Lord v. SSA CV-99-409-B 07/27/00 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Lord
v. Civil N o . 99-409-B Opinion N o . 2000 DNH 170
Kenneth S. Apfel, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Richard Lord seeks review of a final decision of the
Commissioner of the Social Security Administration (“SSA”),
denying his application for disability insurance benefits for the
closed period beginning August 1 6 , 1990 and ending December 3 1 ,
1995.1 I have jurisdiction to review the Commissioner’s decision
pursuant to 42 U.S.C. § 405(g) (1994). Before me are Plaintiff’s
Motion for Order to Reverse the Decision of the Commissioner
(Doc. #7) and Defendant’s Motion for Order Affirming the Decision
1 The former date is when Lord claims that his disabling impairment began; the latter is when his insured status expired. See Tr. at 200. (“Tr.” refers to the certified transcript of the record submitted to the Court by the SSA in connection with this case.) of the Commissioner (Doc. # 1 0 ) , as amended (Doc. # 1 1 ) . For the
reasons that follow, I reverse the Commissioner’s decision and
remand for further proceedings in accordance with this
memorandum.
I. Background
The relevant procedural and factual background of this case,
as described in the joint statement of material facts provided by
the parties (Doc. # 9 ) , 2 is as follows:
A. Procedural History
Lord filed his current application for disability insurance
benefits in April 1994.3 After the SSA denied Lord’s application
initially and upon reconsideration, Lord requested a hearing
before an Administrative Law Judge (“ALJ”). On June 1 2 , 1995,
ALJ Frederick Harap denied Lord’s application, finding that
2 Unless otherwise noted, the procedural and factual background set forth in this memorandum and order derives from the joint statement submitted by the parties. 3 Lord made an earlier application for disability insurance benefits in July 1991, which forms no part of the basis for the current appeal.
-2- during the relevant period Lord remained able to perform a full
range of light and sedentary work despite having a severe chronic
back condition. See Tr. at 2 3 .
On January 3 1 , 1997, the SSA’s Appeals Council denied Lord’s
request for a review of the ALJ’s decision, thus rendering the
ALJ’s decision the final determination of the Commissioner. See
id. at 6. Lord then filed a timely action in this court, seeking
review of the Commissioner’s decision pursuant to 42 U.S.C. §
405(g). On July 1 4 , 1998, I remanded the case to the SSA (1) to
determine whether (and/or to what extent) Lord’s limited ability
to bend at the waist significantly impacted his capacity to
perform the full range of light work, and if necessary (2) to
obtain expert vocational testimony as to what jobs, if any, Lord
could perform given his bending limitation. See Lord v . Apfel,
C-97-505-B, slip op. at 28-29 (D.N.H. July 1 4 , 1998). 4 In my
July 14 memorandum and order, I also determined that substantial
4 My previous opinion in this case is reproduced at pages 254-82 of the transcript.
-3- evidence in the record supported the ALJ’s decisions regarding
how much weight to give the opinions of Lord’s various doctors
and Lord’s complaints of pain. See id. at 17-26. On August 2 9 ,
1998, the Appeals Council remanded the case to an ALJ for further
proceedings consistent with my memorandum and order.
In November 1998, ALJ Ruth Kleinfeld conducted a new hearing
in this matter, at which Lord and a vocational expert (VE)
testified. On May 2 7 , 1999, the ALJ issued a decision denying
Lord’s application. In her decision, the ALJ found that although
Lord’s ability to perform light work was limited by restrictions
on stooping, working at unprotected heights, and working around
vibration, he was nonetheless able to perform a significant
number of light and sedentary jobs. See Tr. at 205, 208-12.
Lord then filed the present action for review of the
Commissioner’s decision pursuant to 42 U.S.C. § 405(g). 5
5 According to the SSA’s regulations, an ALJ’s decision on remand becomes the final decision of the Commissioner, and is thus subject to judicial review unless the Appeals Council assumes jurisdiction over the case. See 20 C.F.R. § 404.984(a) (1999). Because there is no indication in the present record
-4- B. Summary of Facts
Lord was 48 years old when his insured status expired on
December 3 1 , 1995. He left school in the eighth grade, but later
earned a GED (sometime around 1997). He previously worked in
housing maintenance, both at an apartment complex and most
recently at a mobile home park. His duties included caring for
buildings and grounds, plowing snow, shoveling, digging ditches,
and repairing broken equipment. Lord has not worked since August
1 6 , 1990, the date that he claims his disability began.
1. Medical Evidence Prior to December 3 1 , 1995
On August 1 6 , 1990, Lord twisted his back while descending
backwards off of a ladder. Complaining of stiffness in his lower
back, he visited the emergency room at a local hospital on August
2 0 , 1990. At that time, he was prescribed an anti-inflammatory
agent and a muscle relaxant, and was referred to an orthopedist.
that the Appeals Council asserted jurisdiction over the case after ALJ issued her decision on remand, the ALJ’s decision became final decision of the Commissioner and I have jurisdiction to review it pursuant to 42 U.S.C. § 405(g).
-5- Pursuant to that referral, Lord was examined by D r . Jamie
Smolen on August 2 7 , 1990. Lord complained of pain and stiffness
in his lower back and stated that the pain increased with bending
in all directions. He also complained of a limited range of
motion. At that examination, Lord performed prone press-ups and
abdominal curls with no problem. His heel and toe walking,
hopping, reflexes, motor examination, and straight-leg raising
were all normal.
