Diomede-Reynolds v. SSA CV-07-222-PB 04/01/08
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Ann Diomede-Reynolds
v. Case N o . 07-cv-222-PB Opinion N o . 2008 DNH 068 Michael J. Astrue, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Ann Diomede-Reynolds moves to reverse the Commissioner of
Social Security’s determination that she is not eligible for
disability insurance benefits (“DIB”). For the reasons set forth
below, I grant in part Diomede-Reynolds’ motion to reverse, deny
the Commissioner's motion to affirm, and remand this case to the
Social Security Administration.
I. BACKGROUND1
A. Procedural History
Diomede-Reynolds filed an application for DIB in March 2001,
alleging disability since February 2000. T r . at 69-71. This
1 The background information is drawn from the Joint Statement of Material Facts (Doc. N o . 8 ) submitted by the parties. Citations to the Administrative Record Transcript are indicated by “Tr.” application was initially denied, and Diomede-Reynolds requested
a hearing before an administrative law judge (“ALJ”). T r . at 33-
37. The hearing took place on August 2 9 , 2002, and the ALJ
denied her application on October 2 1 , 2002. T r . at 266-77, 440-
72. After Diomede-Reynolds requested review, the Appeals Council
vacated the ALJ’s decision and remanded the matter for a new
hearing. T r . at 284-86.
On remand, the ALJ held two supplemental hearings. At the
first hearing, which took place on April 2 7 , 2005, the ALJ heard
testimony from Diomede-Reynolds, her husband, and a medical
expert. T r . at 473-513. At the second hearing, which took place
on July 2 7 , 2005, the ALJ heard testimony from Diomede-Reynolds’
husband, two medical experts, and a vocational expert (“VE”).
Tr. at 514-69.
On August 2 2 , 2005, the ALJ applied the five-step process2
specified in 20 C.F.R. § 404.1520 and denied Diomede-Reynolds’
2 When determining whether a claimant is disabled, the ALJ is required to make the following five inquiries: (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 the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work. 20 C.F.R. § 404.1520.
-2- application. T r . at 21-31. Specifically, the ALJ found that
although Diomede-Reynolds’ impairments (panic disorder, anxiety
disorder, elevated dopamine levels, and hypertension) were
collectively severe, they did not meet or equal a listed
impairment (step three), and they did not prevent her from
performing her past relevant work as a teacher and a human
resource manager (step four). T r . at 3 0 .
The ALJ’s decision became the final decision of the
Commissioner when the Appeals Council denied Diomede-Reynolds’
request for review. T r . at 9-11. Diomede-Reynolds then timely
filed the present action.
B. Education and Work History
Diomede-Reynolds was 58 years old in February 2000, when she
allegedly became disabled, and 64 years old when the ALJ denied
her application in August 2005. T r . at 6 9 . She is a college
graduate and received a masters degree in 1984. T r . at 8 4 . Her
past relevant work (“PRW”) was as a human resources manager and a
teacher. T r . at 8 0 , 101-04. She last worked in February 2000,
and her date last insured for DIB purposes was December 3 0 , 2005.
Tr. at 7 2 .
-3- C. Medical Evidence
Although Diomede-Reynolds reported no health complaints at a
routine check-up in 1999, she underwent treatment for sinusitis
(sinus inflammation) and hypertension (high arterial blood
pressure) in January 2000. T r . at 2 0 4 , 208-09, 211. In February
2000, she was hospitalized due to an episode of uncontrolled high
blood pressure. T r . at 182. Urine testing revealed that her
dopamine levels were elevated. T r . at 193. After four days, she
was discharged in improved condition. T r . at 194-95. After her
release, D r . Lauren Maza noted that although Diomede-Reynolds’
blood pressure was usually “very well-controlled,” it sharply
increased when Diomede-Reynolds failed to take her usual dose of
clonidine (an anti-hypertensive medication) -- apparently
referring to the crisis which resulted in Diomede-Reynolds’
hospitalization. T r . at 219.
