part of
the questionnaire, Dr. Trapnell rated Sullivan’s Global
Assessment of Functioning (GAF) at 40 as of September 2 8 , 1998,
and as no higher than 45 in the preceding year. A GAF rating
between 31 and 40 indicates some impairment in reality testing or
communication, or major impairment in several areas such as work
or school, family relations, judgment, thinking, or mood. A GAF
rating between 41 and 50 indicates serious symptoms or serious
3 The record does not reflect that Sullivan ever did s o .
-7- impairment in social, occupational, or school functioning. For
both categories, a higher rating in the range implies a less
severe condition. Despite some success with Prozac, Dr. Trapnell
predicted that Sullivan’s impairment or treatment would cause
work absence more than three times a month, and difficulty
working at a regular job on a sustained basis (mostly due to poor
concentration and emotional instability).
On October 8 , 1998, Dr. Trapnell saw Sullivan and reported
that she had been feeling much better and was on the verge of
enrolling in outpatient psychotherapy through Greater Manchester
Mental Health. T r . at 195.
A month later, D r . Loring Matthews, a licensed clinical
psychologist, performed a psychological evaluation of Sullivan.
Tr. at 234-38. Dr. Matthews opined that Sullivan’s attention and
concentration were below average, her long-term memory was in the
average range, and her short-term memory was in the low average
range. Tr. at 235. At the time, Sullivan reported being
independent in day-to-day tasks, except for grocery shopping,
which she performed while accompanied by someone. Tr. at 236.
Dr. Matthews diagnosed Sullivan with having a major
depressive disorder, single episode, moderate. Tr. at 238. He
-8- predicted that Sullivan’s social interactions would be
appropriate, although somewhat limited due to her withdrawal from
others and fear of crowds, but that she might respond to
stressful situations in an inappropriate manner. He opined that
she would have some difficulty completing tasks that require her
to focus her attention for long periods of time and require her
to leave home. He recommended outpatient counseling, and
predicted that with medication and adequate counseling, Sullivan
would be able to return to work in six to twelve months.
B. Asthma/Lung Condition
In May 1997, D r . Young saw Sullivan and noted that her
chronic obstructive pulmonary disease is aggravated by smoking,
but that there were no inspiratory or expiratory wheezes or
rhonchi in her lungs. Tr. at 165. A July 1997 examination of
her lungs was negative. T r . at 166.
C. Hearing Loss
In February 1997, testing showed that Sullivan had moderate
to moderate-severe mixed hearing loss, better on the right side
than on the left. Tr. at 159, 161. She was subsequently
supplied with hearing aids, which allow her to hear. Tr. at 6 2 .
-9- D. Skin Disorders
Sullivan went to the Manchester Community Health Center
(MCHC) in February 1997 for follow up of mild solar keratosis, a
premalignant warty lesion occurring on the sun-exposed skin of
the face and hands, and a scattered rash on her back that was
likely a residual from a reaction to medication. Tr. at 162.
Treatment for the rash was hydrocortisone cream. In May 1997,
Sullivan saw Dr. Young, who noted that she had mild solar
keratosis.
In September 1997, Dr. Young saw Sullivan again and noted
that her solar keratosis had improved since cryotherapy given in
July. Tr. at 167. He also observed that she had recently broken
out in pruritic, round skin lesions on the back of her neck and
arm, and gave her Triamcinolone ointment, a topical
corticosteroid, to treat them.
On January 5 , 1998, Sullivan saw D r . F. William Danby, who
examined her dermatitis and diagnosed nummular eczema. Tr. at
198. He believed that Sullivan had a secondary infection of the
discoid patches, and that the topical steroid tended to spread
the infection. Dr. Danby prescribed Keflex, a brand of
-10- cephalexin, for the infection, as well as Triamcinolone for the
dermatosis. Tr. at 198, 242.
On January 2 6 , 1998, Sullivan saw Dr. Young for a follow-up.