At a follow-up visit on September 1 7 , 1990, Lord continued
to complain of pain, but also noted that it had decreased and
that his flexibility had increased. Dr. Smolen started Lord on
back-strengthening exercises. Dr. Smolen subsequently noted that
over the next several weeks, Lord’s condition improved with
exercise and that he experienced less pain. Despite the
progress, D r . Smolen suggested that Lord remain out of work until
his condition further improved.
After a December 1 9 , 1990 office visit, Lord continued to
complain of lower-back pain and stated that he had difficulty
-6- sitting, bending, twisting, and turning. Testing showed that the
strength of Lord’s back muscles had decreased since the previous
testing. Examination revealed discomfort with bending, knee to
chest flexion, abdominal curl, and prone extension. Dr. Smolen
indicated that Lord should not return to work. A subsequent MRI
revealed a large herniated disk at L5-S1 and a bulging disk at
L4-L5. As a result of the M R I , Dr. Smolen referred Lord to Dr.
Jonathan Sobel for a surgical consult.
Lord complained to D r . Sobel of severe pain in his lower
back, left buttock, and left leg as well as difficulty moving.
Dr. Sobel found “mild” nerve root tension and “slightly” deep
tendon reflexes at the ankle and discussed surgical options with
Lord. A subsequent CT scan confirmed Lord’s herniated and
bulging disks. When compared to the previous MRI, the CT scan
results showed no significant worsening and even slight
improvement.
On May 1 0 , 1991, Lord visited D r . Anthony Marino for a
second opinion on surgery. At that examination, Lord noted pain
-7- in the left buttock and occasional numbing of the left foot, but
also noted intermittent improvement. Lord also stated that
physical therapy provided “some relief.” Dr. Marino noted that
Lord moved about the examination room and stood on one leg, his
heels, and his toes, all without difficulty. Dr. Marino
concluded that surgery might help to relieve Lord’s leg pain.
On June 2 0 , 1991, Lord reported to Dr. Sobel that he had
been told to “take it easy for the summer” and that he was “doing
quite well after a period of rest.” Dr. Sobel was of the opinion
that Lord should be vocationally retrained. In July 1991, Lord
entered a work hardening program. Though Lord complained of pain
following therapy, Dr. Sobel attributed this pain to Lord’s
“sedentary” lifestyle. In September 1991, Lord expressed his
desire to remain in physical therapy and to return to light duty
work. D r . Sobel noted “[t]hat will be fine.”
After an October 1 0 , 1991 examination, Dr. Sobel noted that
residual functional capacity testing indicated that Lord could
perform medium to heavy work. Unable to square these results
-8- with Lord’s continued complaints of pain, D r . Sobel recommended
more objective testing. On January 1 3 , 1992, Dr. Sobel noted
that Lord’s flexibility and leg pain had improved and that he
required paraspinal muscular strengthening. D r . Sobel referred
Lord to Dr. Smolen to pursue this program.
Dr. Smolen reported on January 3 0 , 1992, that Lord was no
longer having leg pain and that his back was “simply achy, stiff
and sore.” Lord reported that he was comfortable leading a
sedentary, low activity lifestyle. Although examination revealed
“slightly limited and slightly uncomfortable” back bending, Lord
performed toe and heel walking, hopping, and abdominal curls all
without difficulty. Dr. Smolen recommended against surgery and
suggested that Lord should continue in physical therapy.
Lord next visited Dr. Smolen nearly a year later, on January
2 1 , 1993. Lord complained of lower-back pain and discomfort
performing activities around the house as well as those related
to sitting, standing, bending, twisting, and turning.
Examination revealed that Lord was able to slowly and cautiously
-9- bend toward the floor, reaching below the level of his knees.
His back extension was limited and uncomfortable, although
straight-leg raising tests, reflexes, motor strength, and sensory
examination were all normal. Dr. Smolen recommended continued
physical therapy.
Over the next few months, Lord’s condition remained
unchanged and he continued to complain of lower-back pain and
stiffness. On April 8 , 1993, D r . Smolen stated that he believed
Lord was unable to return to work. D r . Smolen further noted that
he expected “that realistically [Lord] will not return to work
until his [Worker’s Compensation] case is settled.”
Additionally, Dr. Smolen noted that Lord “will remain partially
and permanently disabled. He will never be able to perform a job
that requires repetitive twisting, turning, lifting, carrying, or
bending. . . . He will always be at a light duty work capacity,
if he ever works again.” Dr. Smolen then referred Lord to Dr.
John Thomas for more physical therapy.
-10- During a May 4 , 1993 physiatric6 consultation with Dr.
Thomas, Lord complained of lower-back pain radiating down into
the buttocks and left thigh with intermittent numbness in his
left toes. Although Lord described a “full-blown, classic,
chronic pain lifestyle,” he was taking no medications. Physical
examination revealed limited trunk rotation, lateral bending, and
extension. Lord was able to balance without difficulty, and his
gait was unremarkable. D r . Thomas diagnosed two-level disc
disease without radiculopathy.7 D r . Thomas discussed with Lord
the possibility of settling his Worker’s Compensation case and
using the proceeds to fund membership in a health center where he
could engage in an independent exercise program. Subsequent
testing revealed a twenty-two percent impairment of the whole
person.