During follow-up visits in March and April 2000, D r . Mariano
Battaglia indicated that Diomede-Reynolds continued to suffer
from elevated blood pressure. T r . at 223, 226. He recommended
that she remain out of work until July 2000. T r . at 227.
In July 2000, Diomede-Reynolds told D r . Battaglia that she
had taken a leave of absence from work and would be retiring
-4- after the leave ended. T r . at 229. She reported that she felt
“fine” and was tolerating her medications well, and her home
testing showed that her blood pressure was mostly controlled.
Tr. at 229. In September 2000, shortly before she moved to New
Hampshire, Diomede-Reynolds reported that her blood pressure had
been “a little bit u p , but not tremendously out of range,” and
that she was otherwise “not having any major problems.” T r . at
232.
In December 2000, Diomede-Reynolds was seen at Pittsfield
Medical Center in New Hampshire. She reported that over the
preceding year, she had experienced difficulty managing her
hypertension, but that “semi-retirement” and anxiety medications
had brought her blood pressure under control. T r . at 235. At a
follow-up visit in January 2001, she reported that her
hypertension was “very well controlled” other than one rare
elevation. T r . at 236. In March, she reported that her anxiety
levels were improved and that, as a result, her hypertension had
“settled down.” T r . at 237. In June, she reported that her
hypertension and anxiety were both well-controlled, but that she
felt unable to return to a classroom to teach. T r . at 238.
-5- In September 2001, D r . Warren Fitzergald conducted a
psychological examination of Diomede-Reynolds. T r . at 249-53.
He noted no signs of mood difficulties or current anxiety. Tr.
at 251. On the Beck Anxiety Inventory, her responses indicated a
severe problem with anxiety, while her answers to the Beck
Depression Inventory fell within the minimal range. T r . at 252.
In terms of function, D r . Fitzgerald concluded that Diomede-
Reynolds showed good understanding and memory and was capable of
interacting well with others, that her concentration and task
completion were likely to be good unless she was tired or
distressed, and that her ability to adapt to work situations and
interact with supervisors was adequate. T r . at 252. Her primary
problem came from her feelings of anxiety regarding work, which
might cause her blood pressure to rise in work situations. T r .
at 252.
Dr. Paul Clark was Diomede-Reynolds’ internist in New
Hampshire. The first diagnosis from D r . Clark in the record is
dated June 1 7 , 2002, and indicated that Diomede-Reynolds’
hypertension was not adequately controlled and that her desire
for disability benefits was reasonable “for a number of reasons.”
Tr. at 259-60. On the same day, D r . Clark drafted a letter
-6- opining that “returning to a stressful environment with
acceleration of her hypertension would put her at increased risk
for stroke and I would consider it inadvisable to do this.” Tr.
at 261. He did not think she had any limitations on her ability
to meet the physical demands of work, other than the need to
avoid lifting more than ten pounds (a limitation he attributed to
her age rather than her hypertension). T r . at 262-65. Her
primary limitation, he opined, arose from “stress related
problems exacerbating her hypertension.” T r . at 265.
In July 2002, D r . Clark noted that Diomede-Reynolds’ anxiety
and hypertension were both “improved,” and her home blood
pressure readings -- while higher than ideal -- were closer to
the goal. T r . at 376. In September 2002, D r . Clark treated
Diomede-Reynolds for an ear-related ailment and then an upper-
respiratory infection; during both visits, she mentioned no
complaints regarding hypertension or anxiety. T r . at 3 7 7 , 379.
In October 2002, D r . Clark treated her for pain in her right
knee; although it did not limit her activities, she expressed
concern that it might be arthritis. T r . at 382. D r . Clark
diagnosed the pain as instead being caused by bursitis. T r . at
383. He also noted that her anxiety disorder was well-
-7- controlled. T r . at 383.
In January 2003, Diomede-Reynolds reported some difficulty
in managing her blood pressure after switching from oral
clonidine to clonidine patches. T r . at 385. In February 2003,
her blood pressure seemed to be “under excellent control” and she
told D r . Clark that she was “doing quite well.” T r . at 387.