Dr. Young noted that Sullivan’s nummular eczema was being treated
with moisture, oral antibiotics and an ointment, and that her
work environment is very dry. He noted that Sullivan would take
three months off from work as part of her treatment plan.
In April 1998, D r . Burton Nault reviewed medical evidence
and prepared an assessment of Sullivan’s ability to perform
physical, work-related tasks. T r . at 88-90, 199-207. In Dr.
Nault’s opinion, Sullivan had no exertional, postural, or
manipulative limitations. He did recommend, though, that she
avoid dry environments and wear cotton clothing. Tr. at 203,
205. Later, Dr. Robert Rainie agreed that D r . Nault’s opinion
regarding Sullivan’s abilities was consistent with flares of her
intermittent dermatitis. T r . at 199.
I I . STANDARD OF REVIEW
After a final determination by the Commissioner denying a
claimant’s application for benefits, and upon timely request by
-11- 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
id.; Irlanda Ortiz v . Sec’y of Health & Human Servs., 955 F.2d
765, 769 (1st Cir. 1991) (per curiam). 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, reviewing the
evidence in the record as a whole, could accept it as adequate to
support [the ALJ’s] conclusion.” Id. (quoting Rodriguez v . Sec’y
of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981))
(internal quotation marks omitted).
While the ALJ’s findings of fact are conclusive when
supported by substantial evidence, they “are not conclusive when
derived by ignoring evidence, misapplying the law, or judging
matters entrusted to experts.” Nguyen v . Chater, 172 F.3d 3 1 , 35
-12- (1st Cir. 1999) (per curiam). I apply this standard in reviewing
the issues that Sullivan raises on appeal.
III. DISCUSSION
The Social Security Act (the “Act”) defines “disability” for
purposes of both Title II and Title XVI 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.” 42 U.S.C. § 423(d)(1)(A). The Act directs an ALJ to
apply a five-step sequential analysis to determine whether a
claimant is disabled.4 See 20 C.F.R. § 404.1520. At step four,
the ALJ must determine whether the claimant’s impairment prevents
her from performing her past work. See id. § 404.1520(e). To
4 In applying the five-step sequential analysis, the ALJ is required to determine: (1) whether the claimant is presently 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 the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work. See 20 C.F.R. § 404.1520 (2000).
-13- make this determination, the ALJ must assess both the claimant’s
residual functional capacity (“RFC”), that i s , what the claimant
can do despite her impairments, and the demands of the claimant’s
prior employment. See id.; 20 C.F.R. § 404.1545(a); see also
Santiago v . Sec’y of Health & Human Servs., 944 F.2d 1 , 7 (1st
Cir. 1991) (per curiam). The claimant, however, bears the burden
of showing that she does not have the RFC to perform her 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 990, 995 (1st Cir.
1991) (per curiam); see also Keating v . Sec’y of Health & Human
Servs., 848 F.2d 271, 276 (1st Cir. 1988) (per curiam). The
Commissioner must show that the claimant’s limitations do not
prevent her 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 this case, the ALJ concluded at step four of the
sequential evaluation process that Sullivan’s impairment does not
-14- prevent her from performing her past work as a mail clerk. Tr.
at 2 8 . The ALJ determined that Sullivan retains the RFC “to
perform the nonexertional requirements of work which involves
simple job instructions that does not involve extensive contact
with the public, with a moderate limitation in the ability to
maintain attention and concentration, and no exposure to dust,
fumes or other chemical irritants.” Tr. at 2 8 . The ALJ
considered Sullivan’s educational background, age and RFC when he
decided that Sullivan could perform her past relevant work.
Sullivan argues that the ALJ’s decision was tainted by a
number of legal errors. First, Sullivan asserts that the ALJ
erred in deciding that she could perform her past relevant work
as a mail clerk. She complains that the ALJ’s decision lacks
findings pertinent to the specific demands of a mail room clerk
position, and argues that the ALJ failed to find that her prior
work environment involved no exposure to environmental irritants
that might aggravate her asthma. Second, Sullivan argues that
the ALJ erred in declining to credit her alleged functional
limitations and restrictions. Finally, Sullivan asserts that the
ALJ erred by not giving her treating source’s opinion appropriate
weight. I address each of these arguments in turn.