On March 2 1 , 1994, Lord was examined by Dr. Vincent
6 The specialization in physical or rehabilitation medicine. 7 Radiculopathy means “disease of the nerve roots.” Dorland’s Illustrated Medical Dictionary 1404 (28th ed. 1994).
-11- Giustolisi. Lord complained of pain in his lower back that
radiated into both buttocks and legs. He stated that the pain
increased with activity and varied with the weather. He further
stated that he was taking no medication for the pain. Dr.
Giustolisi noted that although Lord appeared uncomfortable during
the examination, he “ambulate[d] into the office without any
difficulty” and dismounted the examination table “without any
undue discomfort.” Examination of Lord’s back revealed decreased
forward flexion and lateral bending with normal extension and
rotation of the trunk. Lord was able to heel-and-toe walk
without difficulty. Dr. Giustolisi concluded that Lord could
perform light-duty work that did not involve prolonged standing,
stooping, squatting, or lifting more than 25 pounds. He rated
Lord as having a thirteen percent impairment of the whole body.
On April 1 1 , 1994, Lord’s attorney referred him to Dr.
Andrew Rudins for examination. Lord described an “ache” in his
lower back and a “slight ache” in the left buttock that would
occasionally become a deep pain following physical therapy. Dr.
-12- Rudins noted that Lord experienced shortness of breath on
exertion, which Lord attributed to “heavy cigarette smoking.”
Lord indicated that with the exception of weekly trips to the
grocery store and the bank, he generally stayed at home and
watched television. Although he stated that he could not mow the
lawn or shovel snow, Lord stated that he would do light
housekeeping chores such as cleaning up and washing dishes.
On physical examination, Dr. Rudins noted Lord to be sitting
“comfortably in no obvious distress.” His gait, including
heel-and-toe walking, was normal. Forward flexion of the trunk
was limited, while extension was not. Rotation and lateral
extension of the trunk were nearly full with no obvious
discomfort. D r . Rudins found that Lord’s prior whole person
impairment rating of twenty-two percent was reasonable.
Additionally, Dr. Rudins determined that Lord could perform work
“at a light duty capacity” and recommended that Lord participate
in a home exercise program, gradually increasing his physical
activity level. Noting that Lord’s pain would likely persist for
-13- the foreseeable future, D r . Rudins recommended that Lord enter a
pain-management program.
In a June 2 9 , 1994 notation, Dr. Rudins noted that Lord was
limited to “sedentary activities only due to pain.” He noted
that Lord would require frequent rest breaks and again
recommended enrollment in a pain-management program.
Lord does not appear to have sought any medical care during
the period from July 1994 through September 1995. On October 2 5 ,
1995, he went to the Lahey-Hitchcock Clinic in Keene, where he
told Mary Berube, M.S., ARNP, that he suffered from chronic low
back pain. Lord reported that he did not take any particular
medication for his back, although he sometimes used aspirin and
occasionally took Tylenol. See Tr. at 335. (Lord has stated on
other occasions that he is wary about taking medications because
he is a recovering alcoholic. See id. at 52.) Lord also
reported that he felt “very depressed.” Nurse Practitioner
-14- Berube started Lord on Trazadone8 at a dosage of 150 mgs.
Nurse Practitioner Berube saw Lord once again on November
2 7 , 1995, when she noted that Lord displayed some limitation of
back motion.9 Straight-leg raising was limited to 60 degrees in
both legs due to back pain. Palpitation of Lord’s lower lumbar
spine produced mild tenderness and no spasm, see Tr. at 335, and
his reflexes and motor strength were normal. Lord reported that
he felt more depressed during “this time of the year,” but stated
that Trazadone was helping this condition.
2. Medical Evidence After December 31, 1995
Lord’s insured status for disability ended on December 3 1 ,
1995. He next sought medical care in June 1996. At that time,
he told Nurse Practitioner Berube that his back had been doing
better since his last visit, that he was sleeping better and
8 Trazadone hydrochloride is “an antidepressant used to treat major depressive episodes with or without prominent anxiety.” Dorland’s Illustrated Medical Dictionary 1736 (28th ed. 1994). 9 Lord saw D r . Makman at the Hitchcock Clinic in November 1995, but the record does not contain this physician’s report.
-15- feeling less depressed, and that he was “able to do more” and was
taking walks three days a week. Lord said that he felt ready to
try a more rigorous exercise program. His cholesterol level was
somewhat elevated, and necessary dietary changes were discussed
“at great length.” He continued on Trazadone at a dosage of 150
mgs.
In November 1996, Lord was examined by orthopedist D r .
Matthew Donovan for a Medicaid disability evaluation. Lord told
Dr. Donovan that he had persistent pain in his lower back and
left leg, which was exacerbated more by standing than by sitting.
Dr. Donovan assessed (1) radiculitis,10 and (2) MRI disc
herniation. On examination, Lord was unable to touch the floor
with his fingers, but was able to walk on his heels and toes.
Neurological findings were normal; Lord showed good muscle
strength and showed no sign of reflex or sensory deficits. Dr.
10 Radiculitis refers to “inflammation of the root of a spinal nerve, especially of that portion of the root which lies between the spinal cord and the intervertebral canal.” Dorland’s Illustrated Medical Dictionary 1404 (28th ed. 1994).