Diomede-Reynolds again reported that she felt “quite well”
overall in June 2003. T r . at 396. D r . Clark noted that her
average blood pressure was under reasonable control despite
labile (borderline) hypertension. T r . at 397. In December 2003,
she was again “doing very well in general” with labile
hypertension but no chest pain or shortness of breath. T r . at
400.
At her next visit with D r . Clark, in July 2004, Diomede-
Reynolds reported no new symptoms; although her blood pressure
was higher than ideal, she stated that she was monitoring it
closely and generally doing better. T r . at 407.
In November 2004, D r . Richard Boss, a cardiologist, examined
Diomede-Reynolds at the referral of D r . Clark. T r . at 409. She
indicated that there had not been any dramatic change in her
functional condition over time, and stated that although she once
-8- experienced a mild chest ache after engaging in moderate
activity, she did not have any patterns of exertional chest
discomfort, lightheadedness, syncope, ankle swelling, or
nocturnal shortness of breath. T r . at 409. D r . Boss concluded
that although her current medical regime was unable to bring her
hypertension under more than marginal control, it remained
appropriate. T r . at 410.
In August 2001, D r . Nault, a state agency physician,
reviewed Diomede-Reynolds’ medical records and concluded that she
would be able to perform light level work. T r . at 240-44.
Although her limitations were more extensive during her episode
of uncontrolled hypertension in February 2000, the aggravated
severity had not persisted for more than twelve months and no
physician currently described disabling limitations. T r . at 244.
The following month, D r . Nault conducted another review and
concluded there was no basis for altering his initial assessment.
Tr. at 248.
In September 2001, D r . Michael Schneider, a state agency
reviewing psychologist, concluded that Diomede-Reynolds had no
vocationally significant limitations of mental functioning. Tr.
at 254-57.
-9- Dr. Gerald Koocher appeared as a psychological expert at the
April 2005 hearing before the ALJ. T r . at 499-511. He testified
that although Diomede-Reynolds’ self-reported condition tended to
suggest that she suffered from work-related anxiety, the record
did not establish any marked impairment in any areas of mental
functioning. T r . at 507-09.
Dr. Morton Solomon appeared as a medical expert at the July
2005 hearing. T r . at 529-46. He testified that the elevated
urine dopamine level measured during Diomede-Reynolds’ January
2000 hospitalization indicated the presence of an adrenal tumor.
Tr. at 530-33. This tumor, he opined, created episodes of high
dopamine levels, which in turn caused Diomede-Reynolds to suffer
from hypertension. T r . at 534-44. He was confident that a tumor
existed because he knew of nothing else that would have caused
the elevated dopamine reading. T r . at 540-41. Based on this
diagnosis, D r . Solomon opined that although Diomede-Reynolds’
condition “doesn’t meet any of the specific listings,” it was
equal in severity to listings 9.06 (hyperactive adrenal cortex),
6.02C5 (persistent fluid overflow syndrome), and 2.02 (visual
acuity). T r . at 2 6 , 533-40.
-10- Dr. James Claiborn also appeared as a medical expert at the
July 2005 hearing. T r . at 555-59. He testified that nothing in
the medical record suggested that Diomede-Reynolds met the
criteria for an anxiety-related mental impairment. T r . at 556-
58.
D. Vocational Evidence
Mr. Howard Steinberg appeared as a VE at the August 2002
hearing. He testified that Diomede-Reynolds’ work as a teacher
was a skilled job both typically and actually performed at the
light level. T r . at 465. Her job as a human resources manager
was a skilled job that was typically performed at the sedentary
level, but was light as she had actually performed i t . T r . at
465. When asked by the ALJ to assume that Diomede-Reynolds could
perform sedentary work that involved no climbing, balancing,
kneeling, crouching, crawling, or stooping, M r . Steinberg opined
that she could transfer her skills to the sedentary job of
personnel clerk. T r . at 466-48. This occupation would not
involve the same work stress issues faced by a human resources
manager. T r . at 469. In identifying this occupation, M r .
