USCA1 Opinion
March 25, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1612
TIMOTHY B. MITCHELL,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Timothy B. Mitchell on brief pro se.
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A. John Pappalardo, United States Attorney, Karen L.
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Goodwin, Assistant United States Attorney, and Robert M.
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Peckrill, Assistant Regional Counsel, Department of Health &
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Human Service, on brief for appellee.
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Per Curiam. Pro se claimant Timothy Mitchell
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appeals a district court judgment that affirmed the denial of
his claim for Supplemental Security Income (SSI) benefits. A
former competitive bicyclist, claimant applied for SSI in
June 1989, when he was 24 years old. He claimed that he was
disabled due to chronic pain resulting from musculoskeletal
inflammation affecting most of his joints, particularly his
wrists and hands. Claimant alleged that his pain was
aggravated by repetitive motions and hot weather. In 1987,
claimant secured a bachelors degree in cultural anthropology
from the University of Massachusetts. He held various part-
time jobs during and after college, including those of a
dishwasher, psychiatric counsellor, prep cook, psychiatric
aide, stock person, bus person, and salesperson. His last
position was as a telephone fundraiser, which required
frequent repetitive use of the hands in dialing and writing.
After claimant's application was denied upon initial
review and reconsideration, claimant represented himself at a
hearing before an administrative law judge (ALJ). The ALJ
reviewed the conflicting medical evidence and determined that
claimant had no exertional limitations and only a "marginally
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severe somatoform disorder."1 The ALJ concluded that while
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1. Somatoform disorders are characterized by,"[p]hysical
symptoms for which there are no demonstrable organic findings
or known physiological mechanisms." See 20 C.F.R. Part 404,
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Subpart P, App. I, 12.07. This listing may be satisfied if,
inter alia, the medical evidence documents either: (1) "[a]
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the latter condition moderately impaired claimant's ability
to maintain persistence and pace, thereby preventing him from
performing his past work as a telephone fundraiser, it did
not prevent the claimant from performing his other past jobs.
Thus, the ALJ denied claimant's application at step four of
the sequential evaluation process. See Goodermote v.
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Secretary of Health and Human Services, 690 F. 2d 5, 6-7 (1st
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Cir. 1982). The district court affirmed this conclusion and
claimant has taken a timely appeal. Having thoroughly
reviewed the record, we also affirm for the reasons discussed
below.
I.
We first review the medical and other evidence which is
essential to a complete understanding of claimant's
allegations. The record discloses that claimant bicycled
16,000 kilometers (or 10,000 miles) in various races during
the summer of 1983. He began having health problems in 1984,
and consulted Dr. Robert Leach, an orthopedic surgeon, for
pain behind his left knee. Claimant reported that he had
recently had surgery on his left thigh for compartment
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history of multiple physical symptoms of several years
duration, beginning before age 30, that have caused the
individual to take medicine frequently, see a physician often
and alter life patterns significantly; or" (2) [p]ersistent
nonorganic disturbance of ... [s]ensation (e.g., diminished
or heightened)" or (3) [u]nrealistic interpretation of
physical signs or sensations associated with the
preoccupation or belief that one has a serious disease or
injury;...." Id., 12.07(A).
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syndrome and that he had previously consulted numerous
doctors and chiropractors for various other pains.2 He had
taken Indocin (an anti-inflammatory agent) and Butazolidan (a
rheumatoid arthritis treatment) without relief and had also
undergone a myelogram. Apart from an area of tenderness
around claimant's left knee semitendinosis tendon, physical
exam was completely normal and Dr. Leach "was impressed with
how loose [claimant] was." Dr. Leach made no diagnosis or
recommendations. He stated that he did "not have any ideas
as to where to go from here" in view of the extensive studies
claimant had already undergone.
There are no medical records from 1985, during which
claimant was apparently enrolled in college and worked at
various times as a prep cook and adolescent psychiatric
counsellor. In November 1986 claimant consulted Dr. Jonathan
Kurtis, another orthopedic surgeon, for bilateral arm pain
associated with his job as a dishwasher. Dr. Kurtis reported
that his evaluation was negative for a severe problem and
that "it was thought that he had an occupational tendonitis
of his wrist."3 Claimant graduated from college in May
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2. Compartment syndrome is "a condition caused by inward
pressure of an artery reducing blood supply. It can result
in a permanent contraction of the hand or foot." See Mosby
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Medical Encyclopedia, p. 182 (1985).