-15- A. The ALJ’s Decision at Step Four That Sullivan Could Perform Her Past Relevant Work
Sullivan contends that the ALJ’s decision at step four of
the evaluation process was flawed because he did not base his
decision on enough information. She argues that the ALJ failed
to comply with SSR 82-62 by failing to make a finding of fact
regarding the physical and mental demands of her past occupation.
Sullivan argues that in this case, such a finding was essential
because the ALJ also found that she had certain limitations.
Without such a finding, Sullivan contends, one is left to guess
whether the physical and mental demands of a mail room clerk
position are compatible with her exertional limitations.
The government argues, and Sullivan agrees, that an ALJ is
permitted to rely upon the Dictionary of Occupational Titles
(DOT) in order to make a finding concerning the physical and
mental requirements of a job, and that the ALJ in this case did
so. However, Sullivan asserts that the ALJ needed to state
explicitly his opinion of the physical and mental demands of a
mail room clerk position in order to conclude properly that the
demands were consistent with Sullivan’s limitations.
-16- Specifically, the ALJ should have confirmed that a mailroom clerk
position entails the need to comprehend and follow simple job
instructions, does not require extensive contact with the public,
and would not cause exposure to dust, fumes and other chemical
irritants.
I agree that the ALJ was entitled to rely upon the DOT, and
did so in order to make a finding regarding the requirements of a
mail room clerk position. The DOT includes a detailed
description of a mail room clerk position, from which it is
apparent that the position requires medium to low aptitude
ability, and a level of interaction with others that is “not
significant.” See Dictionary of Occupational Titles at §
209.687-026. The DOT also includes the amount of exposure to
environmental conditions faced by a mail room clerk, and
concludes that there is no exposure to toxic, caustic chemicals
or other environmental conditions. See id. In view of the
record evidence and the job description in the DOT, the ALJ
reasonably concluded that the physical and mental requirements
for a mail room clerk position were compatible with Sullivan’s
limitations.
-17- B. The ALJ’s Decision Not to Credit Fully Sullivan’s Alleged Functional Limitations and Restrictions
Sullivan argues that the ALJ did not properly analyze the
factors outlined in Avery v . Secretary of Health and Human
Services before he determined that her subjective allegations
were not credible. See 797 F.2d 1 9 , 29-30 (1st Cir. 1986).
Specifically, Sullivan alleges that the ALJ erred in finding (1)
that her psychological disability was not as serious as she
claimed because only two of her seven medications were prescribed
for her mental impairment; (2) that her complaints of dizziness
as a side effect from the Clonidine she took could be resolved by
reducing the amount of the medication; (3) that her suicide
gesture was less serious than she claimed; and (4) that she had
overstated her inability to care for her house. In a similar
vein, Sullivan contends that the ALJ misconstrued Dr. Trapnell’s
opinion that she was able to care for herself. Tr. at 2 6 .
1. Standards Governing an ALJ’s Credibility Determination
The SSA regulations require that the ALJ consider a
claimant’s symptoms, including complaints of pain, when he is
determining whether a claimant is disabled. See 20 C.F.R. §
-18- 404.1529(a). 5 The ALJ must evaluate the intensity, persistence,
and functionally limiting effects of the claimant’s symptoms so
that the ALJ can determine how the claimant’s symptoms limit his
or her capacity for work. See id. § 404.1529(c)(1); SSR 96-7p,
1996 WL 374186, at *1 (1996). The ALJ must consider all of the
available evidence, including the claimant’s medical history, the
medical signs and laboratory findings, the claimant’s prior work
record, and statements from the claimant, the claimant’s treating
or examining physician or psychologist, or other persons about
how the claimant’s symptoms affect her. 20 C.F.R. §
404.1529(c)(1)-(3).