-16- Donovan felt that a prior MRI showed some nerve root compression
at L5-S1. The doctor also opined that Lord’s potential for
returning to work was poor to fair because Lord had been unable
to return to gainful employment for six years. He felt that this
was partly due to Lord’s “chronic deconditioning to the work
place.” Dr. Donovan mentioned that Lord had already been to
vocational rehabilitation, which had not provided him with any
benefit.
Lord continued to seek treatment from Lahey-Hitchcock Clinic
during 1997 and 1998. On May 2 8 , 1997, Nurse Practitioner Berube
assessed (1) anxiety/depression; (2) chronic back pain; and (3)
degenerative joint disease. Lord was planning at that time to
start a pain management program at Antioch. He felt that the
Trazadone was helpful and his nurse practitioner increased his
dosage to 250 mg. Regular office visits to the clinic through
1997 and 1998 show continued treatment for back pain and
depression/anxiety.
On December 1 0 , 1997, Lord went to Monadnock Family Services
-17- (MFS) for a mental status examination. His chief complaint was
depression and thoughts of suicide. He reported having a sleep
disturbance since 1995. Robert Duncan, M.D. and Nancy Righter,
CSW diagnosed (1) chronic pain; (2) dysthymia;11 (3) Major
Depressive Episode, moderate without psychosis; and (4)
polysubstance abuse, in remission. They rated his Global
Assessment of Functioning (GAF) at Axis V as 50. 12 Dr. Duncan
and M s . Righter noted that during the previous five years, Lord
had experienced worsened mood, greater helplessness, and lower
self-worth.
Lord continued treatment for depression at MFS during
January and February 1998. His treatment goals were to manage
11 Dysthymia is “a mood disorder characterized by depressed feeling . . . and loss of interest or pleasure in one’s usual activities and in which the associated symptoms have persisted for more than two years but are not severe enough to meet the criteria for major depression.” Dorland’s Illustrated Medical Dictionary 519 (28th ed. 1994) 12 A score of 50 on the GAF scale indicates serious symptoms or a serious impairment in social, occupational, or school functioning. See Diagnosotic and Statistical Manual of Mental Disorders: DSM-IV 32 (4th ed. 1994).
-18- more effectively his symptoms of depression and his back pain,
and to combat his feelings of isolation.
a. Dr. Smolen’s November 1998 Letter
On November 2 8 , 1998, Dr. Smolen, who was Lord’s treating
physician from August 1 6 , 1990 to April 8 , 1993, wrote a letter
at the request of Lord’s attorney that summarized his opinion of
Lord’s condition during that period. According to Dr. Smolen’s
letter, Lord suffered from acute low back strain with left-sided
herniated discs at L4 and L5-S1. Dr. Smolen wrote that Lord’s
condition progressed into chronic debilitating pain that made it
impossible for him to recover any functional capacity to work.
Dr. Smolen stated that Lord underwent a full course of
comprehensive, state-of-the-art low back computerized testing and
rehabilitation. Spinal testing results revealed that Lord’s back
fatigued quickly and considerably during a muscular effort of
only 50% of his measured lifting capacity. Computerized testing
revealed that even after strenuous exercise designed to increase
back strength by 5 0 % , Lord’s back strength was “still dangerously
-19- low.” Tr. at 294. Dr. Smolen opined that Lord was fully
cooperative and compliant with all treatment plans.
Dr. Smolen wrote that during each of his examinations, he
found Lord to be suffering from low back and leg pain with some
degree of weakness and numbness in the leg. The doctor noted
that Lord had consistent difficulty with standing, sitting,
bending, twisting, and turning. Dr. Smolen felt that Lord had to
remain sedentary at home.
Based on a review of his own records and the reports of
other (unspecified) consulting and treating physicians, D r .
Smolen concluded that Lord: (1) could sit 6 out of 8 hours with
breaks as needed to change position; (2) should avoid essentially
all lifting; (3) could (but really should not) carry 10 pounds
occasionally; (4) could use his arms and hands repetitively for
fine manipulation and grasping (but if this activity was done in
a sitting position, the total sitting time would have to be
diminished by 5 0 % ) ; (5) should not do any pushing or pulling or
repetitive operation of foot controls; (6) should never bend,
-20- squat, crawl, stoop, crouch, or kneel; (7) should avoid exposure
to unprotected heights or moving machinery; (8) should avoid
driving for more than 30-60 minutes at a time and should drive
only on smooth pavement; and (9) should avoid any activities that
increase his degree of pain.
Finally, Dr. Smolen opined in his November 1998 letter that
Lord was completely disabled from performing any kind of work
from August 1990 to April 1993, the period that Lord was under
the doctor’s treatment.
b. Rehabilitation Counselor Durant’s December 1998 Letter
On December 4 , 1998, Beth Durant, a rehabilitation counselor
with the state of New Hampshire’s Vocational Rehabilitation
program, wrote a letter about Lord at the request of his
attorney. Durant reported that she began working with Lord in
June 1996. She stated that he was interested in pursuing a
vocation despite his “disabilities.” Tr. at 303. Durant opined
that Lord demonstrated a good faith effort by obtaining a GED and
attending career-related workshops. She also wrote that Lord was
-21- never able to participate fully in Vocational Rehabilitation
services because of severe back and leg pain. She opined that
Lord’s “disabilities create significant barriers to employment.”
Id. at 303. She added that in her opinion Lord would not
overcome those barriers. Durant stated that Lord’s physical
“disabilities” had worsened and that his medical problems caused
a lot of fatigue and a decreased ability to concentrate. She
stated that it would be extremely difficult for Lord to learn new
tasks and that he could not return to his previous work. She
noted that she planned to close Lord’s file in the near future
because they had not actively worked together since mid-1997 due
to Lord’s physical limitations.