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3. Claimant returned to Dr. Kurtis in January 1987 for left
heel pain cause by his cross-country ski boots. In reporting
these findings to the Social Security Administration (SSA),
Dr. Kurtis emphasized that he had not seen claimant since
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1987. While claimant's vocational report does not identify
it, the medical records suggest that at some point following
his graduation claimant either volunteered or worked in an
administrative position with the Institute for International
Development and Cooperation.
In September 1987 claimant consulted Dr. Lawrence
Schiffman, a rheumatologist, complaining of bilateral wrist
pain while he was working as a dishwasher and a carpenter.
He reported a history of tendonitis in his shoulders, knees,
and elbows (epicondylitis) while also complaining of groin
pain and lower back pain, although the latter was not
chronic. Claimant denied morning stiffness and sleep
problems. Physical examination disclosed that claimant had a
full range of musculoskeletal motion, although he experienced
tenderness at the base of the thumb and Achilles tendon. Dr.
Schiffman recorded an impression of tendonitis and prescribed
Feldene, an arthritis medication. Follow-up lab tests for
rheumatoid arthritis were negative.4 Claimant apparently
travelled to Africa at some point in 1988 and returned to Dr.
Schiffman in April with complaints of pain at the base of the
thumbs and groin. He again denied morning stiffness; no
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1987 and had no diagnosis consistent with chronic disability.
4. In January 1988, Dr. Schiffman advised claimant that he
had been unable to make a diagnosis of systemic tissue
connective disease (arthritis) based on his laboratory tests
and physical examination.
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swelling was present. Apart from the areas of tenderness
noted, physical exam was essentially normal. Dr. Schiffman's
again recorded an impression of tendonitis and continued to
prescribe medications. Follow-up lab tests for rheumatoid
arthritis, Lyme disease, and HIV were negative.
At some point during 1988 claimant also travelled to
Denmark. There he sought further evaluation of his pain.
Claimant returned to Dr. Schiffman in July 1988 complaining
of bilateral wrist, groin, and thigh pain. He was then
taking Ibuprofen. Claimant reported that he was able to swim
but that this resulted in increased pain. Physical exam
disclosed no swelling nor other positive findings. Dr.
Schiffman advised claimant to stop swimming and prescribed
ultrasound therapy for his wrists. Between July and September
1988 claimant underwent weekly ultrasound treatments at the
Easthampton Physical Therapy Services. He reported
experiencing some improvement from the pain in his wrists,
although he did not attribute it to the treatments.5 At the
conclusion of the treatments Dr. Schiffman referred claimant
to Dr. Allison Ryan, a specialist in neurology and
psychiatry, stating that he had "not been able to establish a
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5. Claimant also consulted an occupational therapist at the
Communication Enhancement Clinic of the Children's Hospital
in Boston, although he was not referred there by any health
care providers identified in the record. Claimant sought
computer components to eliminate the need for repetitive
wrist motions.
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diagnosis" although he felt claimant's symptoms were "most
likely due to an overuse syndrome, worsened by
deconditioning."6
In November 1988 claimant applied for services at the
Massachusetts Rehabilitation Commission (MRC). Shortly
thereafter he began working part-time as a telephone
fundraiser for the Progressive Group, Inc. On January 4,
1989, claimant returned to Dr. Schiffman, continuing to
complain of "tendonitis" in his wrists and knees. Physical
exam again disclosed no swelling and a full range of motion.
Claimant denied morning stiffness and reportedly was walking
regularly (10-20 minutes). On the following day, claimant
was examined by Dr. Charles Brummer, a family physician who
evaluated claimant for the MRC. Dr. Brummer recounted
claimant's extensive history of complaints and unsuccessful
treatments for pain in his legs, hips, shoulders, and elbows.
Despite treatment with multiple medications, claimant
reported that he experienced no relief. Physical exam was
normal, with a full range of musculoskeletal motion and no
swelling, heat, or redness, although claimant subjectively
complained of pain with motion and palpation. Dr. Brummer
concluded that claimant suffers from a soft tissue
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6. We note that following his hearing before the ALJ,
claimant submitted a letter to the Appeals Council wherein he
alleged that Dr. Ryan concluded that claimant has chronic
pain syndrome and fibromyalgia, a condition discussed infra.
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However, Dr. Ryan's records are not before us.