Steinberg noted that it would involve only a limited degree of
vocational adjustment from her prior work as a human resources
-11- manager, and took into account the fact that Diomede-Reynolds was
nearing retirement age. T r . at 471-72.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
or reversing the decision of the ALJ. My review is limited to
determining whether the ALJ used the proper legal standards and
found facts based upon the proper quantum of evidence. Ward v .
Comm’r of Soc. Sec., 211 F.3d 6 5 2 , 655 (1st Cir. 2000); Nguyen v .
Chater, 172 F.3d 3 1 , 35 (1st Cir. 1999).
The ALJ’s findings of fact are accorded deference as long as
they are supported by substantial evidence. Ward, 211 F.3d at
655. Substantial evidence to support the ALJ’s factual findings
exists “if a reasonable mind, reviewing the evidence in the
record as a whole, could accept it as adequate to support his
conclusion.” Ortiz v . Sec’y of Health & Human Servs., 955 F.2d
765, 769 (1st Cir. 1991) (quoting Rodriguez v . Sec’y of Health &
Human Servs., 647 F.2d 2 1 8 , 222 (1st Cir. 1981)). If the
substantial evidence standard is met, the ALJ’s factual findings
-12- are conclusive even if the record “arguably could support a
different conclusion.” Id. at 770. The ALJ’s findings are not
conclusive, however, if they are derived by “ignoring evidence,
misapplying the law, or judging matters entrusted to experts.”
Nguyen, 172 F.3d at 3 5 .
The ALJ is responsible for determining issues of credibility
and for drawing inferences from evidence on the record. Ortiz,
955 F.2d at 769. It is the role of the ALJ, not the role of this
court, to resolve conflicts in the evidence. Id.
III. ANALYSIS
A. Weight Given to Dr. Solomon’s Opinion at Step Two
Diomede-Reynolds argues that the ALJ gave insufficient
weight to D r . Solomon’s opinion that Diomede-Reynolds’
impairments met or equaled listings 9.06, 6.02C5, and 2.02. In
his decision, the ALJ stated that because the alleged tumor “has
not been definitively shown to actually exist by any medically
acceptable diagnostic test,” the ALJ “cannot give D r . Solomon’s
medical opinion regarding the listing level severity of the
claimant’s elevated dopamine levels any significant weight.”
-13- (Tr. at 26.)
Diomede-Reynolds argues that, by rejecting D r . Solomon’s
conclusion that a tumor existed, the ALJ was substituting his own
lay opinion for D r . Solomon’s uncontroverted medical judgment.3
To reach his tumor diagnosis, D r . Solomon relied upon the
elevated urine dopamine levels identified when Diomede-Reynolds
when she was hospitalized in 2000, along with Diomede-Reynolds’
other medical records and testimony by her husband. T r . at 530-
33. Although D r . Solomon is the only medical expert in this case
to opine that a tumor exists, none of the other experts expressed
opinions that were inconsistent with D r . Solomon’s diagnosis.
Thus, D r . Solomon’s tumor diagnosis is uncontroverted by other
medical evidence in the record. Even i f , as the Commissioner
argues, there is a high likelihood that D r . Solomon’s diagnosis
is incorrect, the ALJ inappropriately substituted his own lay
3 Alternatively, Diomede-Reynolds characterizes the question of whether a tumor exists or not as a red herring; the ultimate issue, she argues, is whether her adrenal gland dysfunction caused a sufficiently limiting impairment, not whether she has a tumor or not. That reasoning i s , however, wrong. D r . Solomon concluded that the adrenal gland dysfunction equaled the relevant listings because of the alleged tumor. Thus, D r . Solomon’s conclusion that the dysfunction equaled the relevant listings cannot stand if the ALJ acted correctly in discounting D r . Solomon’s underlying conclusion that a tumor exists.
-14- judgment for D r . Solomon’s when he rejected D r . Solomon’s
diagnosis. Ramos v . Barnhart, 60 Fed. Appx. 3 3 4 , 335 (1st Cir.