3. Testimony Offered at November 19, 1998 Administrative Hearing
a. Lord’s Testimony
At the administrative hearing held before ALJ Ruth Kleinfeld
on November 1 9 , 1998, Lord testified that he was unable to work
due to severe pain and depression. He stated that physical
therapy made his back weaker rather than stronger. He also
-22- testified that he could not squat or bend over, and that if he
kneels, he needs help to get back up. Lord testified that he
used a cane prescribed in therapy, and that he used a walking
stick that had not been prescribed by a doctor to help him to get
around.
Lord testified at the hearing that he did not have a primary
care physician after D r . Smolen retired in 1993. He expressed
dissatisfaction with other treatment sources available to him.
He reported that he first obtained Medicaid coverage under the
Aid for the Permanently and Totally Disabled (APTD) program in
1995 and that he did not have medical insurance prior to that
time.
Lord testified that his depression was not under control and
that he had suicidal thoughts. He claimed that he had problems
with depression since 1992 or 1993. He stated that half an hour
after watching television news, he was unable to remember the
content of the program. See Tr. at 246.
In his testimony, Lord described a daily routine in which he
-23- frequently needed to lie down. He stated that he got up between
7:00 and 8:00 a.m., and that between that time and noon, he spent
two hours lying down. He testified that in the middle of the day
he spent more time lying down. He stated that he got up at
approximately 3:00 p.m., and could usually sit for an hour or so
before he needed to lie down again. See id.
b. Vocational Expert Testimony
Vocational Expert (VE) Christine Spaulding also testified at
the November 1998 hearing. The ALJ asked the VE to consider a
person with Lord’s vocational profile who could perform light and
sedentary work but who was (1) required to avoid stooping; (2)
required to avoid exposure to unprotected heights or vibration;
and (3) able to perform only simple unskilled tasks due to
limitations in concentration. See Tr. at 249-50. In response to
this hypothetical, the VE testified that such a person should be
able to perform the occupations of sedentary cashier (51,000 jobs
nationally), light cashier (400,000 jobs nationally), light
general clerk (35,000 jobs nationally), sedentary surveillance
-24- monitor (10,000 jobs nationally), sedentary security guard
(50,000 jobs nationally), light security guard (200,000 jobs
nationally), sedentary inspector and checker (7,000 jobs
nationally), and light inspector and checker (55,000 jobs
nationally). In response to a hypothetical posed by Lord’s
attorney, which added to the limitations identified by the ALJ
the need to lie down at least three times during the work day for
periods of at least 15 minutes each, the VE testified that such a
person would not be able to perform any of the jobs she had
listed.
II. Standard of Review
After a final determination by the Commissioner denying a
claimant’s application for benefits, and upon a 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
-25- 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) (per curiam); 42 U.S.C. § 405(g). The
ALJ is responsible for settling credibility issues, drawing
inferences from the record evidence, and resolving conflicting
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 . Secretary of Health and Human Servs., 647 F.2d 218,
222 (1st Cir. 1981)).
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
(1st Cir. 1999) (per curiam). I apply these standards in
reviewing Lord’s case on appeal.
-26- III. Analysis
Lord makes three closely related arguments in this appeal.
First, he contends that ALJ Kleinfeld erred by failing to address
in her written decision relevant medical and vocational evidence
that he submitted after the November 1998 hearing (the “post-
hearing evidence”). See Mem. in Supp. of Pl.’s Mot. For Order to
Reverse (Doc. #7) at 3-9. Second, he claims that the ALJ’s
determination of his residual functional capacity (RFC) was
erroneous, largely because it was inconsistent with the post-
hearing evidence of his physical and mental impairments. See id.
at 10-12.13 Finally, Lord argues that the ALJ’s hypothetical
question to the VE failed to convey the extent of his physical
limitations because the question did not take into account a
13 Lord also argues that the ALJ’s RFC determination was erroneous because the ALJ “did not consider [his] non-exertional limitations, particularly his inability to stoop, within the framework of Social Security Ruling (SSR) 96-9p.” Mem. in Supp. of Pl.’s Mot. for an Order to Reverse (Doc. #7) at 1-2; see also id. at 1 1 . Because I conclude that this case must be remanded on other grounds, I express no opinion as to whether that ruling applies to Lord’s claim o r , if s o , whether it is in conflict with the ALJ’s RFC determination.
-27- critical piece of post-hearing evidence, the November 1998 letter
written by D r . Smolen. See id. at 12-14.
Although Lord raises three main arguments in his brief, his
appeal turns in large part upon a single issue: whether the ALJ
committed legal error by failing to discuss the post-hearing
evidence in her written decision. Because I answer this question
in the affirmative, for the reasons set forth below, I need not
address Lord’s other arguments.14
A. The ALJ’s Failure to Discuss the Post-Hearing Evidence
This is not a case of evidence being submitted for the first
time while the claimant’s case is before the Appeals Council or a
reviewing court. All of the post-hearing evidence was part of
the record before the ALJ when she issued her decision on May 2 7 ,
1999. See Tr. at 252-53 (noting that the record was reopened on
14 Whether it will be necessary on remand to make a new determination of Lord’s RFC and/or seek additional vocational testimony will depend upon the Commissioner’s evaluation of the entire record, including the post-hearing evidence.