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inflammatory disease such as chronic tendonitis or, "more
probably a fibromyositis or fibromyalgia syndrome" which
often respond poorly to medications.7 He suggested that
claimant was not capable of work and advised him to avoid
significant lifting, climbing, or repetitive motions. Based
on Dr. Brummer's evaluation, in January 1989 the MRC
determined that claimant was eligible for vocational
rehabilitation services as a severely handicapped
individual.8 Claimant also began weekly acupuncture
treatments with Jonathan Klate, Ph.D., a licensed
acupuncturist. Dr. Klate continued to treat claimant
throughout the time his claim was pending and submitted a
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7. Fibromyalgia is pain in the fibrous tissues, muscles,
tendons, ligaments, and other white connective tissues,
frequently affecting the low back, neck, shoulders and
thighs. See The Merck Manual (16th ed. 1992), pp. 1369-70.
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As Dr. Brummer's report suggests, the term fibromyalgia is
often used interchangeably with fibromyositis, or fibrositis.
See Lisa v. Dept. of Health and Human Services, 940 F.2d 40,
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43 (2nd Cir. 1991). This condition has only been recognized
over the last several years. It causes severe
musculoskeletal pain, stiffness and fatigue due to sleep
disturbances, although physical examinations will generally
be normal. See Preston v. Secretary of Health and Human
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Services, 854 F.2d 815, 818 (6th Cir. 1988). The disease
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cannot be confirmed by objective tests, rather, the diagnosis
is made by exclusion and the elicitation of tenderness at
certain "'focal tender points.'" Id. Fibrositis patients may
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also have psychological disorders; the disease afflicts women
significantly more often than men. Id.
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8. It appears that the MRC simply assisted claimant in
securing computer software and components that would allow
him to pursue employment without exacerbating his condition.
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report to the SSA which opined that claimant was
significantly disabled.
Claimant resigned from his position as a telephone
fundraiser around June 29, 1989, claiming that he was
physically unable to meet the job's requirements due to wrist
and hand pain aggravated by warmer weather. He applied for
SSI benefits on the same day. Claimant was subsequently
examined by two internists on behalf of the SSA, Dr. Enrico
Petrillo and Dr. Dwight Robinson. Dr. Petrillo reported a
normal physical exam and concluded that claimant had
musculoskeletal symptoms of burning and pain in the muscles
and tendons bilaterally. He did not assess claimant's
residual functional capacity (RFC). Dr. Robinson found that
claimant exhibited 20 degree flexion contractures of both
elbows, but that claimant's joint exam was otherwise
unremarkable. In particular he noted that there was no
swelling or tenderness and no muscle atrophy. Dr. Robinson
indicated that claimant might have a variant of fibromyalgia
and that his functional ability was clearly limited by his
symptoms, although he did not assess claimant's RFC. He
advised claimant to pursue gradual muscle strengthening
exercises and possibly to try an antidepressant.9
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9. Dr. Robinson also noted that claimant might have an early
form of scleroderma, a disease that would not account for
claimant's symptoms.
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Based on the aforementioned medical evidence, the SSA
secured an assessment of claimant's exertional RFC from Dr.
Harvey Wald, a non-examining consultant. Dr. Wald concluded
that claimant was limited to light work. Consequently, the
SSA denied claimant's initial application and claimant filed
a request for reconsideration. Claimant consulted another
rheumatologist, Dr. Robert Gray, on December 7, 1989.
Physical exam again disclosed that both elbows showed a 20-30
degree loss of full extension, but flexion was full. There
was no synovial (joint) swelling, no fibrositic trigger
points, and no evidence of muscle atrophy or weakness. Dr.
Gray concluded that claimant suffered from arthralgias (joint
pain) and myalgias (muscle pain) of undetermined etiology and
that his symptoms were atypical of fibrositis syndrome. On
December 13, 1989, claimant was examined by Dr. Jerome
Siegel, another consulting internist. Physical exam
disclosed that claimant appeared well, had no history of
sleep disturbance, and again exhibited a full range of motion
with no synovial thickening. No trigger point tenderness
areas were palpated. Shoulder x-rays and lab tests were
normal. Dr. Siegel made a differential diagnosis of pain
disorder involving the joints with questionable fibromyalgia,
somatization disorder, and chronic pain disorder. Neither
Dr. Gray nor Dr. Siegel assessed claimant's RFC.