5 An ALJ must apply a two-step analysis to evaluate a claimant’s subjective complaints. First, the ALJ must determine whether the claimant suffers from a medically determinable impairment that can reasonably be expected to produce pain or other symptoms alleged. See 20 C.F.R. § 404.1529(b); Da Rosa v . Sec’y 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 the claimant’s symptoms. See 20 C.F.R. § 404.1529(c). The ALJ made a specific finding regarding the first step of the analysis, determining that Sullivan “has documented impairments of depression, anxiety, asthma and hearing loss, which limit her ability to perform basic work activities.” Tr. at 2 1 . Sullivan does not take issue with this determination. Therefore, I focus on the second step of the analysis.
-19- The Commissioner recognizes that symptoms may suggest a more
severe impairment “than can be shown by objective medical
evidence alone.” Id. § 404.1529(c)(3). Accordingly, the ALJ
must evaluate the claimant’s complaints in light of the following
factors: (1) the claimant’s daily activities; (2) the location,
duration, frequency, and intensity of the claimant’s symptoms;
(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 symptoms; (5)
treatment, other than medication, the claimant receives or has
received for relief of his symptoms; (6) any measures the
claimant uses or has used to relieve symptoms; and (7) other
factors concerning the claimant’s limitations and restrictions
due to pain or other symptoms. Id. § 404.1529(c)(3)(i)-(vii);
see also Avery, 797 F.2d at 29-30. These factors are sometimes
called the “Avery factors.” In addition to considering these
factors, the ALJ is entitled to observe the claimant, evaluate
her demeanor, and consider how the claimant’s testimony fits with
the rest of the evidence. See Frustaglia v . Sec’y of Health &
Human Servs., 829 F.2d 192, 195 (1st Cir. 1987) (per curiam).
-20- In assessing the credibility of a claimant’s subjective
complaints, 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. § 404.1529(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 . Sec’y of Health & Human Servs., 869 F.2d
622, 623 (1st Cir. 1989) (per curiam). When making a credibility
determination, the ALJ must also make specific findings as to the
relevant evidence he considered in deciding whether to believe a
claimant’s subjective complaints. Da Rosa, 803 F.2d at 2 6 .
2. The ALJ’s Assessment of Sullivan’s Subjective Allegations
Contrary to Sullivan’s argument, the ALJ properly analyzed
the Avery factors and made sufficient findings as to the relevant
evidence he considered in deciding not to credit her subjective
allegations about her functional limitations and restrictions.
The ALJ heard considerable testimony regarding these factors at
the hearing on February 1 1 , 1999. Tr. at 37-79. He considered
the evidence concerning all the Avery factors when he determined
that Sullivan could perform her past relevant work. T r . at 27-
-21- 28. Substantial evidence exists in the record to support his
conclusion that Sullivan has some limitations, but that these
limitations do not preclude her from performing all work. At
this point, I will address Sullivan’s allegations regarding her
subjective complaints individually.
a. The ALJ’s Observation That Only Two of Her Seven Medications Were for Psychological Impairment
In his findings, ALJ Fallon stated, “the claimant, through
her attorney, argued that her impairments were basically
psychological in nature. Yet, of the seven medications the
claimant currently takes, only Buspar and Prozac are prescribed
for her mental impairment.” Tr. at 2 6 . Sullivan argues that the
ALJ erred in suggesting that the number of different medications
she took made a difference in the severity of her mental
impairment. She states that the important fact is that her
mental impairment was severe enough to require medication. I
agree with Sullivan that the number of different medications a
person is prescribed does not in itself reflect the severity of
an ailment. However, the record contains substantial evidence
upon which the ALJ could have concluded that Sullivan’s mental
impairment did not preclude her from working. For example, the
-22- evidence reflects that Sullivan was able to perform most
activities of daily living (“ADLs”). Tr. at 24-25. The ALJ
found that the medical evidence concerning Sullivan’s depression
and anxiety supported the conclusion that her impairments were
likely the result of situational grief, and that she has been
responsive to treatment. Tr. at 2 3 . Because this assessment is
supported by substantial evidence in the record, I find that the
ALJ’s statement regarding the number of medications Sullivan took
for her mental impairments does not constitute reversible error.