-28- May 1 5 , 1999 to receive the post-hearing evidence).15 The SSA’s
regulations and directives allow for a claimant to submit
additional evidence after an administrative hearing but before
the ALJ renders her decision. See 20 C.F.R. §§ 404.936(a),
404.944 (1999); HALLEX I-2-630, 1993 WL 643026 (June 3 0 , 1994);
HALLEX I-2-678, 1993 WL 751904 (June 3 0 , 1994). Because the
post-hearing evidence was made part of the record before the ALJ
issued her decision, the fact that the evidence was submitted
after the hearing is irrelevant. Therefore, the question
presented by this case is whether the validity of the ALJ’s
decision is undermined by her failure to discuss explicitly this
15 At the November 1 0 , 1998 hearing, the ALJ agreed to leave the record open for 30 days to receive additional evidence in support of Lord’s claim. See Tr. at 231. Some of the post- hearing evidence is stamped as having been received on December 1 0 , 1998, see id. at 303 (Durant letter), 327 (MFS records), some was submitted more than 30 days after the hearing, see id. at 334, 357 (Berube notes from Lahey-Hitchcock Clinic, stamped received January 1 1 , 1999), and the remainder was received at a date that cannot be clearly ascertained from the record. It is clear, however, that all of the post-hearing evidence was docketed as part of the record on May 1 5 , 1999, twelve days before the ALJ issued her decision. See id. at 2 1 2 , 252-53.
-29- substantial body of evidence.
Examination of relevant precedent on this issue yields two
basic principles. First, the First Circuit has held that an
ALJ’s written decision need not directly address every piece of
evidence in the administrative record. See Shaw v . Secretary of
Health and Human Servs., 25 F.3d 1037, 1994 WL 251000, at *5 (1st
Cir. June 9, 1994) (per curiam; table, text available on Westlaw)
(“We agree with the district court that while the ALJ did not
expressly cite the agency doctor’s reports (only the agency
findings) he implicitly took them into account. While we would
prefer more explanatory detail, and the new regulation
contemplates greater detail, we see no reason to return this case
for the purely formulaic purpose of having the ALJ write out what
seems plain on a review of the record.”); Rodriguez v . Secretary
of Health and Human Servs., 915 F.2d 1557, 1990 WL 152336, at *1
(1st Cir. Sept. 1 1 , 1990) (per curiam; table, text available on
Westlaw) (“An ALJ is not required to expressly refer to each
document in the record, piece-by-piece.”); Goodermote v .
-30- Secretary of Health and Human Servs., 690 F.2d 5 , 8 (1st Cir.
1982) (finding no merit in claim that ALJ did not specifically
discuss doctor’s report, because ALJ quoted from other evidence
that accurately summarized the contents of that report); cf. NLRB
v . Beverly Enterprises-Massachusetts, Inc., 174 F.3d 1 3 , 26 (1st
Cir. 1999) (noting in labor relations context that “[a]n ALJ can
consider all the evidence without directly addressing in his
written decision every piece of evidence submitted by a party”).
Courts have held that an ALJ’s failure to address a specific
piece or pieces of evidence did not undermine the validity of her
conclusion, for example, when that conclusion was supported by
citations to substantial medical evidence in the record and the
unaddressed evidence was either cumulative of the evidence
discussed by the ALJ or otherwise failed to support the
claimant’s position. See Rodriguez, 915 F.2d 1557, 1990 WL
152336, at * 1 - 4 ; Goodermote, 690 F.2d at 8 ; Ortiz v . Apfel, 55 F.
Supp.2d 9 6 , 103 & n.1 (D.P.R. 1999) (concluding that therapy
notes made by psychiatrist, which were not discussed by the ALJ,
-31- did not appreciably support claimant’s claim).
At the same time, the First Circuit and district courts
within the circuit have held that an ALJ may not simply ignore
relevant evidence, especially when that evidence supports a
claimant’s cause. See Nguyen, 172 F.2d at 35 (citing cases);
Suarez v . Secretary of Health and Human Servs., 740 F.2d 1 , 1
(1st Cir. 1984) (per curiam); Dedis v . Chater, 956 F. Supp. 4 5 ,
51 (D. Mass. 1997) (“While the ALJ is free to make a finding
which gives less credence to certain evidence, he cannot simply
ignore . . . the ‘body of evidence opposed to . . . [his]
view.’”) (quoting Universal Camera Corp. v . NLRB, 340 U.S. 474,
488 (1951)); Diaz v . Secretary of Health and Human Servs., 791 F.
Supp. 905, 912 (D.P.R. 1992) (same). For a reviewing court to be
satisfied that an ALJ’s decision was supported by substantial
evidence, that decision “‘must take into account whatever in the
record fairly detracts from its weight.’” Diaz, 791 F. Supp. at
912 (quoting Universal Camera, 340 U.S. at 4 8 8 ) .
To determine whether a claimant is disabled, an ALJ must
-32- consider and evaluate all evidence, whether objective or
subjective, that is relevant to the claim. See Cotter v . Harris,
642 F.2d 7 0 0 , 704 (3d Cir. 1981), reh’g denied, 650 F.2d 481 (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).
Relevant evidence may include, but is not limited t o , the
following types of information: objective medical evidence; other
evidence from medical sources; statements about the claimant’s
impairment(s) made by the claimant or others, including testimony
offered at administrative hearings; and information from other
sources, such as public and private social welfare agencies, non-
medical sources, and other practitioners. See id.; 20 C.F.R. §§
404.1513(e) (1999). If any of the evidence in a case record is
inconsistent, the ALJ must weigh the conflicting evidence and
decide which evidence to credit. See 20 C.F.R. § 404.1527(c)(2)
(1999).