2003) (“Significantly, no physician . . . rejected such a
diagnosis. Thus, by concluding that claimant did not have a
somatoform disorder, the ALJ was substituting his own lay opinion
for the uncontroverted medical evidence.”); Rose v . Shalala, 34
F.3d 1 3 , 18 (1st Cir. 1994) (“[A]n ALJ is not free to substitute
his own judgment for uncontroverted medical opinion”). The ALJ’s
actions here overstepped the boundaries of what the ALJ may
decide, which justifies a remand for further adjudication.4
4 Diomede-Reynolds argues that this court should order an award of benefits rather than remanding the case for further adjudication. It is by no means clear, however, that Diomede- Reynolds is indeed entitled to DIB. Although there are some indications in the record that excessive urine dopamine levels are suggestive of the presence of the tumor, D r . Solomon’s application of that technique may well be incorrect or misleading. Without more expert testimony on the issue, neither I nor the ALJ can know whether this is the case. Accordingly, simply directing the Commissioner to award benefits would be inappropriate. See Seavey v . Barnhart, 276 F.3d 1 , 11 (1st Cir. 2001) (“[O]rdinarily the court can order the agency to provide the relief it denied only in the unusual case in which the underlying facts and law are such that the agency has no discretion to act in any manner other than to award or to deny benefits”).
-15- B. Weight Given to and Discussion of Dr. Clark’s Opinion at Step Four
Diomede-Reynolds argues that the ALJ either gave
insufficient weight to or mischaracterized D r . Clark’s opinion
regarding how the combination of hypertension and anxiety
affected her RFC. In his decision, the ALJ relied upon D r .
Clark’s conclusions regarding physical impairment but determined
that the weight of the medical evidence was not consistent with
Dr. Clark’s conclusions regarding the effect of anxiety on
Diomede-Reynolds’ RFC.
Substantial evidence existed to support the ALJ’s conclusion
that Diomede-Reynolds’ anxiety did not reduce her RFC to the
point that she would be unable to return to her PRW. First,
although D r . Clark did prescribe anti-anxiety medication, he did
not refer her for psychological evaluation or treatment for her
anxiety. Meanwhile, as the ALJ noted, the other medical experts
testified that Diomede-Reynolds did not suffer from any
vocationally significant mental limitations. T r . at 28-29. Dr.
Koocher indicated that he found no evidence of significant mental
limitations. T r . at 507-09. D r . Fitzgerald opined that Diomede-
-16- Reynolds should have no problems with concentration or task
completion unless she became tired or distressed. T r . at 252-53.
Dr. Claiborn found that there was no evidence that she met the
criteria for an anxiety-related mental impairment. T r . at 556-
58. Accordingly, D r . Clark’s anxiety conclusions were not
entitled to controlling weight, and it was within the ALJ’s
discretion to discount those conclusions. There is no basis for
reversal on this ground.
C. Conclusions Regarding Diomede-Reynolds’ Mental Impairment
Diomede-Reynolds argues that the ALJ failed to make a
specific finding regarding the effect that her panic and anxiety
disorders had on her RFC. To the contrary, however, the ALJ
explicitly found that the medical evidence did not support
Diomede-Reynolds’ allegations that her psychological ailments
caused vocationally significant limitations. T r . at 28-29. This
conclusion was supported by substantial evidence from Drs.
Koocher, Fitzgerald, and Claiborn. T r . at 2 8 . Accordingly, this
argument has no merit.
-17- IV. CONCLUSION
The ALJ improperly substituted his medical judgment for D r .
Solomon’s uncontradicted medical opinion that Diomede-Reynolds
suffers from a disabling adrenal tumor. Additional evidence on
this issue is required. Accordingly, I grant in part plaintiff’s
motion to reverse (Doc. N o . 6 ) , deny defendant’s motion to affirm
(Doc. N o . 7 ) , and pursuant to sentence four of 42 U.S.C. §
405(g), remand this case to the Social Security Administration.
The clerk is directed to enter judgment in accordance with this
order and close the case.
SO ORDERED.
/s/Paul Barbadoro ___ Paul Barbadoro United States District Judge
April 1 , 2008
cc: Peter Marsh, Esq. Robert Rabuck, Esq.
-18-