b. Sullivan’s Complaints of Dizziness as A Side Effect of Her Medication
Sullivan argues that the ALJ did not properly take into
account her complaints of dizziness that she experienced from the
medication Clonidine that she took. The ALJ considered
Sullivan’s complaint of this side effect as required by Avery and
20 C.F.R. § 404.1529(c)(3)(iv). However, he discounted the
seriousness of the complaint because the record reflects that
when she complained of the side effect, her doctor reduced the
dosage. The fact that her doctor might later have increased the
dosage does not mean that the ALJ improperly evaluated Sullivan’s
subjective complaint of dizziness. Instead, it can be inferred
-23- that ALJ Fallon concluded that if Sullivan was once again
experiencing dizziness as a side effect of her medication, she
could again go to her doctor for an adjustment in the dosage.
c. Sullivan’s Assertion That ALJ Fallon Improperly Discounted Her Subjective Testimony of Suicidal Thoughts
Sullivan testified at the February 1 1 , 1999 hearing that she
had attempted suicide in September 1998. Tr. at 5 1 . However,
there is substantial evidence in the record to support the
conclusion that Sullivan had not intended to commit suicide, but
instead had made a suicidal gesture. Tr. at 191, 1 9 2 , 195.
Therefore, the ALJ did not err when he declined to apply more
weight to Sullivan’s testimony than to that reflected by the
medical evidence.
d. Sullivan’s Assertion That the ALJ Erred In Finding That She Is Capable of Caring for Herself
Sullivan complains that the ALJ misinterpreted a statement
she made at the hearing about painting her house. She states
that he found a contradiction in that she said her apartment was
a mess, but that she had tried to paint it. Instead, Sullivan
says that her actual testimony at the hearing was that she wanted
-24- to paint her apartment, but that she had not attempted to do so.
Sullivan implicitly asserts that, if the ALJ had credited her
actual statement, he would have made a different finding about
her ability to perform her daily activities. Sullivan’s argument
is without merit.
The record contains substantial evidence to support the
ALJ’s conclusion that Sullivan was capable of taking care of
herself to a large extent. Tr. at 236. She attends to her
personal hygiene and grooming, prepares her meals, does all
household tasks including paying bills, and shops when someone
accompanies her. Tr. at 143-45, 236. A misunderstanding
regarding whether Sullivan tried to paint her apartment does not
undermine the ALJ’s finding on this point.
e. The ALJ’s Reliance on Dr. Trapnell’s Statement That Sullivan Could Take Care of Herself to a Large Extent
Sullivan similarly asserts that the ALJ erred in relying on
her treating physician’s statement that she could care for
herself to a large extent. Sullivan points out that D r . Trapnell
qualified that statement with the assertion that she continued
“to have some difficulties, however, with fulfilling some of
-25- life’s basic ADLs including proper nutrition.” Tr. at 192. As
noted above, the record contains substantial evidence that
Sullivan is capable of performing life’s basic ADLs to a large
extent, and the ALJ did not err in finding s o .
In sum, the ALJ properly considered Sullivan’s subjective
testimony. He credited her testimony where he found it credible,
and rejected it where he found it to be against the weight of the
medical evidence. Avery requires that an ALJ consider a
complainant’s subjective testimony, but it does not require that
an ALJ rely upon subjective testimony where it conflicts with
medical evidence. See 797 F.2d at 2 1 .