-33- In the present case, because the ALJ’s decision completely
failed to mention any of the post-hearing evidence, it is
impossible to determine whether this evidence was considered and
implicitly discredited or instead was simply overlooked. See
Cotter, 642 F.2d at 705 (“[W]e need from the ALJ not only an
expression of the evidence s/he considered which supports the
result, but also some indication of the evidence which was
rejected. In the absence of such an indication, the reviewing
court cannot tell if significant probative evidence was not
credited or simply ignored.”). The post-hearing evidence at
issue consists of five items: (1) the November 1998 letter
written by Dr. Smolen, Lord’s treating physician, see Tr. at 293-
9 6 ; (2) the office notes written by Dr. Donovan, the orthopedist
who examined Lord in November 1996, see id. at 297-302; (3) the
letter written by Rehabilitation Counselor Beth Durant on
December 4 , 1998, see id. at 303; (4) the records of Lord’s
treatment at Monadnock Family Services between December 1 0 , 1997
and February 2 5 , 1998, see id. at 304-33; and (5) Nurse
-34- Practitioner Berube’s notes documenting her treatment of Lord at
the Lahey-Hitchcock Clinic between October 2 5 , 1995 and December
1 6 , 1998, see id. at 335-57.16
At least some of this evidence is relevant to (and arguably
supports) Lord’s claim. Both parties focus their arguments most
pointedly on the letter written by Dr. Smolen in November 1998.
See Mem. in Supp. of Pl.’s Mot. For Order to Reverse (Doc. #7) at
4 , 5-7, 10-11, 12-14; Mem. in Supp. of Def.’s Mot. for Order
Affirming the Decision of the Commissioner (Doc. #10) at 2 , 3 , 7-
10. In that document, Dr. Smolen both (1) opines that Lord “was
completely disabled from any kind of work” from August 1990 to
April 1993, the period during which he treated Lord, and (2)
provides a detailed retrospective evaluation of Lord’s functional
16 Lord submitted three letters from Dr. Robert E . Smith of the Lahey-Hitchcock Clinic at the November 1 0 , 1998 hearing. See Tr. at 290-92. These records demonstrate that Lord was diagnosed with Hepatitis C in August-September 1998. The ALJ expressly discussed this evidence in her decision, concluding that there was no medical evidence to suggest that this condition had reached a severe level prior to December 3 1 , 1995, the date that Lord’s insured status expired. See id. at 202. Lord does not challenge this conclusion on appeal.
-35- limitations. See Tr. at 294-95. Both of these opinions should
have received the ALJ’s consideration.
Regarding D r . Smolen’s opinion that Lord was completely
disabled during the period of treatment, it is true that the
ultimate disability determination is reserved to the Commissioner
and that a treating physician’s opinion on the issue of
disability is therefore not entitled to controlling weight or
special significance. See 20 C.F.R. § 1527(e)(1) (1999); SSR 96-
5 p , 1996 WL 374183, at * 2 , 5 (1996); Arroyo v . Secretary of
Health and Human Servs., 932 F.2d 8 2 , 89 (1st Cir. 1991) (per
curiam). At the same time, the SSA has instructed ALJs that a
doctor’s opinion as to whether a claimant is disabled “must not
be disregarded.” SSR 96-5p, 1996 WL 374183, at * 5 . In the
present case, the ALJ’s complete failure to address Dr. Smolen’s
November 1998 letter at least raises the possibility that she
disregarded the opinion as to Lord’s disability that is contained
in that letter.
Dr. Smolen’s November 1998 evaluation of Lord’s functional
-36- limitations was also relevant evidence that should have received
careful consideration from the ALJ. This is especially true
because the functional evaluation contained in Dr. Smolen’s
November 1998 letter was both more detailed and more restrictive
than the RFC determination made by the ALJ and the hypothetical
question that the ALJ posed to the VE at the administrative
hearing. Compare Tr. at 294-95 (Dr. Smolen’s November 1998
evaluation), with id. at 205, 208, 210 (ALJ’s RFC determination)
and id. at 249-50 (hypothetical to V E ) . Unlike Dr. Smolen’s
April 1993 opinion and other medical opinions in the record, Dr.
Smolen’s November 1998 letter provided a comprehensive evaluation
of Lord’s functional limitations based upon a review of Dr.
Smolen’s records and the records of other physicians involved in
Lord’s treatment. See id. at 294. 17 Moreover, Dr. Smolen was
17 Because Dr. Smolen’s November 1998 functional assessment was so restrictive, and because it was based on medical records generated during the insured period, it was relevant evidence that should have been considered by the ALJ. Cf. Marcotte v . Callahan, 992 F. Supp. 485, 491 (D.N.H. 1997) (“Retrospective diagnoses (medical opinions of claimant’s impairments which relate back to the covered period) may be considered only to the
-37- Lord’s primary treating physician during a substantial portion of
the relevant period. While the opinion of a treating physician
is not entitled to “controlling weight” when it is “inconsistent
with the other substantial evidence in the case record,” such an
opinion is “still entitled to deference and must be weighed” in
accordance with various factors set forth in the SSA’s
regulations. SSR 96-2p, 1996 WL 374188, at *4 (1996); see also
20 C.F.R. § 404.1527(d)(2) (1999).
Because the ALJ did not address Dr. Smolen’s November 1998
evaluation of Lord’s functional limitations in her decision, I
cannot determine whether she properly weighed that evidence in
light of the applicable factors listed in the SSA regulations.