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Finally, on January 24, 1990, claimant was evaluated for
the SSA by Dr. Sanford Bloomberg, a psychiatrist. Claimant
reported that he suffered from a "painful condition" that
affected essentially all of his major joints although his
complaints were "completely subjective." Although claimant
reported that his activities had become extremely constricted
as a result, he was then taking graduate courses and applying
to graduate school at the University of Massachusetts. He
was also the editor of his church newsletter and participated
in a young adult group. Despite being able to shop, cook,
and participate in the aforementioned activities, claimant
professed that he was in constant pain. He denied trouble
sleeping. Dr. Bloomberg stated that, "[t]he only diagnosis I
would make would be a somatoform pain disorder, with no
related organic pathology, which so far, can be specifically
identified to document the diagnosis that some physicians
have made for him, fibrocytis or fibromyalgia." Dr.
Bloomberg noted that where one local expert (presumably
referring to Dr. Gray) had concluded that claimant did not
have fibrositis, claimant's complaints of pain were grossly
in excess of what one would expect if he had any
pathology.10 While Dr. Bloomberg did not assess claimant's
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10. Dr. Bloomberg also observed that claimant's alleged
incapacity was not objectively observable and that claimant
presented as "vigorous, full of energy, walking and sitting
down and rising ... with no difficulty apparent."
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RFC, the SSA secured a mental RFC evaluation from Dr. Joseph
Lichtman, a psychologist. Dr. Lichtman concluded that
claimant suffered from a somatization disorder which would
often result in deficiencies of persistence, concentration,
and pace resulting in a failure to complete tasks in a timely
manner. However, he found that claimant's activities of
daily living and ability to maintain social functioning were
only slightly limited, and that claimant never suffered from
episodes of deterioration or decompensation in work or work-
like settings.
The ALJ credited Dr. Lichtman's functional findings in
concluding that claimant was not disabled. He specifically
found that claimant does not have a medically determinable
physical impairment that could reasonably be expected to
result in the degree of pain and functional loss that
claimant has alleged. The ALJ then evaluated claimant's
subjective pain complaints in accordance with Avery v.
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Secretary of Health and Human Services, 797 F.2d 19, (1st
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Cir. 1986), and concluded that claimant's subjective
allegations were not credible in view of claimant's
activities as a graduate student and church member, the fact
that there was no physical basis for claimant's pain, and the
fact that claimant took no medications at the time of the
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hearing.11 The ALJ found that claimant's residual
functional capacity was not significantly restricted
exertionally and that his somatoform disorder only prevented
him from performing his past job as a telephone fundraiser.
After the hearing claimant submitted additional letters to
the Appeals Council where he recounted that he had begun a
course of treatment with amitriptyline, an anti-depressant
used to treat fibromyalgia. The Appeals Council declined
review, thus rendering the ALJ's decision final.
II.
We are bound to affirm the Secretary if his decision is
supported by substantial evidence on the record as a whole.
See, e.g., Rodriguez v. Secretary of Health and Human
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Services, 647 F.2d 218, 222 (1st Cir. 1981). Any claimant
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seeking disability benefits bears the initial burden of
proving that his condition prevents him from performing his
former type of work, not just that he cannot return to a
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particular job. See Gray v. Heckler, 760 F.2d 369, 372 (1st
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Cir. 1985). And, as the Secretary's regulations provide that
even part time work may constitute substantial gainful
activity, the fact that all of claimant's past positions were
part time jobs does not require a finding of disability. See
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Davis v. Secretary of Health and Human Services, 915 F.2d
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11. Claimant had been accepted to graduate school and
expected to attend classes for two, eight-hour days per week
at the time of the hearing.
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186, 189 (6th Cir. 1990); 20 C.F.R. 416.972(a)(work may be
substantial even if it is done on a part time-basis).
On appeal, claimant argues that the evidence establishes
that he meets the Somatoform Disorder Listing ( 12.07)
because he has repeatedly suffered from episodes of
deterioration or decompensation at work, as evidenced by the
fact that he has withdrawn from several of his past jobs due
to wrist tendonitis. Claimant also contends that the ALJ
should have given more weight to the reports of his health
care providers (e.g., Drs. Schiffman, Brummer, and Klate),
particularly where the doctors who assessed claimant's
residual functional capacity did not even examine him.
Claimant emphasizes that he is unable to use his upper
extremities and, since most jobs entail this requirement, he
is unable to perform his past jobs and any other substantial
gainful activity. Each of these arguments must fail given
our limited standard of review and the conflicting evidence
in the record.