C. The ALJ’s Weighing of Dr. Trapnell’s Opinion
Sullivan argues that the ALJ did not give appropriate weight
to the opinions of her treating source, Dr. Trapnell. She argues
that the ALJ gave minimal attention to the following medical
opinions of Dr. Trapnell: that Sullivan suffered from major
depression; that her condition would cause her to be absent from
work more than three times a month and prevent her from working
at a regular job on a sustained basis; that she was moderately
impaired in ADLs; that she was moderately impaired in social
-26- functioning; and that she would experience deficiencies of
concentration, persistence, or pace resulting in a failure to
complete tasks in a timely manner. Sullivan asserts that the ALJ
essentially dismissed Dr. Trapnell’s opinion because he wrote in
an October 1998 report that she “had been doing much better.”
Tr. at 2 2 .
An ALJ must give controlling weight to the medical opinion
of a treating physician where the opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2).
When a treating physician’s medical opinion is not entitled to
controlling weight, the ALJ must still determine the appropriate
weight to give to the opinion by evaluating certain factors. See
id. The ALJ must consider: (i) the length of the treatment
relationship and the frequency of examination; (ii) the nature
and extent of the treatment relationship; (iii) whether and to
what extent the opinion is supported by medical signs and
laboratory findings; (iv) whether the opinion is consistent with
other evidence in the record; (v) whether the physician’s opinion
-27- concerns medical issues related to his area of specialty; and
(vi) any other factors which support or contradict the opinion.
Id. § 404.1527(d)(2)-(d)(6).
The ALJ considered Dr. Trapnell’s opinions and agreed with
them to a large extent. Tr. at 19-28. The ALJ found that
Sullivan suffers from depression and anxiety. T r . at 2 7 .
However, the ALJ disagreed with Dr. Trapnell regarding the
seriousness of this depression and anxiety. He explained that he
“does not agree with D r . Trapnell that the claimant would
experience moderate restrictions in both her daily activities and
social functioning as a result of her depression and anxiety.
The Administrative Law Judge finds the claimant’s depression and
anxiety would result in only slight restrictions in daily
activities and slight difficulties in maintaining social
functioning.” T r . at 2 4 . There is substantial evidence in the
record to support this finding.
The record indicates that Sullivan was able to perform most
ADLs, and had assistance when she needed it, such as with grocery
shopping and driving. Tr. at 143-45, 236. Although Sullivan
reported sleeping late into the afternoon, the ALJ noted that she
-28- also testified to taking Vistaril, a medication prescribed to
help her sleep, in the morning. T r . at 63-64. The ALJ also
relied upon the opinions of two other doctors who had evaluated
Sullivan. Tr. at 2 5 . Dr. Matthews had reported that Sullivan’s
social interactions would most likely be appropriate, although
limited because her recent losses had caused her to withdraw from
others and become fearful of crowds. Tr. at 2 5 . Dr. Jamieson
also reported that Sullivan had “no difficulty relating
appropriately.” Tr. at 2 5 .
There is no evidence that the ALJ unjustifiably discounted
Dr. Trapnell’s opinions. He considered them, and when he
disagreed, explained his reasoning and the alternative evidence
upon which he relied. Tr. at 24-25. The ALJ concluded that
Sullivan does suffer from depression and anxiety, and that there
should be some limitations to the type of work she does.
Specifically, he found that she is limited to work that requires
following only simple job instructions, that does not require
extensive contact with the public, and that provides a work
environments free from dust, fumes and other chemical irritants.
Tr. at 2 6 . Substantial evidence supports each of these findings.
-29- IV. CONCLUSION
Because I have determined that the ALJ’s denial of
Sullivan’s application for benefits is supported by substantial
evidence, I affirm the Commissioner’s decision. Accordingly,
Sullivan’s motion to reverse (Doc. N o . 5 ) is denied, and
defendant’s motion for an order affirming the Decision of the
Commissioner (Doc. No. 7 ) is granted. The Clerk shall enter
judgment accordingly and close the case.
SO ORDERED.
Paul Barbadoro Chief Judge
December 7 , 2001
cc: Raymond J. Kelly, Esq. David L. Broderick, Esq.
-30-