Moreover, this omission directly conflicts with the SSA’s
regulations, which provide that “[w]e will always give good
extent that such opinions both substantiate a disability that existed during the eligible period and are corroborated by evidence contemporaneous with the eligible period.”). In addition, the fact that the November 1998 letter was prepared for purposes of this litigation does not in itself detract from its evidentiary value. See Gonzalez Perez v . Secretary of Health and Human Servs., 812 F.2d 747, 749 (1st Cir. 1987) (per curiam).
-38- reasons in our notice of determination or decision for the weight
we give your treating source’s opinion.” 20 C.F.R. § 1527(d)(2).
Accordingly, while the ALJ was entitled to find Dr. Smolen’s
November 1998 letter unworthy of credit, she was not entitled to
find it unworthy of comment.
Finally, I am not persuaded by the Commissioner’s suggestion
that the opinions expressed in Dr. Smolen’s November 1998 letter
were “merely cumulative” of the doctor’s 1993 opinion, Mem. in
Supp. of Def.’s Mot. for Order Affirming the Decision of the
Commissioner (Doc. #10) at 7 , which the ALJ explicitly discussed
and rejected in her decision. See Tr. at 206. As previously
noted, Dr. Smolen’s November 1998 evaluation of Lord’s functional
limitations was more detailed, more restrictive, and based on a
wider range of medical records than his April 1993 opinion.18
18 The Commissioner acknowledges elsewhere in his brief that Dr. Smolen’s November 1998 letter presented a picture of Lord’s limitations during the relevant period that differed from that presented in his April 1993 opinion. See Mem. in Supp. of Def.’s Mot. for Order Affirming the Decision of the Commissioner (Doc. #10) at 4 .
-39- Furthermore, one the ALJ’s chief reasons for discounting Dr.
Smolen’s earlier opinion -- the possibility that it was colored
by Lord’s pending worker’s compensation case, see Tr. at 206 --
does not apply to Dr. Smolen’s November 1998 opinion, which was
apparently rendered long after Lord’s worker’s compensation case
was settled. See Mem. in Supp. of Pl.’s Mot. for Order to
Reverse (Doc. #7) at 6-7.19
Accordingly, I conclude that the ALJ committed legal error
by failing to address Dr. Smolen’s November 1998 letter in her
decision. Because I determine that this omission is in itself
sufficient basis for remand, I need not engage in extensive
analysis of the other four items of post-hearing evidence. I
19 I also find the Commissioner’s law of the case argument unpersuasive. My responsibility when performing judicial review of final decisions by the Commissioner is to determine whether the decision could be accepted by a reasonable person reviewing the evidence in the record as a whole. See Irlanda Ortiz v . Secretary of Health and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam). Accordingly, in this case I must determine whether ALJ Kleinfeld’s decision is supported by substantial evidence in the record that was before her; I cannot rely upon an opinion I previously issued when reviewing ALJ Harap’s decision, which was based on a different evidentiary record.
-40- note, however, that at least some of this evidence may also be
relevant to Lord’s limitations during the insured period and
therefore worthy of consideration on remand. For example, Lord
began receiving treatment from Nurse Practitioner Mary Berube at
the Lahey-Hitchcock Clinic in October 1995, see Tr. at 335,
several months before the expiration of his insured status.
Moreover, the ALJ should be mindful when reviewing the records
produced by Dr. Donovan and Monadnock Family Services that
“[m]edical evidence generated after a claimant’s insured status
expires may be considered for what light (if any) it sheds on the
question of whether claimant’s impairment(s) reached disabling
severity before claimant’s insured status expired.” Moret Rivera
v . Secretary of Health and Human Servs., 19 F.3d 1427, 1994 WL
107870, at *5 (1st Cir. Mar. 2 3 , 1994) (per curiam; table, text
available on Westlaw).
IV. Conclusion
It is with reluctance and a keen awareness of the importance
of finality for both parties that I remand Lord’s claim for the
-41- second time. I cannot ignore, however, the possibility that
post-hearing evidence submitted by Lord with the ALJ’s express
assent did not receive due consideration. Accordingly, I grant
Lord’s motion for an order reversing the Commissioner’s decision
(Doc. #7) and remand this case for further proceedings in
accordance with this memorandum and order. It is possible that
on remand, the Commissioner will once again conclude that during
the insured period, Lord was not disabled within the meaning of
the Social Security Act. If he reaches such a conclusion,
however, he must do so in a manner that demonstrates that all the
relevant evidence in the record was considered in accordance with
applicable legal standards. Because this remand is made pursuant
to sentence four of 42 U.S.C. § 405(g), the Clerk is instructed
to enter judgment forthwith in accordance with this order. See
Shalala v . Schaefer, 509 U.S. 292 (1993).
SO ORDERED.
-42- Paul Barbadoro Chief Judge
July 2 7 , 2000
cc: Jonathan P. Baird, Esq. David L. Broderick, Esq.
-43-