First, while it is true that the ALJ found that
claimant satisfied three of the paragraph A criteria required
to meet the Somatoform Disorder Listing, see n. 1, supra, the
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record amply supports the ALJ's conclusion that claimant does
not suffer from the degree of functional loss required to
meet the paragraph B criteria of 12.07. Thus, even if
claimant resigned from his job as a telephone fundraiser due
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to increased pain, this alone does not establish that he
experienced the repeated episodes of deterioration in the
work place required to satisfy 12.07. Moreover, claimant's
testimony and contact with the SSA supports the ALJ's
conclusion that his activities of daily living and social
functioning were not significantly impaired. Claimant
resides with seven people, is able to do some cooking,
cleaning, writing, and driving, in addition to participating
in church activities and attending graduate school while his
SSI claim was pending. Even with the restrictions claimant
has identified, these activities do not suggest a level of
impairment consistent with total disability. Thus, the ALJ
did not err in concluding that claimant failed to prove that
he satisfies the Somatoform Disorder Listing.
With respect to claimant's second contention, it is
well-established in this circuit that a treating physician's
opinion may be rejected by the Secretary, who may accord
greater weight to his own experts. See, e.g., Keating v.
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Secretary of Health and Human Services, 848 F.2d 271, 272
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(1st Cir. 1988)(per curiam); Barrientos v. Secretary of
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Health and Human Services, 820 F.2d 1, 2-3 (1st Cir.
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1987)(per curiam); Sitar v. Schweiker, 671 F.2d 19, 21 (1st
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Cir. 1982)(per curiam). In concluding that claimant suffered
only from a somatoform disorder and not from a physical
impairment (e.g. fibromyalgia), the ALJ credited the opinions
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of Drs. Siegel and Bloomberg, both of whom suggested the
diagnosis of somatoform disorder, and the opinion of
claimant's own rheumatologist, Dr. Gray, who stated that
claimant's symptoms were inconsistent with fibrositis,
particularly noting the absence of trigger point tenderness
and complaints of poor sleep. There was no error in the
ALJ's decision not to place more weight on the opinions of
claimant's other health care providers. The ALJ correctly
observed that the disability opinion expressed by claimant's
acupuncturist was not entitled to the weight that might be
accorded a physician since the regulations do not recognize
acupuncturists as acceptable medical sources. See 20 C.F.R.
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416.972(a)(acceptable medical sources include licensed
physicians, osteopaths, psychologists, optometrists, and
record custodians). To be sure, the record arguably
supported a finding that claimant does suffer from a physical
impairment - fibromyalgia - that does limit him
exertionally. But since conflicts in the evidence are for
the Secretary to resolve, see, e.g., Burgos Lopez v.
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Secretary of Health and Human Services, 747 F.2d 37, 40 (1st
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Cir. 1984), we cannot second guess the ALJ's decision to
credit the evidence which undermined this diagnosis.
The ALJ rejected claimant's contention that he is
prevented from working because he cannot use his upper
extremities, finding that his complaints of disabling pain
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and functional loss were not credible. An ALJ's credibility
determinations are owed "considerable deference." Dupuis v.
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Secretary of Health and Human Services, 869 F.2d 622, 623
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(1st Cir. 1989). Nevertheless, we question the ALJ's
conclusion that claimant suffers from no exertional
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limitations. In the first place, this finding is
contradicted by Dr. Wald, the SSA's consultant who found that
claimant was exertionally limited to light work. And given
the significant number of physicians who reported that
claimant suffered at least some loss of function due to his
subjective symptoms, we question whether the ALJ as a layman
was qualified to conclude that claimant suffered no
exertional limitations even if he found the cause of
claimant's condition to be a mental impairment (i.e, a
somatoform disorder) as opposed to a physical impairment.
See Walston v. Gardner, 381 F.2d 580, 585 (6th Cir.
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1967)(pain may be disabling even if partly caused by an
emotional problem). As a general rule, an ALJ is not
qualified to assess residual functional capacity on the basis
of bare medical findings. See, e.g., Berrios Lopez v.
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Secretary of Health and Human Services, 951 F.2d 427, 430-31
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(1st Cir. 1991). However, the record supports the ALJ's
implicit conclusion that claimant retained the capacity for
light work. In particular, we note that the duties of
claimant's past salesperson job fall within this exertional
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category, and that "the type of work involved in a sales
clerk job would not necessarily involve continual use of both
arms and hands for long periods of time ...." Gray v.
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Heckler, 760 F.2d at 374. The same can be said of claimant's
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past job as a psychiatric aide. Accordingly, where
substantial evidence supports the ALJ's conclusion that
claimant can do at least some of his past jobs, the judgment
of the district court is affirmed.
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